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

Policy Matters Brief - October 25, 2023

October 25, 2023 · Public Policy & Regulatory Affairs Team

California workers’ comp PTSD presumption law amended; several other bills vetoed

A California bill amending the state’s existing workers’ compensation PTSD presumption law for firefighters and peace officers was recently signed by Governor Gavin Newsom. The bill, Senate Bill 623, repeals on January 1, 2029, a provision in existing law providing that, for certain state and local firefighting personnel and peace officers, the term "injury" includes PTSD that develops or manifests during a period in which the injured person is in the service of the department or unit, providing a disputable presumption that the injury arises out of and comes in the course of employment, and requiring compensation awarded to include full hospital, surgical, medical treatment, disability indemnity, and death benefits. It additionally requires the Commission on Health and Safety and Workers' Compensation to submit reports to the Legislature analyzing the effectiveness of the presumption and a review of claims filed by specified types of employees not included in the presumption, such as public safety dispatchers.

Governor Newsom also vetoed the following workers’ compensation bills passed by the legislature this year:

AB 699: would have expanded the presumptions for hernia, pneumonia, heart trouble, cancer, tuberculosis, bloodborne infectious disease, methicillin-resistant Staphylococcus aureus skin infection, and meningitis-related illnesses and injuries to certain lifeguards employed on a year-round, full-time basis. The bill would have also expanded presumptions for illness or injury related to PTSD or exposure to biochemical substances to certain lifeguards.
AB 1145: would have provided (only until January 1, 2030) in the case of certain state nurses, psychiatric technicians, and various medical and social services specialists, that the term "injury" also includes PTSD that develops or manifests during a period in which the injured person is in the service of the department or unit.
AB 1213: would have required that if a denial of treatment requested by a treating physician is subsequently overturned by independent medical review or by the Workers' Compensation Appeals Board, any temporary disability to which the employee is entitled to receive or becomes entitled to receive from the date of the denial until the treatment is authorized would not be included in the calculation of the aggregate disability payments.
SB 391: would have expanded existing skin cancer presumption language for certain lifeguards to also apply to certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation.

For information on other legislation we were tracking this year in California, view our Legislative and Regulatory Tracker (select “All Legislation” in the Disposition drop-down menu and then select California on the map).

Michigan legislation would significantly overhaul auto no-fault medical fee schedule

Pending legislation in Michigan would make significant changes to the state’s 2019 auto no-fault reform law fee schedule provisions. Senate Bill 530 seeks to address concerns raised by service providers and claimant advocates over inadequate reimbursement, impractical reimbursement benchmarking, and lowered access to care, while also accounting for prior state court rulings interpreting some fee schedule provisions as not applicable to older dates of accident. SB 530 would increase reimbursement rates for services/items valued by Medicare, add specific fee schedule rates for several services/items currently without them, and potentially prevent insurers from reimbursing less than the newly prescribed fee schedule rates.

Highlights of changes proposed in the Senate-passed version of SB 530 include:

Modified language stating that providers are not eligible for reimbursement “more than” the fee schedule rates to instead state that providers “must be reimbursed” at fee schedule rates
Increased reimbursement for services/items with Medicare values in 2024
Removal of provider’s January 1, 2019, "charge description master" and "average charge" reduced reimbursement provisions, which under existing law pertain to services/items without a Medicare value
Added specific reimbursement amounts for several services and items not valued by Medicare – including pharmacy, home health care, chiropractic services, and transportation, among some others (these rates depend on whether the service/item is provided in the metro Detroit area versus the rest of the state and include an annual consumer price index adjustment)
Clarification that amended fee schedule provisions only apply to dates of accident after June 10, 2019
A provision that that any other services/items not assigned a reimbursement rate/value in the law are to be reimbursed based on the existing law’s reasonableness standard

SB 530 also states that its enactment is contingent on the passage of another bill, Senate Bill 531, being ratified. SB 531 would amend an existing area of the 2019 reform law requiring auto insurers’ filings to pass on savings realized from the application of the fee schedules to auto claimants with dates of accident before July 2, 2021. The amendment makes citation updates to account for the amendments in SB 530.

Both bills were introduced on September 26; heard in the Senate Finance, Insurance and Consumer Protection Committee in October; and passed the Senate on October 19. They are now in the House for consideration.

