Resources

Legislative Updates

• 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.

• Q4 2019 Legislative Updates

  Q4 2019 Legislative Updates

  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.

• Q3 2019 Legislative Updates

  Q3 2019 Legislative Updates

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

  California

  Senate Bill 537 has been signed into law by Governor Newsom.  The law requires networks to provide a standardized disclosure form to their payer clients, if network provider reimbursements are less than 80 percent of the Official Medical Fee Schedule rates.

  • Implications

  The Division of Workers’ Compensation is given the task of developing the provider reimbursement disclosure form required by this provision, which becomes effective July 1, 2021.  MedRisk will be following the DWC’s work closely to ensure that the form provides information that is clear and operationally useful. The California Consumer Privacy Act, recently enacted, greatly expands protections for California residents regarding the unauthorized sale and commercial use of personal consumer information gathered through online transactions such as purchases, social networking and use of “free” applications.  A particular target is the undisclosed profiling of individuals without their knowledge, especially when these individuals are children.

  • Implications

  MedRisk does not sell or commercially use personal consumer information gathered through online transactions. And, because the act specifically exempts from its reach any individually identifiable health information covered by federal or state privacy laws, this legislation has no effect on MedRisk’s communications with providers and payer customers.  Its largest impact will be on business entities that use consumer data mining in their marketing strategies.

  Illinois

  The Workers’ Compensation Commission has published proposed regulations implementing last year’s SB 904, which clarified Illinois’ prompt payment requirements imposed upon WC payers.  The proposed regulation (50 IL Adm. Code 9110) once adopted would clear up ambiguities contained in the legislation regarding grounds payers can use for denying provider bills.

  • Implications

  Stakeholders have until October 28 to send comments to the WCC.  Some observers have complained that the proposed regulation should have gone further in addressing such issues as permitted grounds for providers’ lawsuits against payers, criteria for the imposition of interest penalties on unpaid provider bills, and the timing when those interest payments are due.  Unless the WCC reopens its rulemaking process to consider these questions, their answers may be determined only by costly and lengthy litigation.

• Q2 2019 Legislative Updates

  Q2 2019 Legislative Updates

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

  California

  Senate Bill 537 – introduced this past April – has been passed out of the California Senate and the Assembly Insurance Committee and will now be presented to the Assembly Appropriations Committee.  Language from the bill that would have prohibited WC network discounts below 100% of Medicare rates has been removed. Nevertheless, the bill still contains ambiguous language threatening to disrupt the administration of Medical Provider Networks (MPNs) as they currently operate.

  • Implications

  Although advocated only by a handful of California physical therapists, the bill broadly applies to all medical services and MPNs. As currently drafted, the bill could disrupt California’s successful MPN system, resulting in higher costs for payers, employers and taxpayers. MedRisk and other organizations are urging the adoption of clarifying wording that would eliminate unnecessary confusion and preserve effective MPN operations. The intervention of employers and commercial payers, however, is also needed.  For more information, please contact your MedRisk account representative.

  New York

  New York Governor Andrew Cuomo has signed into law an omnibus budget bill containing authorization for providers of acupuncture to treat injured workers within the WC system, provided the patient has a referral from a physician or nurse practitioner.  Physical and occupational therapists are among the clinicians that are permitted to perform acupuncture if they are certified to perform these services.  The Workers’ Compensation Board, which supported this expansion, has proposed a regulation (12 NYCRR 323.1) and is accepting comments through August 18, 2019.

  • Implications

  When the regulation is adopted by the WCB, New York will join a handful of other states in authorizing payment for acupuncture under workers’ compensation when the services are deemed medically necessary.  Most of the jurisdictions that affirmatively permit acupuncture for WC claimants require a referral from a treating physician.

  Nevada

  Nevada has recently enacted two laws that impose new regulatory requirements on workers’ compensation managed care.  Senate Bill 365 requires all “health carriers,” including workers’ compensation payers, to explicitly state contract rights and obligations in provider agreement and to maintain a website listing all customers granted network access via the provider agreement.  The new law is due to take effect on January 1, 2020, after the Division of Industrial Relations has adopted implementing regulations. Nevada also enacted Senate Bill 381, which permits a WC insurer to limit employee choice of physician or chiropractor to those listed on its provider panel, but only if the panel contains, by discipline or medical specialty, at least twelve providers or, if there are fewer than twelve authorized by the Division, all of the members of the discipline or specialty.

