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Montana Administrative Register Notice 24-29-273 No. 13   07/11/2013    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

STATE OF MONTANA

 

In the matter of the adoption of NEW RULES I through IV, and the amendment of ARM 24.29.1401A, 24.29.1402, 24.29.1406, 24.29.1432, 24.29.1510, 24.29.1513, 24.29.1515, 24.29.1522, 24.29.1533, 24.29.1538, pertaining to medical services rules for workers' compensation matters

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NOTICE OF ADOPTION AND AMENDMENT

 

            TO: All Concerned Persons

 

            1. On April 25, 2013, the department published MAR Notice No. 24-29-273 regarding the public hearing on the proposed adoption and amendment of the above-stated rules at page 557 of the 2013 Montana Administrative Register, issue no. 8.

 

            2. On May 16, 2013, a public hearing was held in Helena concerning the proposed rules at which oral comments were received. Additional written comments were received prior to the closing date of June 13, 2013.

 

            3. The department has thoroughly considered the comments and testimony received on the proposed new rules. The following is a summary of the comments received, along with the department's response to those comments:

 

Comment 1: One comment from an orthopedic center noted that the proposed change to the $60.52 conversion factor in the professional fee schedule would result in a loss of $130,637, based on 2012 data. Another commenter expressed concern regarding patient access to non-hospital employed surgeons and ASCs. The commenter requested that the professional fee schedule conversion factor for imaging and surgery reimbursements not be reduced because the reduction could result in a loss of service to workers' compensation patients.

 

Response 1: The commenters' calculations and estimations do not take into consideration that the Relative Value Units (RVUs) have generally increased. RVUs are multiplied by the conversion factor to determine the reimbursement amount. Because of the RVU increase, the reimbursement amounts are not predicted to be lower. In addition, the professional fee schedule conversion factor calculation is statutorily set at no greater than 10% above the average conversion factors of the top five group health insurers in the state. Because this calculation is set in statute, the department does not have discretion to change the amount.

 

Comment 2: One commenter requested that purchase orders not be allowed for implantable reimbursement documentation in lieu of invoices, because they consider invoices to be superior documentation.

 

Response 2: The use of purchase orders as adequate implantable reimbursement documentation was added to address potential delays in implantable reimbursements due to waiting for invoices and because it is considered standard business practice. The new rules specify that the purchase order is only acceptable if it includes the number of items, the wholesale price, and the shipping costs. If the allowance for purchase orders causes issues under the new rules, the department will consider amendments in the future.

 

Comment 3: One commenter supported the rule change allowing purchase orders as adequate implantable reimbursement documentation because the commenter stated this is standard business practice and allows for prompt, consistent payment. The commenter agreed that the purchase order must include the number of items, the wholesale price, and the shipping costs. The commenter noted that New Rule I (11)(e)(ii) and (12)(f)(ii) do not reference the acceptability of a purchase order when specifying how reimbursement is calculated.

 

Response 3: The department concurs with this comment and has amended the rule as indicated below to add purchase orders to New Rule I(11)(e)(ii) and (12)(f)(ii).

 

Comment 4: Numerous commenters stated their support for the rules.

 

Response 4: The department acknowledges these comments.

 

Comment 5: One commenter requested that the provisions of New Rule I(11) and (12) regarding reimbursement for implants, be changed to use the term "implant record" instead of "operative report" because the implant record provides a complete description of the implant, and is therefore preferred over the operative report, which does not necessarily include the full description of the components of the implant. 

 

Response 5: While the department will consider this change in the future, the change will not be made at this time, so that other stakeholders can give input on this suggested language when it is noticed to the public.

 

Comment 6: One commenter asserted that New Rule II(2), which states an injured worker has a duty to select a treating physician, goes beyond the authority of 39-71-1101, because that statute says a worker "may" choose a person who is listed in 39-71-116(41) for initial treatment. The commenter also asserted the rule places additional restrictions on who an injured worker may select as a treating physician. 

