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Policy Matters Brief - August 16, 2023
August 16, 2023 · Public Policy & Regulatory Affairs Team
Michigan Supreme Court rules on retro-applicability of certain auto no-fault fee schedule provisions
As expected, the Michigan Supreme Court finally published its ruling on an appealed case related to retroactive application of certain specific fee schedule provisions in the state’s auto law. This ruling invalidates retroactive application of certain portions of the state’s 2019 auto no-fault reform law fee schedule provisions to dates of accident prior to the effective date of the law (June 11, 2019), which was the same judgement reached by the Michigan Court of Appeals last year, with some different reasoning. Last September, the Michigan Supreme Court denied the defendants’ motion to “stay” (pause the effect of) the Court of Appeals decision while the appeal was pending and, as a result, those specific fee schedule provisions were not applicable to claims for accidents prior to June 11, 2019. The Michigan Supreme Court ruling solidifies that position, with the final say in that matter.
The specific provisions ruled not retroactively applicable for those older claims include:
- The capping of a provider’s reimbursement for services/items without a Medicare reimbursement amount to specific percentages of the fees charged as of January 1, 2019
- The limitation on the reimbursable hours of family-provided attendant care to 56 hours per week (which was borrowed from the workers’ compensation law)
This means that handling of those two specific provisions reverts back to how they were handled under the law prior to the 2019 changes. Before the change in the law, there was no statutory cap on the number of reimbursable hours of prescribed attendant care provided to a covered individual by family members, nor were there limits on reimbursement rates for medical providers beyond a requirement that the cost for the service be “reasonable and necessary.” The case did not involve or rule on other areas of the law, including reimbursement for items and services with Medicare reimbursement amounts.
The Michigan Department of Insurance and Financial Services (DIFS) previously issued a bulletin after the Appeals Court ruling that provided some guidance on the matter. DIFS may issue additional guidance and/or update its website information given the Michigan Supreme Court ruling.
California DWC proposes updates to treatment guidelines
The California Division of Workers’ Compensation (DWC) has proposed additional updates to its medical treatment guidelines, known as the Medical Treatment Utilization Schedule (MTUS). The proposed updates incorporate the latest published guidelines from the American College of Occupational and Environmental Medicine (ACOEM) for the following:
- Hand, Wrist, and Forearm Disorders (ACOEM June 29, 2023)
- COVID-19 (ACOEM June 28, 2023)
California workers’ compensation law provides that the MTUS treatment guidelines are presumptively correct concerning the extent and scope of medical treatment. However, that presumption is rebuttable and may be controverted by a preponderance of scientific medical evidence that proves a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of their industrial injury.
The DWC is required to establish a 30-day public comment period, hold a public hearing, and respond to all comments received during the public comment period prior to adopting the updates. To that end, a hearing is scheduled for September 15, 2023, with written comments due on the same date.
Oklahoma WCC seeks input on updating medical fee schedule
The Oklahoma Workers’ Compensation Commission and its fee schedule vendor are soliciting written comments on potential revisions to the medical fee schedule and ground rules as they begin the review and drafting process for the proposed 2024 medical fee schedule. Written comments must be submitted via email to okfeedback@fairhealth.org (further opportunities for public comment will be provided to stakeholders once the draft is complete). The Commission is required to review and submit a proposed updated medical fee schedule to the Oklahoma legislature every two years. The last adopted version of the fee schedule became effective July 1, 2022, and can be viewed here for reference.
For more information on recent legislation and regulations regarding fee schedules that we are tracking, view our Legislative and Regulatory Tracker and select the type of fee schedule under “Select a Topic” in the drop-down menu.
Ohio BWC drug formulary updated
The Ohio Bureau of Workers’ Compensation (BWC) adopted updates to its outpatient medication formulary rule appendix (drug list), effective August 1, 2023. The updated formulary includes the addition of nine medications and removal of three medications in various strengths, in addition to coverage changes for several other medications.
Although the BWC uses its formulary for state fund claims, self-insuring employers are also permitted (but not required) to use it. The BWC formulary lists medications that can be utilized to treat approved conditions related to the claim and includes any restrictions or limitations to use of an approved medication.
First annual Virginia work comp medical fee schedule symposium announced
The Virginia Workers’ Compensation Commission (WCC) will be hosting its first annual Medical Fee Schedule (MFS) Symposium on October 18, 2023, at the Greater Richmond Convention Center in conjunction with the WCC’s annual Educational Conference & Exhibition. This event features a wide range of topics and speakers representing various workers’ compensation stakeholder knowledge and experiences. All who use the MFS and the current rules, procedures, policies, and forms can benefit from this opportunity to engage with system participants.
Michigan universal health care legislation introduced
Recently introduced Michigan House Bill 4893 is among several attempts in recent years to implement universal and/or single-payer health care within a state. HB 4893, titled the “MIcare Act", seeks to establish a “universal and unified” health care system in the state and create a “MIcare Board” tasked with several responsibilities. One of those responsibilities would be to study the feasibility of replacing the state’s current workers’ compensation and auto no-fault health care coverage with MIcare coverage. The board would be required to report to certain legislative committees on the differences in covered benefits, projected costs, projected reductions in workers’ comp and auto insurance premiums, current assets available under those systems, and proposed additional revenue sources.
HB 4893 was introduced on July 18, 2023 and referred to the House Committee on Insurance and Financial Services. Michigan’s legislative session is projected to run until the end of this year.
Washington updates IME telemedicine rules
The Washington Department of Labor & Industries (L&I) recently updated its rules to address how to accommodate an injured worker who requires an in-person independent medical exam (IME) but cannot access a provider in a reasonably convenient location and to reach a mutual understanding of when telemedicine may be appropriate for an IME. This update aligns with changes to the 2020 Senate Bill 6440 which states that an IME “must be at a place reasonably convenient to the injured worker, or alternatively utilize telemedicine if the department determines telemedicine is appropriate for the examination.”
Once the new rules take effect on September 1, 2023, they will promote consistency when L&I or a self-insured employer schedules an in-person or telemedicine IME. Full text of the adopted rules can be found online here.
