Jan 6, 2021 | Legislative Update
Here is a summary of legislative and regulatory developments and challenges for the fourth quarter of 2020 and their practical implications:
Fourth quarter legislative activity continued to be light given earlier adjournments in many states and legislators’ focus on their election campaigns. Fortunately, the NCCI has been busy with an analysis that teases valuable insights out of the flurry of daily headlines. We commend to your review the NCCI’s 2020 Regulatory and Legislative Trends Report.
COVID-19 Compensability Presumption
The coronavirus emergency took center stage in state capitols in 2020. In the WC area, legislators introduced bills that would extend the presumption of WC compensability to certain categories of workers (e.g., first responders, critical or essential workers) who contract COVID-19. The surprising insight of the NCCI’s research is how limited this trend is: enactments in only 10 jurisdictions. Certainly, some represent large WC markets (e.g., California, Illinois, New Jersey), but most are not (e.g., Alaska, Utah, Vermont).
The year 2021 marks the beginning of new two-year legislative terms in most states. This means that 2020 bills won’t carry over to the new year except in Virginia and New Jersey, which have odd-year election cycles. The many COVID-related bills that weren’t enacted in 2020 will need to restart their journey through the legislative maze, while public optimism grows that newly available vaccines will quell the pandemic in the foreseeable future. WC claim operations may still experience an influx of COVID claims, but claim payers may have more compensability defenses at their disposal than they at one time expected.
Telerehabilitation Authorization
We noted in earlier updates that telehealth services of all sorts have grown exponentially during the coronavirus emergency, enabled by CMS’s relaxation of earlier safeguards against Medicare and Medicaid fraud and abuse in response to the need for virtual health care. That expansion has continued with CMS most recently granting blanket waivers to all telemedicine providers whose state governments have declared a COVID-related “state of emergency.” All jurisdictions have done so.
For technical reasons, telerehabilitation will be largely excluded from permanent CMS telemedicine rulemaking until Congress passes corrective legislation that, although not controversial, hasn’t been a priority in 2020’s fraught political environment. This correction should occur if and when bi-partisan cooperation returns to Congress. Meanwhile, states continue to issue – and renew – temporary executive orders permitting telerehabilitation services for workers’ compensation claimants.
The US Department of Labor’s Office of Workers’ Compensation Programs (OWCP) has already issued permanent regulations removing telerehabilitation from mandatory pre-authorization for Longshore and Harbor Workers’ medical services, and it is likely that state WC agencies will continue this trend when they are no longer constrained by the regulations pegged to CMS payment rules.
MedRisk Will Accept & Process CPT Code 99072
CPT code 99072 was created by the CPT Editorial Panel in response to extra practice expenses associated with patient care during the current Public Health Emergency. In our continuing efforts to coordinate, manage, and provide solutions for our injured workers, clients, and our valued physical medicine provider partners during COVID-19, MedRisk will accept and process billing code 99072.
Sep 30, 2020 | Legislative Update
Here is a summary of legislative and regulatory developments and challenges for the third quarter of 2020 and their practical implications:
With the wide majority of state legislatures adjourned prior to the third quarter, and a few not meeting at all in 2020, legislative activity has been light. Further, that activity has been focused primarily on the COVID-19 pandemic.
COVID Compensability Presumption
California enacted SB 1159, which establishes a presumption of workers’ compensation (WC) coverage for critical workers contracting COVID-19 whose fellow employees experience positive test results. The new law defines “critical worker” as a public sector or private sector employee who is employed to combat the spread of COVID-19. WC medical benefits are primary, but WC temporary disability benefits are secondary to employees’ paid sick leave benefits and, for police officers, firefighters, and other specified government employees, leave-of-absence benefits. The legislature is considering other COVID-19-related bills and will not adjourn until November 30.
