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

Policy Matters Brief - February 8, 2023

February 8, 2023 · Public Policy & Regulatory Affairs Team

Florida rulemaking on physician dispensing

On January 13, 2023, the Florida Division of Workers’ Compensation held a hearing regarding proposed changes to existing rules surrounding physician dispensing of medications. The proposed language would require physicians to seek and secure prior authorization before dispensing medications from their offices and mandate payers to create and maintain a process whereby physicians can easily seek prior authorization. Payers would also be required to respond to a prior authorization request no later than three business days from date of request receipt. At present, there is no indication on the next steps on the proposed language, which can be found here.

Illinois considering several workers’ comp bills

As the Illinois Legislature kicked off its 2023 legislative session, several workers’ compensation bills appear to offer curious changes to the workers’ compensation system. At present three bills in particular look to bring change to the delivery of medical and pharmacy care for claimants and payers in Illinois.

HB 1544 would limit the prescribing and reimbursement for compound medications,
HB 1546 would require the development of an evidence-based drug formulary and
HB 1548 would rescind existing medical services fee schedules and require development of new fee schedules based upon Medicare percentages.

Louisiana updating treatment guidelines

On January 9, 2023, the Louisiana Workforce Commission held a public hearing regarding proposed changes to their existing treatment guidelines. The proposed changes were published in the Louisiana State Register in December and can be found here (you will have to search for treatment guidelines within the document). The proposed changes look to update the medical treatment guidelines in accordance with the Commission’s ongoing maintenance schedule and should add consistency throughout the guidelines. However, of special interest in this proposed version is the potential for required prior authorization on certain topical medications other than those clearly listed in the guidelines.

South Carolina considering fee schedule changes

The South Carolina Workers’ Compensation Commission recently announced at their January public meeting their intention to review the existing Medical Services Provider Manual and to propose updates/changes to the existing Manual for 2023. The Commission subsequently published an additional notice of a public hearing schedule for February 13th where the Commission will take input on the proposed changes and accept written comments. The Commission hopes to adopt final changes to the Manual at their April 1, 2023, meeting. Information on the meeting and proposed changes can be found here.

Kentucky workers’ comp UR and medical bill audit regulation amendments adopted

Kentucky Department of Workers’ Claims “ordinary” (permanent) amendments to the utilization review (UR) and medical bill audit regulation were finalized and published with an effective date of January 3, 2023. This ordinary regulation replaces a previously in place “emergency” regulation

Amended text provisions in this ordinary regulation include clarification on UR reviewer qualifications, adjustments to annual reporting requirements, and changes to various UR and medical bill audit timelines (several from calendar to business days), among other changes. It is important to note that some of those changes mirror what was put into place previously in the temporary emergency regulation and just adopt them on a permanent basis.

For more information on regulations and bills we are tracking related to UR, view our Legislative and Regulatory Tracker (select “Prior Authorization, UR or Formularies” as the Topic in the dropdown menu).

Oregon proposed workers’ comp medical rules amendments

The Oregon Workers’ Compensation Division proposed amendments to its rules governing medical fees, medical services and managed care organizations. Some of the more notable proposed amendments include updating procedure coding and fees, additional clarification on telehealth billing, clarification on how insurers are to pay out-of-state hospital, and removal of the requirement for prescribing providers to complete the "Pharmaceutical Clinical Justification for Workers' Compensation" form.

Under existing regulations, the "Pharmaceutical Clinical Justification for Workers' Compensation" form (which the Division is now proposing to eliminate) is required to be completed by the prescribing provider and submitted to the insurer when prescribing more than a five-day supply of specifically listed drugs. The form presently lists seven “high-cost” drugs and “some equally effective and less expensive alternative drugs,” but the list of drugs has not been updated since 2014. The existing regulations state that insurers may not challenge the adequacy of the clinical justification; however, they may challenge whether or not the medication is “excessive, inappropriate, or ineffectual.” In November of last year, the Division’s Medical Advisory Committee discussed the form and recommended it be eliminated.

Ohio BWC medication formulary and first fill lists updated

The Ohio Bureau of Workers’ Compensation (BWC) adopted updates to both its outpatient medication formulary and first fill of outpatient medications rule appendices/drug lists, effective February 1, 2023. The updated formulary includes the addition of 24 medications, removal of 26 medications, and coverage changes for several other medications. The updated first fill list includes the addition of 29 medications and removal of six medications.

It is important to note that the BWC uses its formulary and first fill list for state fund claims that it and its PBM administer; however, self-insuring employers are also permitted (but not required) to use them. The BWC formulary is intended to provide prescribers with a concise list of medications that can be utilized for treatment of approved conditions related to the claim, along with information regarding any restrictions or limitations to use of an approved medication. The first fill rule and list are intended to specify the circumstances under which BWC will reimburse for the first fill of prescription drugs for medical conditions identified in an application for workers’ compensation benefits prior to the date BWC issues an initial claim determination order.

West Virginia black lung program legislation

Legislation filed in West Virginia (House Bill 2454) would, if passed and enacted as introduced in January, create a West Virginia Black Lung Program entitling certain claimants to monetary benefits for pain and suffering. Specifically, this would apply to claimants who have been exposed to the hazards of inhaling minute particles of dust in the course of and resulting from their employment in the state for a period of 10 years during the 15 years immediately preceding the date of their last exposure and the claimant has sustained a chronic respiratory disability.

If those conditions have been met, there would be a presumption that the claimant is suffering from occupational pneumoconiosis which arose out of and in the course of their employment. A total disability is not required to receive these benefits, and these benefits may be in addition to any total disability award or federal black lung benefits.

The bill also would levy a tax on every person exercising the privilege of severing, extracting, reducing to possession, and producing for sale, profit or commercial use, coal, natural gas or oil, or for the generation of electricity by wind or solar devices. The additional revenue generated by these taxes would be deposited into a new "State Black Lung Fund" to be used exclusively to offset the cost of the Black Lung Program.

A similar bill, Senate Bill 494, was also filed in the Senate later in the same month.

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