The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | September 4, 2014


Evidence-based treatment guidelines

The Industrial Commission proposed a process for the use of evidence-based treatment guidelines to treat injured workers. The guidelines reduce delays in providing workers with reasonably required medical treatment. The guidelines only apply to the management of chronic pain and the use of opioids for all stages of pain management. Regarding a request for pre-authorization, the expectation is that a payer should be able to communicate a decision within five business days.

Reasonable medical care may include deviations from the guidelines. To support such a request, a provider must produce documentation and justification that demonstrates a medical basis for departing from the guidelines. The guidelines state that a payer cannot deny a request for pre-authorization solely because the guidelines do not address the requested treatment or services.


Hospital outpatient departments

The Division of Workers’ Compensation adopted an amendment to the hospital outpatient departments and ambulatory surgical centers fee schedule section in the official medical fee schedule. The regulation transitions hospital outpatient department facility fee allowances currently paid under the physician fee schedule to be paid a resource-based relative value scale facility fee. The rule makes the alternative payment methodology inapplicable for services rendered on or after Sept. 1. The rule also adjusts the Medicare multiplier to conform to changes in Medicare’s payment rules regarding the additional percentage added for outliers. The amended regulation goes into effect on Sept. 1.


Expert medical advisors

The Division of Workers’ Compensation proposed amendments to a rule regarding expert medical advisors. The amended rule includes the introduction and modification of certain definitions related to EMA certification and revises the documentary requirements that must be met to support an application for certification. The rule provides a process for online filing of certification applications and establishes an EMA tutorial for applicants. The rule allows the division to select and assign temporary EMAs, as needed by the division in fulfillment of its duties and responsibilities. The rule also increases EMA reimbursement from $200 per hour to $300 per hour for EMA services contracted by the Department of Financial Services.


Self-insured employers

The Industrial Commission adopted a temporary rule and proposed a permanent rule regarding self-insured employers. The rule may change how self-insured employers’ premium tax is computed. Self-insured employers may decide annually whether to submit an NCCI experience modification factor and form with their semiannual premium tax reports. The commission is allowing self-insured employers to submit an e-mod factor issued by NCCI within 90 days after the July 31 deadline.

New York

Medical treatment guidelines

The Workers’ Compensation Board proposed to add a non-acute pain volume to the medical treatment guidelines. The board also proposed to update the existing guidelines to reflect current medical practice and to ensure consistency with the non-acute pain guidelines. Intrathecal drug delivery is placed on the list of procedures requiring prior authorization. The proposed guidelines include best practice recommendations for prescribing narcotics.The guidelines include recommendations regarding the long-term use of narcotics for the treatment of pain. Comments should be submitted to [email protected]. For more information, visit


Employer/insurer coverage responsibility

The Workers’ Compensation Division proposed changes to rules regarding employer/insurer coverage responsibility. The rules establish standards for acceptable financial viability of self-insured employer groups, including financial ratios, minimum net worth, and maintenance of insurance against misuse or misappropriation of moneys or securities. The rules raise the excess insurance self-insured retention level and require the director’s preapproval of deductible endorsements. The required common claims fund balance must be maintained at all times. The rules require that private self-insured employer groups submit information to the director about board membership.

The rules require annual actuarial studies for qualified self-insured employer groups using a loss reserve account in lieu of posting a security deposit with the director. The rules also describe the triggers for possible revocation of self-insurance certification, including certain rule violations and default on obligations. Members of private self-insured employer groups may be ordered by the director to pay assessments for continuing claim liabilities and members will be subject to civil penalties for failure to pay those assessments. The division accepted written comments until July 28.

Electronic medical billing

The Workers’ Compensation Division adopted rules regarding electronic medical billing. The rules adopt national-level electronic medical billing standards and define terms used to explain electronic medical billing standards. The rules provide an option for an insurer to become exempt from the requirement to accept electronic medical bills. The rules also allow the use of alternative billing formats if those formats include all of the data elements required under the standard. The rules describe how to track and submit related documentation and prescribe standards for electronic medical bill acknowledgements, remittance advice, and explanations of benefits. The rules explain the potential for application of civil penalties. The rules go into effect on Jan. 1, 2015. Those with questions should contact [email protected].

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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