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The latest legislative and regulatory activity that impacts you and the services we provide

Policy Matters Brief - October 26, 2022

October 26, 2022 · Public Policy & Regulatory Affairs Team

Florida Rule Workshop on physician dispensing rescheduled

The Florida Division of Workers’ Compensation (Division) has rescheduled their rule-making workshops related to physician dispensing for November 1, 2022, at 9:30 A.M. and 2:00 P.M. ET. The hearings will be held at the Division offices in Tallahassee. These hearings have been rescheduled twice due to the impact of Hurricane Ian and for scheduling conflicts with the National Disability and Workers’ Compensation Conference. For more information on the hearings and to get the latest agenda updates, please click here.

Mississippi adopts updated fee schedule

The Mississippi Workers’ Compensation Commission recently published an updated Medical Fee Schedule effective November 15, 2022. The updated fee schedule implements the following changes:

Updates to 2022 CPT and HCPCS codes and adjusts associated reimbursement rates
Requires pharmacy treatment utilizing lidocaine, including lidocaine patches, to utilize over the counter lidocaine unless proven ineffective
Updates various Home Healthcare reimbursement rates
Outlines modifications for provision of Telemedicine

The published fee schedule can be found here.

New York proposes updated No-Fault DME fee schedule

The New York Division of Financial Services (DFS), which oversees insurance and provision of insurance services, recently proposed modifications to the newly adopted workers’ compensation DME fee schedule so that it is more inclusive for No-Fault lines of business. At present, there are certain DME items covered under no-fault insurance benefits that either lack a reimbursement rate or are not listed on the workers’ compensation DME fee schedule. To address this issue, DFS has previously issued an emergency rule to bridge the gap until a new DME fee schedule can be adopted for no-fault insurance lines.

The current proposal, published by DFS in the October 12, 2022, version of the State Register, is open for public comment for a period of 60 days from publication. Optum urges stakeholders interested in this issue to review the proposal and provide DFS with feedback as necessary. The proposed fee schedule can be found on pages 12-13 of the PDF located here.

California workers’ comp drug formulary updated to exempt lidocaine

The California Division of Workers’ Compensation (DWC) published a revised Medical Treatment Utilization Schedule (MTUS) Formulary Drug List. This latest drug list changes the status of lidocaine from a “non-exempt” medication to an “exempt” medication. Pursuant to formulary regulations, an exempt medication can be prescribed and dispensed without prior authorization obtained via prospective review.

The new drug list is effective for dates of service on or after November 1, 2022, regardless of date of injury. The latest DWC order updating the drug list, including a copy of the updated list, along with prior updates can be viewed here.

California governor acts on workers’ comp presumption bills

The following workers’ compensation coverage presumption bills passed by the California State Legislature were recently acted on by the governor:

Signed bills:

AB 1751: This bill extends the sunset (expiration) date for the existing COVID-19 workers' compensation presumptions to January 1, 2024. It also expands the provisions applicable to firefighters and police officers to include additional agencies.
SB 1127: This bill increases the maximum time specified firefighters can access wage replacement disability benefits for cancer work-related injuries and reduces the period of time an employer must deny liability for a workers' compensation claim for specified presumptive injuries.

Vetoed bills:

AB 334: This bill would have expanded an existing presumption for skin cancer in lifeguards to also apply to certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation.
SB 284: This bill would have expanded an existing presumption for post-traumatic stress disorder (PTSD) in specified peace officers and firefighters to include specified employees at the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs, along with public safety dispatchers, public safety telecommunicators, and emergency response communication employees. It would have also expanded the list of peace officers that can claim the presumption.

For more information on these bills and other legislation or regulations we are tracking related to presumptions, view our Legislative and Regulatory Tracker (select “Presumptions” as the Topic in the dropdown menu).

Michigan DIFS provides guidance on appeals court fee schedule ruling

The Michigan Department of Insurance and Financial Services (DIFS) issued a bulletin providing guidance to insurers and providers following a recent Michigan Court of Appeals ruling that invalidated retroactive application of certain portions of the state’s 2019 auto no-fault reform law fee schedule provisions. The final legal decision is still pending appeal with the Michigan Supreme Court who, also, on September 29, 2022, denied the defendants’ motion to stay (pause the effect of) the Court of Appeals decision until it was resolved. As a result, the specific fee schedule provisions may not be applied to claims for persons injured in accidents prior to June 11, 2019.

The specific provisions halted for those older claims include:

The capping of a provider’s reimbursement for services without a Medicare amount to specific percentages of their fees charged as of January 1, 2019.
The limitation on the reimbursable hours of family-provided attendant care.

The new DIFS bulletin provides guidance on:

Bill re-processing and timely payment
Utilization review orders
Applicability of pre-existing “reasonable amount” language to these claims
Billing and coding disputes

The DIFS bulletin directs providers who believe that they are due additional reimbursement for claims subject to the decision to contact the insurer to request reprocessing of those claims. Although the 2019 charge methodology may not be applied to claims subject to the court decision, the bulletin notes that those claims remain subject to the “reasonable amount” standard set forth in the law, which was not substantively changed by the 2019 reform. Under that standard, charges must be reasonable, and the services provided must be reasonably necessary. Insurers may only pay a provider a “reasonable amount,” which “must not exceed the amount the [provider] customarily charges for like treatment or training in cases that do not involve insurance.” The DIFS bulletin additionally claims that Michigan courts have expressly approved an insurer’s determination of reasonableness when the insurer reimbursed 100% of a provider’s charge where that charge did not exceed the highest charge for the same service charged by 80% of other providers rendering the same service.

The Michigan Supreme Court directed this case to be placed on the March 2023 session calendar for argument and submission. DIFS stated it will continue to monitor the court proceedings and will provide updated guidance as necessary.

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