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Policy Matters Brief - February 16, 2022

February 16, 2022 · Public Policy & Regulatory Affairs Team

Mississippi reverses stance on medical marijuana
One year after the Mississippi State Supreme Court overturned a voter-approved referendum allowing the creation of a state-wide medical marijuana program, the Mississippi Legislature and Governor agreed on legislation to permit the use of medical marijuana. Senate Bill 2095 was signed by the Governor and takes effect as of February 2, 2022. The bill permits patients with one of many outlined medical conditions to purchase approximately 3.5 ounces of medical marijuana a month and imposes a tax upon the purchase of the cannabis. This policy action by the state of Mississippi now makes it the 37th state to address utilization of medical marijuana.

California single payer healthcare system bill dies
The legislation, introduced in February of 2021, to establish a single-payer healthcare system, potentially including injured workers, has failed. Assembly Bill 1400, died in the Assembly on February 1, 2022, as it failed to meet a constitutional deadline to crossover to the Senate.

AB 1400 would have created the “California Guaranteed Health Care for All” program, or “CalCare,” to provide comprehensive universal single-payer health care coverage for state residents. To implement and govern the new system, the bill called for the creation of the CalCare Board. Notably, for workers’ compensation, the CalCare Board would have been required to develop a coverage proposal to review if and how to fund the health care items and services currently covered under the workers' compensation system.

Colorado workers’ comp MTGs for back pain updated
The Colorado Division of Workers' Compensation (DWC) adopted updates to its low back pain and cervical spine injury medical treatment guidelines (two of several exhibits referenced in their treatment guidelines rule). Both updated guidelines became effective January 30, 2022.

The stated purpose of the DWC’s medical treatment guidelines is to assure the quick and efficient delivery of disability and medical benefits to injured workers. All health care providers are required to use the treatment guidelines. All payers are required to routinely and regularly review claims to ensure care is consistent with the guidelines.

Kentucky DWC clarifies adopted hospital fee schedule regulation
On February 2, 2022, the Kentucky Department of Workers’ Claims (DWC) published a “clarification” memorandum to respond to questions and concerns surrounding the adopted changes to the Workers’ Compensation Hospital Fee Schedule regulation, which became effective November 30, 2021. The clarification explains how stakeholders should apply provisions regarding surgical implants and hardware.

As originally proposed, the regulation stated that charges for surgical implants and surgical hardware were to be reimbursed at invoice cost plus 15%, and the hospital was to provide a copy of the invoice. Following stakeholder comments, the proposed regulation was then amended to remove those provisions. However, the final adopted regulation inadvertently still contained language that made partial reference to the removed provisions.

Until a new amended regulation can be promulgated to remove the inadvertent language, the DWC clarification memo provides guidance on how stakeholders should read and apply the provisions in the adopted regulation as if surgical implants and hardware are still to be paid at the applicable cost-to-charge ratio and are not carved out.

Michigan auto no-fault medical fee schedules adjusted for CPI
The Michigan Department of Insurance and Financial Services (DIFS) published an updated annual Consumer Price Index (CPI) medical component adjustment to be applied to the state’s auto no-fault medical fee schedules later this year. The adjustment – a 5.39% increase for dates of service July 2, 2022, through July 1, 2023 – applies to services and products reimbursed based on the 2019 auto no-fault reform law’s provisions for certain services without an applicable Medicare rate.

DIFS stated this cumulative adjustment reflects the 4.11% adjustment set forth in the March 1, 2021 DIFS bulletin, plus the applicable adjustment for this year. The latest bulletin and its “cumulative” adjustment supersede the March 1, 2021, bulletin and its initial adjustment.

The 2019 reform law based reimbursement for most services and products on specific markups above the applicable Medicare reimbursement rates. However, for services and products covered under the fee schedule law but without an applicable Medicare rate, the law states that reimbursement to providers is to be based on a percentage reduction of the amount payable for the treatment under the person’s charge description master in effect January 1, 2019, or a percentage reduction of the average amount the person charged for the treatment on January 1, 2019 – both adjusted annually based on change in the medical care component of the CPI.

For the current fee schedule year, several of the services and products are only reimbursed at 55% of the provider’s applicable January 1, 2019, charge adjusted by the CPI percentage change. This percentage reduction is set by law to lower even further for the first few years of implementation. This lower reimbursement has sparked calls for legislative change to ensure providers are fairly reimbursed and access to care for auto claimants is not hindered.

One such change was Senate Bill 28. This signed bill created a $25 million post-acute auto injury provider relief fund to compensate the providers paid below their cost under the fee schedule law. Other legislative attempts to address this issue, which continue this year, have not been successful.

New Jersey workers’ comp COVID-19 presumption extended
New Jersey’s governor reinstated a public health emergency to ensure that the state is able to respond to the continued threat of COVID-19 and the spread of the Omicron variant. Executive Order No. 280 declared a Public Health Emergency and restates the existing State of Emergency across all 21 counties in New Jersey.

Extending the public health emergency triggers a provision from the 2020 Senate Bill 2380 that provides for a workers’ compensation presumption related to COVID-19 exposure. The presumption covers health care workers, public safety workers, and other “essential” employees who have contact with the public. SB 2380’s presumption is retroactive to March 9, 2020, and stops when the governor’s declaration of a public health emergency comes to an end. The presumption may be rebutted by a preponderance of evidence showing that the worker was not exposed to the disease while working in the place of employment.

For more on COVID-19 presumptions in workers’ comp, we encourage review of our presumptions map.

Oklahoma workers’ comp proposed fee schedule changes
The Oklahoma Workers’ Compensation Commission (WCC) approved a proposed 2022 draft Medical Fee Schedule. The proposed draft was published on the WCC website for a 30-day public comment period and a public hearing was scheduled to hear comments on February 10.

Included in the proposed draft were updates to procedure coding, conversion factors and maximum allowable reimbursement rates, as well as a section on telemedicine. For pharmacy, the proposed draft included addition of Medi-Span as an alternate publication source for average wholesale price (AWP), when not available in RED BOOK®.

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