BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

STATE OF MONTANA

 

In the matter of the amendment of ARM 24.29.1533 and 24.29.1538 related to the workers' compensation medical fee schedules

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On December 4, 2009, at 10:00 a.m., the Department of Labor and Industry (department) will hold a public hearing to be held in the first floor conference room 104, Walt Sullivan Building, 1327 Lockey Avenue, Helena, Montana to consider the proposed amendment of the above-stated rules.

 

            2.  The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact the department no later than 5:00 p.m., on November 30, 2009, to advise us of the nature of the accommodation that you need.  Please contact the Employment Relations Division, Department of Labor and Industry, Attn: Keith Messmer, P.O. Box 8011, Helena, MT  59624-8011; telephone (406) 444-6541; fax (406) 444-3465; TDD (406) 444-5549; or e-mail kmessmer@mt.gov.

 

            3.  The rules proposed to be amended provide as follows, stricken material interlined, new material underlined:

 

            24.29.1533  NONFACILITY FEE SCHEDULE FOR SERVICES PROVIDED ON OR AFTER JANUARY 1, 2008  (1)  The department adopts the fee schedule provided by this rule to determine the reimbursement amounts for medical services provided by an individual provider at a nonfacility or facility furnished on or after January 1, 2008.  An insurer is not obligated to pay more than the fee provided by the fee schedule for a service provided within the state of Montana.  The fee schedule is comprised of the following elements:

            (a)  the HCPCS codes, including CPT codes, which are incorporated by reference.  Unless a special code or description is otherwise provided by rule, pursuant to 39-71-704, MCA, the edition of the CPT publication in effect at the time the medical service is furnished must be used to determine the proper procedure code  and discussed in greater detail in (3);

            (b)  the RVU given in the 2008 edition of the RBRVS, which is incorporated by reference, unless a relative value is otherwise specified in these rules.  Unless a special code or description is otherwise provided by rule, pursuant to 39-71-704, MCA, the edition of the RBRVS in effect at the time the medical service is furnished must be used to determine the proper procedure code.  For example, the 2010 version of the RBRVS applies to services provided from January 1, 2010, through December 31, 2010;

            (i)  The Because this rule was previously adopted before the 2008 and 2009 versions of the RBRVS were issued, the 2009 version of the RBRVS does not apply to services in any year.  The 2008 version of the RBRVS applies to services provided from January 1, 2009, through December 31, 2009 and the 2007 edition of the RBRVS applies to services provided from January 1, 2008, through December 31, 2008;

            (c)  the publication "Montana Workers' Compensation Nonfacility Fee Schedule Instruction Set for Services Provided on or after January 1, 2010", November 2009 edition, incorporated by reference;

(c) (i)  the The publication "Montana Workers' Compensation Nonfacility Fee Schedule Instruction Set for 2009", applies to services provided from January 1, 2009, through December 31, 2009 which is incorporated by reference.

            (i)  The "Montana Workers' Compensation Nonfacility Fee Schedule Instruction Set for 2008", September 2007 edition, applies to services provided from January 1, 2008, through December 31, 2008;

            (d)  the conversion factors established by the department in ARM 24.29.1538;

            (e)  modifiers, as found in the instructions; and

            (f)  the Montana unique code, MT001, described in greater detail in (8) (7).

            (2)  remains the same.

            (3)  Unless a special code or description is otherwise provided by rule, pursuant to 39-71-704, MCA, the edition of the CPT publication in effect at the time the medical service is furnished must be used to determine the proper procedure code.

(4)  through (11) remain the same but are renumbered (3) through (10).

(12) (11)  Copies of the RBRVS are available from the publisher.  Ordering information may be obtained from the department at the address listed in (4) (3). 

 

AUTH:  39-71-203, MCA

IMP:  39-71-704, MCA

 

REASON:  There is reasonable necessity to amend ARM 24.29.1533 because Chapter 112, Laws of 2009 (HB 119), amended section 39-71-704, MCA, to provide for the use of standards as adopted by the Centers for Medicare and Medicaid Services (CMS) in effect at the time the services are provided.  This change removes the need to adopt CMS standards by administrative rule each year.  The change is proposed in consultation with stakeholders, reduces workload, and increases efficiency.  This change will allow medical providers to utilize the same coding for workers' compensation and medicare billing.

 

Because the references to the CMS standards no longer need to be adopted each year, the department proposes to no longer update its instruction set each year by removing year specific information from the instructions.  A copy of the proposed 2010 publication identified as the "Montana Workers' Compensation Nonfacility Fee Schedule Instruction Set for Services Provided on or after January 1, 2010", November 2009 edition, is available and can be accessed on-line via the internet at: http://mtwcfeeschedule.ingenix.com/overview.aspx.

 

            24.29.1538  CONVERSION FACTORS FOR SERVICES PROVIDED ON OR AFTER JANUARY 1, 2008 -- METHODOLOGY  (1)  This rule applies to services, supplies, and equipment provided on or after January 1, 2008.

