Policy Matters Brief November 1, 2021

November 1, 2021 · Public Policy & Regulatory Affairs Team

Both sides voice opinions in Colorado Physicians Choice Forum
During a Physician Choice Forum held in October by the Colorado Division of Workers' Compensation (DWC), stakeholders voiced opinions both supporting and disagreeing with the current system. The forum allowed stakeholders to discuss legislation that failed to pass earlier this year (SB 197) that would have allowed injured workers to choose from any Level I or Level II accredited physician; whereas, existing law requires them to select a physician from a list provided by their employer or insurer.

More than 100 attendees participated in the forum moderated by DWC Director Paul Tauriello. They kicked of the event with Representative Andrew Boesenecker, an SB 197 sponsor, sharing why SB 197 was originally filed. Representatives from insurers, employers, networks, providers and injured worker communities spoke next. Generally, more were in favor of the current physician panel/network system than against, with some voicing potential support for expanding the number of employer/insurer-listed providers from which an injured worker can choose.

Michigan DIFS issues guidance on auto no-fault billing disputes, fee schedule resources and application

The Michigan Department of Insurance and Financial Services (DIFS) continues to issue bulletins related to implementation of the 2019 auto reform law, particularly related to billing and reimbursement under the state’s new auto no-fault fee schedules.

Three recent bulletins are outlined below:

1. Billing disputes

The first bulletin reminds stakeholders that under the law, benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and amount of the loss sustained.

If a bill is not provided to an insurer within 90 days after the product or service is provided, the insurer has 90 days to pay before benefits are overdue.

The bulletin states DIFS may consider any of the following to violate the law. Insurers found to be violating the law will be subject to administrative action.

Repeatedly refusing to pay claim amounts that are not reasonably in dispute

The bulletin states, “An insurer may not withhold payment entirely while it awaits clarification on ‘the exact amount of money [it owes]” and states that, “If an insurer is liable for at least some of the bill, the insurer must at least pay that amount prior to the expiration of the time frame for payment under [the law] while they investigate whether they are liable for more than the amount paid.”

Insisting on a specific form as the sole basis for refusing payment

DIFS is aware of some insurers refusing to pay provider bills because they are not in the insurer’s preferred billing format or on their preferred form. As a result, the bulletin includes a reminder that the law does not mandate a provider use a particular billing form.

DIFS also noted an insurer that receives a bill to be paid under the law based on 2019 provider charges may request a charge description master or “average amount” from a provider to calculate the reimbursement. However, the insurer must request this information promptly (no later than the timeframes set forth in the law) and must reimburse the provider promptly upon receipt of the required documentation.

Rejecting bills repeatedly without offering assistance to a provider.

DIFS also stated it has been notified of instances where insurers have repeatedly rejected bills solely because the insurer believes the provider did not correctly code the services. The bulletin reminds insurers they are expected to engage in a dialogue with providers to assist them in understanding the insurer’s review of the bills and to expedite bills resubmitted with corrected codes.

2. Fee schedule resources

The second bulletin advises of various resources available as a convenience to assist providers and insurers in applying the new fee schedules. This will include a bulletin board where non-hospital providers may post their charge description masters and average amounts charged as of January 1, 2019 to facilitate payment that is based on those amounts under the law. DIFS previously stated it planned to develop a website where hospitals could voluntarily post their charge description masters.

DIFS noted that submitting charge description masters and average amounts by providers is entirely voluntary. Documents will be posted exactly as they are received from the provider, and DIFS will not authenticate the amounts. For context, it should be noted that DIFS fee schedule regulations define “provider” as “a physician, hospital, clinic, or other person lawfully rendering a service to an injured person.”

3. Application of fee schedules

A third bulletin provides some interpretation of what DIFS believes does or does not fall under the new fee schedules. Per this bulletin – products, services and accommodations that are not provided by physicians, hospitals, clinics, or other like persons, but are otherwise compensable as “allowable expenses” under the law, are not subject to the new fee schedules.

DIFS examples of exclusions from the fee schedule provisions include:

Services related to guardianship or conservatorship
Vehicle or home modifications
Computer equipment and supplies
Generators
Non-emergency medical transportation
Non-prescription drugs
Over-the-counter medical supplies
Certain case management services (depends on if payable under Medicare)

Charges for allowable expenses excluded from the fee schedules are supposed to be “reasonable” (not expressly defined in statute). The bulletin also advises, to the extent an auto insurer has applied the fee schedule provisions to products or services not subject to them, the insurer must re-process any such claim immediately and instead apply the law’s “reasonable” standard.

Minnesota Supreme Court rules against requiring workers’ comp payment for medical marijuana

The Minnesota Supreme Court recently weighed in on two cases on the issue of medical marijuana in workers’ compensation by ruling employers are not required to reimburse injured workers for medical marijuana. In doing so, the Court reversed prior decisions made by the Workers’ Compensation Court of Appeals to require reimbursement.

The cases were Bierbach v. Digger’s Polaris (A20-1525) and Musta v. Mendota Heights Dental Center (A20-1551). Both involved injured workers who were diagnosed with chronic or intractable pain and certified or enrolled for participation in Minnesota’s medical cannabis program.

The Supreme Court found the following in both decisions:

“Because resolving a claim asserting that a conflict exists between federal law that prohibits cannabis possession and state law that requires an employer to pay for an injured employee’s reasonable and necessary medical treatment would require the Workers’ Compensation Court of Appeals to interpret and apply federal law, that court lacks subject matter jurisdiction to decide the preemption issue presented by that claim.”
“The prohibition in the Controlled Substances Act…on the possession of cannabis preempts an order made under Minnesota’s workers’ compensation law…that requires an employer to reimburse an injured employee for the cost of medical cannabis used to treat a work-related injury.”

There continues to be a patchwork of court decisions and legislative actions on this topic across the country. For more background, we encourage you to view our medical marijuana update webinar from earlier this year. Additionally, our upcoming Workers' Comp and Auto No-fault Legislative Review Continuing Education webinar will also discuss this year’s legislation. Click here for more information and to register for this CEU webinar.

Minnesota DLI posts model notice for attempted unlawful collection of payment from injured workers

Minnesota legislation signed earlier this year includes new penalties for health care providers who improperly collect or attempt to collect payment from injured workers. The law stipulates that a penalty may not be assessed unless there is documentation that the provider or their representative has been provided with written notice that the attempted collection is prohibited by law and that penalties may be assessed. To facilitate this, the new law requires the Department of Labor and Industry (DLI) to post a model notice on its website, which was recently made available.

This new model notice is presumed to provide sufficient notice under the law when provided to a provider’s billing office. DLI encourages parties to provide DLI’s medical policy staff with a copy of the notice so that they can track if the notice has been sent to a provider.