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Legislative Updates

• 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.

• 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.