            (2)  The conversion factors are established annually by the department pursuant to 39-71-704, MCA.  If the department determines that a conversion factor does not need to change from the previous year due to its analysis of the average in (5), the most current factor listed below applies.  The conversion factor for goods and services, other than anesthesia services:

            (a)  provided from January 1, 2008, through December 31, 2008, is $63.45; and

            (b)  provided on or after January 1, 2009, is $65.28.

            (3)  The conversion factors are established annually by the department pursuant to 39-71-704, MCA.  If the department determines that a conversion factor does not need to change from the previous year due to its analysis of the average in (5), the most current factor listed below applies.  The conversion factor for anesthesia services:

            (a)  provided from January 1, 2008, through December 31, 2008, is $57.20; and

            (b)  provided on or after from January 1, 2009, through December 31, 2009, is $61.98; and

            (c)  provided on or after January 1, 2010, is $60.97.

            (4)  Up to the The top five insurers or third-party administrators, ranked by premiums written in Montana providing group health insurance coverage through a group health plan as defined in 33-22-140, MCA, and who use the RBRVS to determine fees for covered services, must annually provide to the department their current standard conversion factors by July 1.

            (5)  The conversion factor amounts for nonfacility services are calculated using the average rates for medical services paid by up to the top five insurers or third-party administrators providing group health insurance via a group health plan in Montana, based upon the amount of premium for that category of insurance reported to the office of the Montana insurance commissioner.  The term "group health plan" has the same meaning as provided by 33-22-140, MCA.  To be included in the conversion factor determination, the insurer or third-party administrator must occupy at least one percent of the market share for group health insurance policies as reported annually to the insurance commissioner.

            (a)  The department annually surveys up to the top five insurers to collect information on the rates (the RBRVS conversion factors) paid during the current year for nonfacility health care services furnished in Montana.

            (b)  The department's conversion factors for the following year are set at no more than 110 percent of the surveyed average.

 

AUTH:  39-71-203, MCA

IMP:  39-71-704, MCA

 

REASON:  There is reasonable necessity to amend ARM 24.29.1538 as 39-71-704, MCA, requires the department to annually establish a schedule of fees for medical services that are necessary for the treatment of injured workers.  The department proposes to indicate in the rule that if the rate does not need to change after the department annually conducts its analysis to establish the rate, the most current rate will continue to apply.

 

There is also reasonable necessity to amend this rule to adopt a new conversion factor for anesthesia services.  The average conversion factor of the three group health insurers having at least one percent of the market share decreased for anesthesia services, so maintaining the current rate would violate the statutory language that does not allow the rate to be set at a rate greater than ten percent above the average of the conversion factors used by up to the top five insurers or third-party administrators providing group health insurance coverage who use the resource-based relative value scale to determine fees for covered services.  The conversion factor for goods and services, other than anesthesia services, is not being changed and is 9.07 percent above the average conversion factor of the three group health insurers as outlined above.  The rate for the anesthesia conversion factor being proposed for adoption is 9.07 percent above the computed average conversion factor to be at the same percentage rate above the health care average as the general conversion factor rate.  In 2009, the general and the anesthesia conversion factors had been set at ten percent above the average conversion factor of the group health insurance providers.  The department intends to continue to evaluate data to determine what is an appropriate rate to pay above Medicare.  This issue is being reviewed by the Labor Management Advisory Council and the Legislative Economic Affairs Interim Committee.  The conversion factor is currently over 180 percent of Medicare.

 

Also, Chapter 112, Laws of 2009, made revisions to the number and type of insurance carriers required to report to the department and required that an insurer have at least a one percent market share in policies in Montana.  The proposed amendments bring the rule into conformity with the statute. 

 

            4.  Concerned persons may present their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to:  Keith Messmer, Employment Relations Division, Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59624-8011; by facsimile to (406) 444-3465; or by e-mail to kmessmer@mt.gov, and must be received no later than 5:00 p.m., December 11, 2009.

 

            5.  An electronic copy of this Notice of Public Hearing is available through the department's web site at http://dli.mt.gov/events/calendar.asp, under the Calendar of Events, Administrative Rules Hearings Section.  The department strives to make the electronic copy of this Notice of Public Hearing conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems, and that a person's difficulties in sending an e-mail do not excuse late submission of comments.

 

            6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices, and specifies the particular subject matter or matters regarding which the person wishes to receive notices.  Such written request may be mailed or delivered to the Department of Labor and Industry, attention: Mark Cadwallader, 1327 Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to mcadwallader@mt.gov, or may be made by completing a request form at any rules hearing held by the agency.

 

            7.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The bill sponsor was notified on October 29, 2009, by telephone, e-mail, and regular mail.  The bill sponsor contacted the department on November 2, 2009.

 

            8.  The department's Hearings Bureau has been designated to preside over and conduct this hearing.

 

 

/s/ MARK CADWALLADER            /s/ KEITH KELLY

Mark Cadwallader                            Keith Kelly, Commissioner

Alternate Rule Reviewer                   DEPARTMENT OF LABOR AND INDUSTRY

 

 

Certified to the Secretary of State November 2, 2009