 

Response 6: The department agrees that in light of the language in 39-71-1101, it is appropriate to clarify this issue, so the department has amended the rule as indicated below to remove the affirmative duty and state that an injured worker may select a treating physician. The department disagrees that the rule goes beyond the authority of statute. As the reasonable necessity statement indicates, that provision of the rule is modeled on ARM 24.29.1510, which has been an existing rule since 1993. The purpose behind ARM 24.29.1510, was to prevent unnecessary and repeated visits to emergency rooms, when treatment in a nonemergency setting is appropriate. Under 39-71-704, MCA, insurers are only required to reimburse for reasonable medical treatment. Repeated visits to an emergency room when nonemergency care is available and appropriate is not reasonable. Therefore, the provisions of the rule are intended to guide an injured worker toward proper care and prevent repeated visits to an emergency room that may not be reimbursable. Nothing in the rule prevents an injured worker from going to an emergency room when the situation is an emergency and nothing in the rule prevents an injured worker from choosing a health care provider who also happened to treat them in an emergency room, if that provider is available for nonemergency treatment as well.  In addition, the language that guides a worker to select a treating physician with consideration for the injury type, the location of treatment, and the provider's availability is only intended to be a common sense guide so that the worker selects a provider whose care is reasonable and therefore reimbursable pursuant to 39-71-704, MCA.

 

Comment 7: One commenter stated that New Rule II(3) is incorrect because it allows an insurer to designate or approve a treating physician when the insurer pays a claim under a right of reservation and has not yet accepted liability for the claim. 

 

Response 7: The department agrees and has amended the rule as indicated below.

 

Comment 8:  One commenter stated that New Rule II cannot require that the insurer "formally" designate or approve the treating physician and that informal acceptance and acquiescence should be considered designation of the treating physician. 

 

Response 8: The department disagrees. Under 39-71-1101(4), MCA, a treating physician does not receive compensation at the rate of 110% until the insurer designates or approves that individual as the treating physician. Until the designation or approval, the treating physician is reimbursed at 100% of charges pursuant to 39-71-1101(6), MCA. This provision states: "(6) A health care provider providing health care on a compensable claim prior to the designation or approval of the treating physician by the insurer must be reimbursed at 100% of the department's fee schedule." The department believes that the statutory language clearly requires that the insurer affirmatively accomplish the designation or approval requirement, to enable the higher reimbursement rate. The proposed rule provides a mechanism whereby all the involved parties will know the applicable reimbursement rate.  

 

Comment 9: One commenter expressed the concern that New Rule II established a new requirement that the treating physician coordinate "all" medical care. 

 

Response 9: Because the department believes the rule's requirements are the same without the word "all", the department has amended the rule as indicated below. The department disagrees that using the word "all" in the rule goes beyond the language of the statute because the rule means the treating physician has to meet all the requirements of the statute. For example, the statute indicates the treating physician is to "arrange" for treatment within the utilization and treatment guidelines. This may include referring the injured worker to a specialist who will treat the injured worker as appropriate. 

 

Comment 10: One commenter expressed the belief that the statute allowing insurer designation of the treating physician is unconstitutional and that New Rule II improperly interprets legislative intent. 

 

Response 10: The department does not have the authority to address the concerns raised regarding the constitutionality of a statute. In addition, the department is required to implement the plain language of the statute and the department believes the rule properly does so.  

 

            4. The department has amended 24.29.1401A, 24.29.1402, 24.29.1406, 24.29.1432, 24.29.1510, 24.29.1513, 24.29.1515, 24.29.1522, 24.29.1533, and 24.29.1538 as proposed.

 

            5. The department has adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

            NEW RULE I (24.29.1433) FACILITY SERVICE RULES AND RATES FOR SERVICES PROVIDED ON OR AFTER JULY 1, 2013 (1) through (10) remain as proposed.

            (11) through (11)(d) remain as proposed.

            (e) Where an implantable exceeds $10,000 in cost, hospitals may seek additional reimbursement beyond the normal MS-DRG payment. Hospitals may seek additional reimbursement by using Montana unique code MT003. Any implantable that costs less than $10,000 is bundled in the implantable charge included in the MS-DRG payment.

            (i) Any reimbursement for implantables pursuant to this subsection must be documented by a copy of the invoice for the implantable (or purchase order if it lists the number of items, the wholesale price, and the shipping costs) and the operative report. Insurers are subject to privacy laws concerning disclosure of health or proprietary information.