New Jersey enacted SB 2380, which establishes a rebuttable presumption of WC coverage for “essential employees,” broadly defined to include public safety workers and first responders, providers of health care and support services in health care facilities, workers performing functions in proximity to the public, and other workers named in any emergency order. The New Jersey legislature continues to be in session, but at present there are no other COVID-19-related bills in the legislative pipeline.
The NCCI has identified 87 separate bills or executive orders nationwide that expand the compensability of WC to employees contracting this coronavirus. Most of bills have failed or are still under consideration, and many of the executive orders will expire or have limited scope. Nevertheless, the COVID-19 pandemic will have a significant impact on WC payer claim operations.
Telerehabilitation Authorization
In the absence of federal legislation clarifying CMS rulemaking authority over telehealth services for physical medicine, some state WC agencies are issuing month-to-month emergency rules extending authorization of telerehabilitation for WC claimants. Most recently, the Texas Division of Workers’ Compensation has extended authorization of telerehabilitation until October 10, and the Mississippi Workers’ Compensation Commission, via emergency rule, has recently opened up telemedicine to include physical therapy and occupational therapy. Further, following the lead of Gov. John Bel Edwards, the Louisiana Office of Workers’ Compensation has issued an emergency rule extending authorization of payment for telemedicine for WC claimants until October 26.
Under authority granted under the federal CARES Act, CMS has temporarily expanded the types of practitioners that may bill for their services when furnished as Medicare telehealth services from the distant site to include physical therapists and occupational therapists, at least for certain physical medicine services. Because a number of state WC agencies follow Medicare payment rules, this waiver has the effect of opening up telerehabilitation for WC claimants in many states, but the temporary and piecemeal nature of the waiver means that uncertainty will continue until Congress passes definitive, broad and permanent legislation correcting this technical but important glitch.
CMS itself has acknowledged the need for a permanent fix. In August, CMS Administrator Seema Verna said that the number of patients utilizing telemedicine has exploded during the pandemic, from about 13,000 per week to more than 630,000. It is likely that the “new normal” after the pandemic subsides will embrace extensive use of telemedicine services, including telerehabilitation.
Jun 30, 2020 | Legislative Update
Here is a summary of legislative and regulatory developments and challenges for the second quarter of 2020 and their practical implications:
Effects of the COVID-19 pandemic dominated legislative and regulatory activity during the second quarter. Some of these responses to the emergency will be transitory (e.g., closing of agency offices and delay of regulatory actions and hearings), but others are likely to be more long-lasting.
Regulatory virtualization
In response to social distancing and stay-at-home orders, government agencies have embraced an array of technological solutions. These range from video conferencing of administrative hearings to the elimination of notarization of legal documents. Professionals and companies, spurred by extensive work-from-home strategies and avoidance of business travel, have incorporated these techniques more broadly into their day-to-day operations.
Commentators have observed that there will not be a complete “snap back” to business and social normalcy after the pandemic fades. This may hold true in the regulatory environment, as well. Although many agencies’ technological innovations are temporary measures as currently written, a “new normal” may prevail afterwards. Less bureaucratic red tape may appear as an advantage, with perhaps less stakeholder-government interaction, and thus less administrative agency accountability, as a disadvantage.
Broadening of telehealth authorization
As noted in the 1Q20 report, many states have temporarily relaxed barriers to telehealth services, through either WC/insurance regulatory agency, health department or governor’s order. These actions address payment, scope of practice and billing issues.
With the coronavirus pandemic continuing into the foreseeable future and with providers, patients and payers having generally positive experiences with telehealth services, it is likely that many of these temporary measures will be extended and then made permanent.
Employers and commercial payers will need to develop techniques to maximize the benefits of telehealth services while managing the quality of care as it relates to workers’ compensation and return to work. They also need to strengthen their cybersecurity defenses to thwart the attacks that are predicted to form around this innovative healthcare delivery model. Forming partnerships with managed care organizations that have expertise in this field and strong IT security measures will be a key component of this strategy.
