The State of the States

Regulatory Review

Key workers' comp regulatory updates from around the country.
By: | May 30, 2014


Medical fee schedule. The Division of Workers’ Compensation adjusted the official medical fee schedule to conform to changes in the Medicare payment system. The durable medical equipment, prosthetics, orthotics, and supplies update includes all changes adopted by the Centers for Medicare and Medicaid Services for the 2014 calendar year. The physician and nonphysician practitioner fee schedule was also updated to conform to Medicare changes. The medically unlikely edits were adopted. Also, the maximum fees for splints and casts billed by physicians and nonphysician practitioners are governed by the durable medical equipment, prosthetics, orthotics, and supplies fee schedule.


Opioids guideline. The Division of Workers’ Compensation proposed a guideline for the use of opioids to treat work-related injuries. The division intends to remove the existing parts of the medical treatment utilization schedule that refer to opioid use and revise the MTUS to include this proposed guideline. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids.

Hospital outpatient departments. The Division of Workers’ Compensation proposed amendments to regulations regarding hospital outpatient departments and ambulatory surgical centers. The proposed modifications include updating the definitions of emergency room visit and surgical procedures to conform to Medicare and health care common procedure coding system coding changes. The modifications also provide a base facility fee “formula” to give additional clarification regarding the payment methodology for “other services” that are determined solely on the non-facility practice expense relative value units. The rules clarify that the alternative payment methodology will be inapplicable for dates of service on or after the effective date of the proposed regulation.


Notice of election to be exempt. The Division of Workers’ Compensation proposed amendments to a rule regarding the process through which corporate officers can apply to be exempt from workers’ compensation coverage requirements. The proposed rule is amended to reflect the meaning of “corporate officer” as defined in the statutes. Under the definition, members owning at least 10 percent of a nonconstruction limited liability company qualify as corporate officers and can elect to be exempt from coverage requirements.


The division revised the “Notice of Election to Be Exempt” form to accommodate application by nonconstruction industry employers seeking to be exempt from coverage requirements. The proposed rule also provides updated contact information and deletes obsolete language.

New York

Inpatient hospital care. The Department of Health provided the Workers’ Compensation Board with reimbursement rates for inpatient hospital care with discharge dates for 2014. New reimbursement rates were provided for medically managed detoxification and medically supervised inpatient withdrawal. Inpatient hospital care reimbursement rates were determined using the Medicaid inpatient methodology. Inpatient hospital care exempt reimbursement rates were also determined using the Medicaid inpatient methodology.

Electronic data interchange. The Workers’ Compensation Board announced the implementation of a new regulation that mandates electronic filing for First Report of Injury/Subsequent Report of Injury filings for all claim administrators. Effective May 23, certain board forms will not be scanned into the case folder nor considered duly filed. The forms will be replaced by electronic data interchange equivalent forms. The equivalent forms need to be filed and accepted with the board to be considered duly filed. The board has also has created FROI/SROI transaction reports for mailing to the parties. The new regulation went into effect on April 23. Those with questions should contact [email protected]


Clinical justification for certain drugs. The Workers’ Compensation Division issued a bulletin explaining that physicians and other providers must complete a clinical justification form when prescribing more than a five-day supply of certain high-cost drugs, including Celebrex, Cymbalta, Fentora, Kadian, Lidoderm, Lyrica, and OxyContin. Physicians do not have to complete the form for drugs not on the list. The division noted that these seven drugs make up about 30 percent of total pharmaceutical costs in the workers’ compensation system.


The requirement to provide justification is an effort to encourage providers to consider other lower cost options to treat workers’ compensation patients when appropriate. Those with questions should send an email to [email protected]


Retrospective rating. The Department of Labor and Industries proposed amendments to a rule regarding the retrospective rating for workers’ compensation insurance. The proposal modifies a formula that allowed a small number of retro participating employers to receive refunds or larger refunds inconsistent with the intent of the retrospective rating program when their loss ratio exceeded the maximum loss limit they chose. The rule will also amend the net insurance charge. The department proposed removing the performance adjustment factor from the calculation of insurance changes for those retro participants whose insurance charges are based on standard premium paid. A public hearing was scheduled on May 6. The department intends to adopt the amendments on May 30.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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