Policy Matters Brief June 29, 2021

June 29, 2021 · Policy Matters team

Colorado legislation permitting injured workers to choose their treating physician fails
Colorado SB 197 that would have provided injured workers control over the selection of their primary treating physician in workers' compensation cases failed to pass this legislative session. The bill would have allowed injured workers to choose from any Level I or Level II accredited physician. Existing law requires injured workers to select a physician from a list provided by their employer or insurer.

SB 197 passed the Senate but was postponed indefinitely in the House Business Affairs and Labor Committee in late May. The Colorado General Assembly adjourned June 8, 2021.

Michigan auto no-fault fee schedule rule-making progresses – DIFS posts additional guidance
Rule-making

The Michigan Department of Insurance and Financial Services (DIFS) published on June 7, 2021, a modified version of their previously proposed auto no-fault fee schedule rules based on comments received during the public comment period. The modified rules provide minimal additional clarity to the medical fee schedule provisions in the state’s 2019 auto no-fault reform law, which are scheduled to go into effect for treatment rendered after July 1, 2021.

Of note, the rule language was amended to clarify that a provider is not required to supply a “regional average” charge (as originally proposed). Rather, DIFS will consult (only in connection with a provider appeal) the FAIR Health database to determine an average amount for the applicable geozip:

For providers who do not have a charge description master or average charge amount as of January 1, 2019; or
When there is a new service or product that did not exist on January 1, 2019.

Another revision clarifies that the Medicare fee schedule as of March 1 of the “service year” is to be used for those services with Medicare rates. “Service year” is defined as the period from July 2 through July 1 of the following year. This applies to services rendered during that service year regardless of any subsequent change made to that Medicare fee schedule.

These fee schedule rules have to be reviewed by the state legislature’s Joint Committee on Administrative Rules (JCAR) before they can take effect. JCAR has 15 legislative session days to review under the state’s rule-making procedures, which can be much longer than 15 calendar days depending on the legislature’s schedule.

Additional guidance

DIFS also published onJune9,2021, supplemental guidance and information related to the pending fee schedules, including posting additional lists of providers eligible for enhanced reimbursement, as well as an updated fee schedule FAQ.

Under the reform law, some providers are eligible for enhanced (increased) reimbursement if they meet specific criteria. Earlier this year, DIFS posted a list of freestanding rehabilitation facilities eligible for enhanced reimbursement. They more recently posted lists of providers with certain indigent volume and hospitals that are Level I or II trauma centers that are also eligible for enhanced reimbursement.

Some of the statements made by DIFS in the updated fee schedule FAQ relate to language in the pending rules, such as their proposed use of FAIR Health data in certain appeals.

We encourage you to listen to our June “Policy Guys” podcast episode for a discussion on auto law reforms in Michigan and Florida.

Michigan proposes changes to workers’ comp health care services rules
The Michigan Workers’ Disability Compensation Agency has proposed updates and changes to their health care services rules. Proposed changes include updates to procedure coding and reimbursement source documents, new language governing reimbursement for ground ambulance services and modified topical medication reimbursement language.

Existing rules state:

Commercially manufactured topical medications that are over the counter (OTC) or contain OTC ingredients and do not meet the definition of “custom compound” are to be dispensed in a 30-day supply or less
Reimbursement is to be based on a maximum of the acquisition cost invoice plus a single dispensing fee of $8.50

Proposed changes would:

Apply these provisions (with some modifications) to all commercially manufactured topical medications, not just those that are OTC or contain OTC ingredients; and
Add that a provider will only be reimbursed one dispensing fee per topical medication in a 10-day period

A public hearing is scheduled for July 7, 2021, with written comments also due that day.

For more on topical medications, we encourage you to listen to our May “Policy Guys” podcast episode on the subject.

New York updates form requirements related to the CMS-1500 project
As the New York Workers’ Compensation Board (WCB) evolves the processes for billing and disputes, part of their larger CMS-1500 project, they continue to release provider and payer updates for certain next steps or requirements. The WCB recently released a bulletin, Subject Number 046-1362R that updates use of the C-8.1 (Notice of Treatment Issue/Disputed Bill) and the C-8.4 (Notice to Health Care Provider and Injured Worker of a Carrier’s Refusal to Pay all/portion of a Medical Bill Due to Valuation Objection(s)) forms when used in conjunction with the CMS-1500 for medical services billing.

The update includes an immediate change to reporting Social Security numbers, as well as revisions to the C-8.1 and C-8.4 forms as part of the WCB's transition to the universal billing form, Form CMS-1500. The WCB will be issuing new versions of the C-8.1 and C-8.4 forms and has updated the payer implementation schedule related to the CMS-1500 initiative. Among other updates, the WCB release includes a guide on the issues listed below:

Social Security numbers

Effective Immediately, the WCB will no longer require an injured worker's full nine-digit Social Security number (SSN); instead,
Only the last four digits of the SSN are required on current paper forms – until updated forms are released by the WCB
Payers completing the paper version of these forms should provide the last four digits of the injured worker's SSN in the following format: XXX-XX-1234
Each form (C-8.1 and C-8.4) will be revised to reflect this change at a later date

CMS-1500 Initiative

The C-8.1 and C-8.4 forms will be updated to clarify potential objections and to eliminate certain obsolete sections currently found on the left side of Form C-8.1, entitled: Part A Notice of Objection Regarding Further or Future Treatment
The objection reason currently listed under Part A of Form C-8.1, "Requested treatment is not for an established site or condition," will be moved to the Request for Further Action by Carrier/Employer (Form RFA-2)
- A new version of Form RFA-2 will be published later in 2022
- Form C-8.1 will be renamed Form C-8.1B
The new C-8.1B and C-8.4 forms will become effective July 1, 2022, and will become mandatory 45 days after the effective date
- At that point, the current versions of the forms will not be accepted, and no action will be taken by the WCB should a payer continue to use them

As the CMS-1500 project marches on, our Public Policy and Regulatory Affairs team continues to monitor the WCB for key developments. We urge all impacted stakeholders to continue to use the
CMS-1500 project website to gather further information.

SAWCA to meet in person again
The Southern Association of Workers’ Compensation Administrators (SAWCA) is scheduled to meet in-person again for the first time in over a year. SAWCA’s 73rd Annual Convention will take place at the Homestead in Hot Springs, Virginia July 12-16, 2021.

SAWCA is an organization comprised of 21 state workers’ compensation agencies and several industry companies, including Optum, that come together to share ideas, perspectives and common concerns to improve workers ’ compensation for all. More information on the Annual Convention can be viewed online here.