  • Implications

  Neither of the new statutes have much impact on MedRisk workflows for operations in Nevada.  MedRisk provider agreements and operations already conform to the “best practices” standards of SB 365.  Further, the increased network access standards of SB 381 relate only to physicians and chiropractors.

• Q1 2019 Legislative Updates

  Q1 2019 Legislative Updates

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

  California

  In January 2019, California became the first state to adopt a fee schedule using 32 distinct regional rates for MSA-based localities, based on Medicare Geographic Practice Cost Index (GPCI), which is now in the process of a six-year phase-in. Since many jurisdictions currently use other Medicare payment rules, and since use of dominant Medicare regional payment methodology offers both improved health care access to claimants and operational economies to WC agencies, it is probable that other states will follow suit.

  • Implications

  The primary beneficiaries of the GPCI based regional fee schedule are providers in some of the higher-cost urban areas, who would see regulatory rate increases. Payers would be required to modify their bill review systems in order to properly track regulatory rates and providers’ treatment locations.

  Arkansas and Virginia

  Arkansas and Virginia have recently enacted legislation to join the PT Compact, an interstate reciprocal agreement permitting physical therapists licensed in one state to practice in another.  There are now 23 member states, and other states including Georgia, Maryland, Massachusetts, Michigan, and Nevada, have legislation pending to join the PT Compact in 2019.

  • Implications

  The PT Compact facilitates the nationwide rollout of MedRisk’s TeleRehab Program by removing administrative barriers to multi-jurisdictional practice by a MedRisk clinician. Using appropriate telecommunications technology, the MedRisk TeleRehab PT evaluates and treats injured workers in their homes or workplaces, expediting the delivery of care and avoiding needless travel.

• Q4 2018 Legislative Updates

  Q4 2018 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the fourth quarter of 2018 and their practical implications:

  New York

  The New York Workers’ Compensation Board published its long-awaited fee schedule revision on December 26. The new rates and payment rules go into effect on April 1, 2019. MedRisk’s early analysis indicates that physical therapy regulatory rates will increase significantly, due in large part to a 50% increase (from eight to twelve) in PT relative value units. Rates for chiropractic treatment were also raised. The Board also dropped an earlier proposal to cap physical medicine sessions after 12 visits or 180 days of service, retaining the current rule that permits more than 12 treatments or more than 45 days of therapy or chiropractic treatment if the need is fully documented by a physician. In other New York news, a New York appellate court in November upheld the WCB’s authority to change its policy regarding application of the New York medical treatment guidelines to out-of-state providers treating New York claimants. Previously, the WCB applied its guidelines to in-state providers and to out-of-state treatment received by New York residents, but now applies them to all in-state and out-of-state providers treating New York claimants, even if the claimant lives outside New York.

  • Implications

  The fee schedule increase is the first in 20 years. Because the New York fee schedule is very low compared to other states and to estimates of providers’ cost of care expenses, the increases may expand injured workers’ access to medical care by encouraging more providers to treat WC claimants. Regarding application of New York medical treatment guidelines to out-of-state providers, this initiative may prompt pushback from out-of-state providers unfamiliar with New York’s substantive protocols and administrative procedures.

  Texas

  Through a complex regulatory process, the delivery of telehealth services to workers’ compensation claimants located in Texas by physical therapists is now permissible in Texas. The regulations broadly support the delivery of these services by a PT provider, regardless of his or her location, who has an unrestricted Texas license or who has a Compact Privilege to practice in Texas. The standard of care is the same as applies in an in-person setting, with customary informed consent and confidentiality requirements. Earlier in the year, the Division of Workers’ Compensation removed the requirement that the patient must be located in a rural location. Next, a new Texas statute permitting the delivery of telehealth services opened these services to health professionals including physical therapists. Finally, effective November 11, 2018, the Texas Board of Physical Therapy Examiners adopted standards asserting the necessary regulatory authority over telehealth services delivered by PTs.

  • Implications

  Texas joins a growing number of major states encouraging telerehab services for injured workers. The increasingly friendly regulatory environment should encourage rapid expansion of these services.

  Illinois

  On November 27, the Illinois General Assembly overrode outgoing Governor Rauner’s veto of Senate Bill 904, thereby supporting Illinois providers to charge 1% per month interest for late payments for WC-related services. The legislation also requires payers to affirmatively notify providers within 30 days when a payment has been denied.

  • Implications

  This measure reinforces providers’ existing rights by giving them an administrative process via the Workers’ Compensation Commission for collecting late-payment interest. The law places corresponding pressure on payers to process medical bills quickly and to ensure that denials are timely communicated.