            (ii) Reimbursement is set at a total amount that is determined by adding the actual amount paid for the implantable on the invoice or purchase order for the implantable, plus 15 percent of the actual amount paid for the implantable, plus the handling and freight cost for the implantable. Handling and freight charges must be included in the implantable reimbursement and are not to be reimbursed separately.

            (iii) When a hospital seeks additional reimbursement pursuant to this subsection, the implantable charge is excluded from any calculation for an outlier payment.

            (iv) Because the decision regarding an implantable is a complex medical analysis, this rule defers to the judgment of the individual physician and facility to determine the appropriate implantable. A payer may not reduce the reimbursement when the medical decision is to use a higher cost implantable.

            (f) through (g) remain as proposed.

            (12) through (12)(e) remain as proposed.

            (f) Where an outpatient implantable exceeds $500 in cost, hospitals or ASCs may seek additional reimbursement beyond the normal APC payment. In such an instance, the provider may bill using Montana unique code MT003. Any implantable that costs less than $500 is bundled in the APC payment.

            (i) Any reimbursement for implantables pursuant to this subsection must be documented by a copy of the invoice for the implantable (or purchase order if it lists the number of items, the wholesale price, and the shipping cost) and the operative report. Insurers are subject to privacy laws concerning disclosure of health or proprietary information.

            (ii) Reimbursement is set at a total amount that is determined by adding the actual amount paid for the implantable on the invoice or purchase order for the implantable, plus 15 percent of the actual amount paid for the implantable, plus the handling and freight cost for the implantable. Handling and freight charges must be included in the implantable reimbursement and are not to be reimbursed separately.

            (g) remains as proposed.

 

AUTH: 39-71-203, MCA

IMP: 39-71-704, MCA

 

            NEW RULE II (24.29.1512) SELECTION OF PHYSICIAN FOR CLAIMS ARISING ON OR AFTER JULY 1, 2013 (1) For claims arising on or after July 1, 2013, "treating physician" has the meaning provided by 39-71-116, MCA.

            (2) The worker has a duty to may select a treating physician. Initial treatment in an emergency room or urgent care facility is not selection of a treating physician. The selection of a treating physician must should be made as soon as practicable. A worker may not avoid selection of a treating physician by repeatedly seeking care in an emergency room or urgent care facility. The worker should select a treating physician with due consideration for the type of injury or occupational disease suffered, as well as practical considerations such as the proximity and the availability of the physician to the worker.

(3) Any time after an insurer accepts liability for an injury or occupational disease or pays under a right of reservation, the insurer may recognize a treating physician selected by the injured worker. The treating physician is compensated at 100 percent of the fee schedule.

(4) After acceptance of liability, the insurer may formally approve the treating physician selected by the injured worker as a designated treating physician or may choose a different physician to be the designated treating physician. The designated treating physician is compensated at 110 percent of the fee schedule.

            (a) The designated treating physician is responsible for coordination of all medical care, pursuant to 39-71-1101(2), MCA. The designated treating physician must agree to accept these responsibilities.

            (b) The insurer must provide formal notification of the designated treating physician by e-mail, facsimile, or letter to:

(i) the injured worker;

(ii) the current treating physician; and

(iii) the designated treating physician. The effective date of the designation of treating physician is the date the insurer sends the notice of designation unless the physician declines within ten working days.

            (c) A health care provider who is referred by the designated treating physician is compensated at 90 percent of the fee schedule. These providers are not responsible for coordinating care or providing determinations as required by the designated treating physician.

(5)  Treatment from a physician's assistant or an advanced practice nurse, when the treatment is under the direction of the treating physician, does not constitute a change of physician and does not require prior authorization pursuant to ARM 24.29.1517.

(6) Subject to 39-71-1101, MCA, ARM 24.29.1517, and any other applicable rule or statute, nothing in this rule prohibits the claimant from receiving treatment from more than one physician if required by the claimant's injury or occupational disease.

 

AUTH: 39-71-203, MCA

IMP: 39-71-704, MCA

 

            6. The department has adopted New Rule III (24.29.1523) and New Rule IV (24.29.1534) as proposed.

 

 

 

/s/ JUDY BOVINGTON                    /s/ PAM BUCY

Judy Bovington                                Pam Bucy, Commissioner

Rule Reviewer                                 DEPARTMENT OF LABOR AND INDUSTRY

 

 

            Certified to the Secretary of State July 1, 2013

 

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