Oregon WCD discussing changes to medical rules

The Oregon Workers’ Compensation Division (WCD) has invited stakeholders to participate in an upcoming rulemaking advisory committee meeting. The committee will be reviewing rules related to medical fees and payments, medical services, and managed care organizations (MCOs). WCD provided a preliminary list of topics, which includes customary annual topics/issues on updating fee schedules and procedure coding, and several “one-time” issues that range from medical records to DMEPOS rental codes.

Those interested in attending a rulemaking advisory committee meeting on November 30, 2023, should email Marie Loiseau (marie.a.loiseau@dcbs.oregon.gov). WCD requested that stakeholders provide agenda items by October 18 to give the agency time to research the issues and options beforehand. Topics submitted later or at the meeting may be discussed if time allows, but any related rule changes are likely to be deferred until the next opening of the rules. Additional agenda topics should be submitted using this form and include a summary of the issue or problem, the related rule (if any), and the submitter’s preferred outcome.

Florida Bill could increase medical payments

A newly filed bill in Florida could lead to increases in the maximum allowed medical payments under workers’ compensation. House Bill 161 would raise the maximum reimbursement for a treating physician to 200% of the Medicare allowable reimbursement (an increase from the current reimbursement level of 110%). The bill would also increase reimbursement for surgery to 200% of the Medicare allowable reimbursement (an increase from the current reimbursement of 140%). Additionally, the bill would increase the fee for expert witnesses in a workers’ compensation proceeding to $300 an hour up from the current rate of $200 an hour. If passed by the legislature and approved by the Governor, HB 161 will take effect in July 1, 2024. However, the bill will need to wait until the 2024 Florida legislature session for any further action.

Massachusetts Department of Industrial Relations to hold meeting on opioids

The Department of Industrial Relations, Health Care Services Board will hold a WebEx meeting on October 21, 2023 to discuss the current status of their Opioid Alternative Treatment Pathway Program. A presentation by Department of Industrial Accidents will be provided on the program as well as ongoing discussions on the most recent draft of their knee treatment guidelines. The meeting is scheduled for 9:30 am to 11:00 am and the public is welcome to attend. Those wishing to attend – including remotely – should contact David Michels at david.michels@mass.gov.

Tennessee clarified schedule for workers’ comp medical fee schedule updates

As a follow up to its adoption on September 25, 2023, of medical fee schedule changes, including amendments to reimbursement calculations and guidelines, the Tennessee Bureau of Workers’ Compensation (BWC) recently posted the following information regarding the schedule for implementation:

Medicare guidelines and rules effective on the date of service shall be followed through December 31, 2023, as the platform on which to apply the Tennessee-specific conversion percentages and other modifiers. Please refer to BWC rules that became effective September 25, 2023 for specific information and instructions (0800-02-17, 18, 19).
From January 1, 2024, through March 31, 2024, the Medicare rules applicable on December 31, 2023, will remain in effect, including the Medicare conversion factor, guidelines, Tennessee-specific conversion percentages and modifiers.
From April 1, 2024, through March 31, 2025, refer to the rate tables, which will become available after March 1, 2024, and may be accessed in a digital and downloadable format free to providers and payers from FAIR Health by a link to be published on the BWC website.

This recent notice can be viewed online here: https://www.tn.gov/workforce/injuries-at-work/bwc-newsroom/2023/10/10/mfs-changes-in-effect--rate-tables-coming-in-march.html. For more background information, please refer to prior PPRA internal memos on the related fee schedule changes.

SAWCA 2023 All-Committee Conference

The Southern Association of Workers’ Compensation Administrators (SAWCA) will hold its 2023 All-Committee Conference (ACC) November 13-17, 2023, at the Hyatt Regency Hill Country in San Antonio, Texas. The ACC includes several subject-matter committee meetings and panels. Optum will be sponsoring the convention lunch.

SAWCA is an organization comprised of 22 state workers’ compensation agencies and several industry organizations, including Optum, that come together to share ideas, perspectives and common concerns to improve workers’ compensation for all. We previously spoke with SAWCA’s Executive Director, Gary Davis, on an Optum “Policy Guys” podcast episode, where he provided an overview of the importance of SAWCA to the workers’ compensation community and how it connects regulators and industry professionals. Click here to listen to that episode.

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