Compensability presumption
Many states have adopted or are considering measures to protect “front-line” workers by creating a presumption that COVID-19 is a work-related disease for broad classes of employees who are exposed to contagious patients or are required to work in high-risk environments. The National Conference of State Legislators reported earlier this month that six states have taken action to deem COVID-19 as a presumptively work-related illness, either through legislative enactments or executive authorizations, and action pending in several other jurisdictions. Protected classes extend beyond first responders and healthcare workers, to others deemed essential, including grocery store employees. For the full report: https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx. In addition, the NCCI has published a survey addressing the current status of COVID-19 compensability presumption laws and regulations, which can be found here: https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf.
Compensability presumptions tend to be permanent after the emergency recedes, conclusive rather than merely evidentiary in operation, and expandable to other conditions and protected categories of workers. This politically popular response to the pandemic may prove to be one of the most important and enduring effects of the COVID-19 emergency.
Apr 2, 2020 | Legislative Update
Here is a summary of legislative and regulatory developments and challenges for the first quarter of 2020 and their practical implications:
COVID-19 Pandemic
The global coronavirus emergency has spurred a number of changes to the WC managed care regulatory environment:
Broadening of telehealth authorization: Health regulators have issued orders encouraging the use of telemedicine and telehealth services to maintain health care access while protecting both patients and health care providers from exposure to COVID-19. The Centers for Medicare and Medicaid Services (CMS), in a recently published directive to physicians and other clinicians entitled “CMS Flexibilities to Fight COVID-19,” has announced that Medicare will pay for telehealth physical therapy codes that were previously restricted. Many state workers’ compensation agencies that follow CMS payment rules may follow suit.
Suspension of regulatory activity: Most state WC regulatory agencies have limited their operations to active dispute resolution matters only, and many of these have moved to telephonic rather than in-person hearings. Rulemaking activities generally have paused across the country, and legislative sessions have adjourned. Temporarily, this trend is likely to grow if, as is likely, confirmed cases of COVID-19 increase when testing becomes more available and governors respond with broadly applicable lock-down and stay-at-home executive orders.
Relaxation of deadlines: In recognition of the difficulties that patients, providers and payers are experiencing during the coronavirus lockdown, insurance and WC regulators have suspended filing, bill submission and, in some cases, payment deadlines.
WC payers currently have pressing challenges adapting to the rapidly changing regulatory climate. Once the crisis subsides, workers’ compensation regulation may return to pre-coronavirus policies and rules or shift to a “new normal” that welcomes, for example, virtual rather than in-person hearings and greater use telemedicine and telehealth for the convenience as well the safety of patients.
Apr 3, 2019 | Legislative Update
Could a recently launched federal assessment bolster acceptance of acupuncture as a treatment for occupational low back pain?
In January, the Centers for Medicare and Medicaid Services (CMS) launched a National Coverage Analysis to determine whether Medicare should pay for acupuncture treatment for chronic low back pain. CMS cited its motivations as a push from the US Department of Human and Health Services to deliver evidence-based, non-drug treatment solutions for chronic pain in response to the opioid crisis. The assessment is expected to be completed in October 2019.
Conservative treatment options like physical therapy have gained considerable respect in workers’ compensation as an alternative to opioids. Now, studies like this one by the University of York suggest that acupuncture could also be a valuable addition in the treatment of chronic pain in certain circumstances. While the verdict is still out, some states are taking a closer look for workers’ comp.
Currently, California allows authorization for acupuncture for workers’ compensation. A two-year pilot program was launched in 2017 in Washington state whereby participating providers were paid for acupuncture when associated with an accepted condition on a workers’ compensation claim. In January, upon evaluation of the program’s results, the Washington Department of Labor & Statistics proposed a rule that would allow the agency and self-insured employers to pay for acupuncture to treat injured workers’ low back pain. Meanwhile, New York state continues to press for injured workers’ acupuncture coverage despite related bills being vetoed three times in five years.
Could coverage by Medicare help acupuncture gain acceptance in the workers’ comp arena? Only time will tell. Read more at workcompcentral.com.
