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

Policy Matters Brief - January 19, 2023

January 19, 2023 · Public Policy & Regulatory Affairs Team

California P&T Committee to Meet

The California Division of Workers’ Compensation’s Pharmacy and Therapeutics Committee is set to meet virtually on January 18, 2022. The P&T Committee, established with adoption of the California WC Drug Formulary, advises the DWC on changes to the formulary and deliberates on coverage status and make-up of the MTUS drug list(s). At the January meeting, the P&T Committee will discuss items such as artificial tears, topical analgesics and topical lidocaine. More information on the meeting can be found here.

Federal Firefighter Presumption Created

The Federal Firefighters Fairness Act within the 2023 National Defense Authorization Act will cover firefighters, paramedics, emergency technicians, rescue workers and others who provide fire suppression services for the Federal government. The Act creates a rebuttable presumption that heart disease, lung disease and certain types of cancer are work-related.

Florida Three-Member Panel Recommends Changes

The Florida Three-Member Panel, charged with examining the state of workers’ compensation in Florida, approved their latest biennial report. A topic garnering a lot of attention in the report is the recommendation that the Legislature eliminate the requirement that all medical fee schedule changes – with a significant financial impact to the system – be eliminated. In the past, this requirement has caused delays in the ability of the Division of Workers’ Compensation to update various medical fee schedules. Additionally, the Panel recommended examination of the current practice parameters and treatment guidelines, as the current guidelines ensconced in statute date back to 2018 and in some cases are no longer relevant. The Three-Member Panel report can be found here.

Florida Proposed Rules on Physician Dispensing

On December 29, 2022, the Florida Division of Workers’ Compensation (DWC) published a Notice of Proposed Rules for Rule 69L-7.730 and Rule 69L-7.740. The proposed rule(s) addresses physician (and other professional practitioner) dispensed medications and potential processes for dispensing, billing and reimbursing these medications.

7.740 outlines medication as a treatment and requires carriers to establish a process by which dispensing practitioners (defined under 465.0276 F.S.) can request prior authorization before dispensing.
7.730 requires all dispensed medications to be medically necessary and requires dispensing entities to request mandated prior authorization.

The official notice appeared in the Florida Administrative Register and full details of the proposal can be found here. The Division has scheduled a virtual public hearing on the proposed rules for Friday, January 13, 2022.

New York Telemedicine Rules

The New York Workers’ Compensation Board has adopted, on an emergency basis, amendments to 12 NYCRR 325-1.8, 329-1.3, 329-4.2, 333.2, and 348.2 to allow telemedicine in some circumstances. The amendments supersede the previous emergency telemedicine adoption to keep telemedicine in effect during the regulatory process for the permanent telehealth proposal. A Notice of Emergency Adoption will be published in the January 25, 2023, edition of the State Register. This emergency rulemaking is effective and expires 90 days from filing on January 10, 2023.

New Mexico workers’ comp medical rules amended

The New Mexico Workers’ Compensation Administration (WCA) published notice of its adoption of amended medical rules, effective January 1, 2023. WCA also updated its medical fee schedule for dates of service on or after January 1, 2023.

Highlights from the amendments’ medical rules:

Clarified certain aspects of pre-authorization
Increased the initial billing timeline for outpatient services to match the inpatient services timeline (60 days)
Removed the words “or upon the payer’s request” from the cost invoice submission options in respect to reimbursement based on provider’s cost (a provider is required to submit a copy of the invoice showing that cost at the time of billing)
Added that telehealth and telephonic services are allowable and reimbursed according to the fee schedule
Clarified reimbursement of out-of-state providers
Added language and clarification on WCA-administered utilization review

For more information on recent fee schedule legislation or regulations in New Mexico and across the country, view our Legislative and Regulatory Tracker and select the type of fee schedule as the topic.

Indiana Workers’ Compensation Board updates guidance for new law

The Indiana Workers’ Compensation Board (WCB) updated two guidance documents to supplement House Bill 1153, legislation signed in 2022 that went into effect on January 1, 2023. The two documents (“Procedural Guidance on Hospital and Facility Reimbursement” and “Guidelines for Determining the Pecuniary Liability of an Employer to a Medical Service Facility”) include additional information and guidance from the WCB to assist stakeholders.

HB 1153 amended the law to include:

The addition of ambulatory outpatient surgical centers into the definition of "medical service facility," and thereby subject to the facility fee schedule limitations.
The addition of new statutorily required provider billing forms and bill review timeframes, including new response and payment timeframes that differ depending on if the provider bill was submitted on paper or electronically.

While these newly-updated documents provide guidance, they are neither laws nor regulations. To the extent the guidance documents conflict with the law, the law takes precedence. For a high-level review of the medical related changes in HB 1153, refer back to our update from last year.

Possible Minnesota workers’ compensation traumatic brain injury treatment guidelines

The Minnesota Department of Labor and Industry (DLI) issued a notice of possible rulemaking to adopt traumatic brain injury (TBI) treatment guidelines. DLI stated the rules may include requirements regarding diagnosis and initial evaluation for TBI, potential treatment plans based on severity of the injury, and cross-references to current treatment standards in existing regulations, regarding items such as prior notification. DLI may also propose changes to other treatment rules to clarify the scope and application of these TBI rules.

DLI provided this notice and requested comments in the December 27th edition of the Minnesota State

Register (see pp. 597-598), noting that comments may be submitted in writing until further notice is published in the State Register that DLI intends to adopt or withdraw the rules. When a draft of the rules becomes available, it will be posted on this webpage.

DLI’s existing set of treatment guidelines rules (called “parameters”) include areas such as long-term opioid treatment, low back pain, and post-traumatic stress disorder, among several others. Those existing rules can be viewed online here (see Parts 5221.6010 - 5221.8900).

HHS proposes health care attachments standards

The U.S. Department of Health and Human Services (HHS) issued a proposed rule to adopt a set of standards for the electronic exchange of clinical and administrative data to support prior authorizations and health care claim adjudication. Specifically, the rule would implement requirements in the Affordable Care Act by adopting standards for “health care attachments” transactions, which would support both health care claims and prior authorization transactions, and a standard for electronic signatures to be used in conjunction with health care attachments transactions. The rule also proposes to adopt a modification to the standard for the referral certification and authorization transaction.

HHS believes the proposed standards are an important step in reducing provider burden, noting that transmitting health care attachments (such as medical charts, x-rays, and provider notes that document physician referrals and office visits) is still primarily a manual process and, currently, there are no adopted HIPAA standards, implementation guides, or operating rules for health care attachments or electronic signatures. If adopted, this proposed rule would support electronic transmissions of this type of information rather than the use of manual processes such as mail and fax.

Similar to its recently proposed pharmacy billing standard updates, HHS is proposing that the compliance date would be 24 months after the effective date of the final rule. The public comment period closes March 21, 2023

It is important to note that the rule would apply to all “covered entities.” Workers’ compensation and auto no-fault payers are not “covered entities” under federal law; however, the industry (particularly healthcare providers) tends to treat HHS standards as national standards and utilize them. The latest International Association of Industrial Accident Boards and Commissions (IAIABC) “Workers' Compensation Electronic Medical Billing and Payment National Companion Guide” also references the X12 275 transaction (a version of which is proposed to be adopted by HHS here) as the recommended standard electronic format for submitting electronic documentation in workers' compensation.

We previously spoke with IAIABC leadership in our “Policy Guys” podcast, providing an overview of the importance of IAIABC to the workers’ comp. community, including the development and adoption of national standards. Click here to listen to that episode.

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