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Legislative Updates

• Q1 2022 Legislative Updates

  Q1 2022 Legislative Updates

  Here is a summary of legislative and regulatory developments and challenges for the first quarter of 2022 and their practical implications:

  Texas WC Network Regulation:  In January, the Texas Division of Workers’ Compensation proposed revisions to existing WCN regulations, explaining that changes were needed to clarify the provisions and to implement legislative amendments to the Insurance Code. These proposed changes are extensive and bear attention of WC system participants. Among the prominent proposed provisions are the following:

  • Location and service type identification requirements for WCN participating providers have been made much more specific.
  • Networks must give prior notice to TDI of any proposed change of ownership.
  • Networks must give prior notice to TDI regarding modifications to network configurations involving telehealth services.
  • Network contracts and subcontracts with providers must include a statement that a carrier contesting compensability may not deny payment prior to the issuance of a notice that the injury was not compensable.
  • Carriers and employers must have a documented procedure for determining which is responsible for obtaining signed employee acknowledgements of the employer’s network participation as well as signed copies of the employee acknowledgements.
  • By September 23, 2022, networks must have a documented credentialing process that meets NCQA or URAC standards.
  • Networks may only use Texas-licensed doctors to perform in-network utilization reviews.

  Implications: Payers, certified WCNs and specialty networks should review their policies and procedures in preparation for TDI’s enforcement efforts based on these proposed regulations. California MPN Legislation:  A once-onerous bill has been brought back to life, but in a much-diminished form. As originally proposed 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 would have restricted MPNs’ ability to review provider bills for mistakes, fraud and abuse. Through intense opposition by WC payers and employers, 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. In January, a revised AB 399 was unanimously passed by the Assembly and sent to the Senate.  In its current state, the measure merely requires payers to provide employees, within five business days of their request, with the MPN’s name and identification number. The payer may satisfy this requirement by providing the information in writing or an explanation of benefits or by posting the information on a website. Implications: Through a concerted lobbying effort, the earlier version of AB 399 was converted into a reasonable provision giving employees timely and useful information. Without any discernable opposition, the measure is very likely to be enacted and signed into law.

• Q4 2021 Legislative Updates

  Q4 2021 Legislative Updates

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

  New York: Amendments to the Workers’ Compensation Board Medical Billing Disputes regulation became effective on November 1. These amendments require all objections to medical bills be filed with the Board simultaneously rather than sequentially. As amended, 12 NYCRR 325-1.25 now provides that the Board will deny any objections to payment of a health care provider’s bills that are not raised simultaneously in Form C-8.1, including objections based on legal, valuation or Medical Treatment Guideline grounds. The regulation is further amended to require payers, if the objection relates to the provider’s failure to obtain prior authorization, to provide with the filing evidence that the prior authorization request was actually denied. Implications: The New York State WCB, in adopting these revisions, cited the need to expedite the resolution of medical payment disputes in the interest of administrative efficiency. The new requirements, however, appear to place the burden of improved timeliness primarily on insurers, employers and TPAs. The revisions may present challenges for payers’ claim staff in compiling and presenting all potential objections to medical bill payment within New York’s 45-day prompt payment timeline.

• 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.