PROPOSED RULEMAKING
DEPARTMENT OF
LABOR AND INDUSTRY
[34 PA. CODE CH. 127]
Medical Cost Containment
[36 Pa.B. 2913]
[Saturday, June 10, 2006]The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), proposes to amend Chapter 127 (relating to workers' compensation medical cost containment) to provide and clarify requirements and procedures for reimbursement and review of medical treatment for work-related injuries under the Workers' Compensation Act (act) (77 P. S. §§ 1--1041.4 and 2501--2506).
Statutory Authority
This rulemaking is proposed under the authority in sections 306(f.1), 401.1, 420(a) and 435 of the act (77 P. S. §§ 531(f.1), 710, 831(a) and 991).
Background
Chapter 127 was originally promulgated at 25 Pa.B. 4873 (November 11, 1995) in response to the act of July 2, 1993 (P. L. 190, No. 44) (Act 44). Act 44 amended the act to provide medical cost containment mechanisms, including medical fee caps, fee review procedures, designated lists of physicians and medical treatment review procedures. The regulations were further amended at 28 Pa.B. 329 (January 17, 1998) in response to the act of June 24, 1996 (P. L. 350, No. 57), which significantly altered Utilization Review (UR) and designated list of physicians provisions in Chapter 127.
Since 1995, the Department has had the opportunity to examine the operation and effectiveness of Chapter 127. Myriad issues and occurrences, including far-reaching changes to Medicare payment systems and the advent of new medical procedures, arose during the Department's administration of Chapter 127 and have diminished the effectiveness and applicability of the regulations to the current workers' compensation and medical environments. Additionally, members of the regulated communities have alerted the Department to potential inefficiencies in the existing regulations, which the Department proposes to remedy through this proposed rulemaking.
On September 16, 2004, the Department held a stakeholder meeting to discuss this proposed rulemaking and invited the following groups: Pennsylvania Chapter of the IARPS; Office of Vocational Rehabilitation, Pennsylvania Rehabilitation Counseling Association; American Insurance Association; Alliance of American Insurers; Pennsylvania Trial Lawyers Association; PBA Workers' Compensation Law Section, Martin, Banks, Pond, Lehocky & Wilson; PBA WC Liaison Committee; Spence, Custer, Saylor, Wolfe & Rose; Insurance Federation of Pennsylvania, Inc.; Pennsylvania Self-Insurance Association; Thomas Jefferson University Hospital; Pennsylvania Defense Institute Workers' Compensation Committee; Pennsylvania AFL-CIO; Commission on Rehabilitation Counselor Certification; Alico Services, Ltd.; American Review Systems, Inc.; C.A.B. Medical Consultants; CEC, Inc.; CorVel Corporation; First Managed Care Option; Hajduk & Associates; Health Care Dimensions, Inc.; Industrial Rehabilitation Association, C/O FJP Enterprises, Inc.; KVS Consulting Services; LRC Rehabilitation Consultants; McBride & McBride Associates; QRS Managed Care Services; Quality Assurance Reviews, Inc.; Rehabilitation Planning, Inc.; Solomon Associates, Inc.; T & G Reviews; Tx Review Inc.; West Penn IME, Inc.; AIG Claim Services, Inc.; American Interstate Insurance Company; CAN Insurance Company; CompServices, Inc.; Donegal Mutual Insurance Company; Eckert Seamans; Erie Insurance Company; Guard Insurance Group; Jonathan Greer; Liberty Mutual Insurance Company; Exelon Corporation; Penn National Insurance; PMA Group; Peerless Insurance; Risk Management, Inc.; State Workers' Insurance Fund; St. Paul Travelers Insurance Company; Zurich North America; Hospital Association of Pennsylvania; Temple University Hospital; David Frank, M.D.; PPTA; Northeastern Rehabilitation Association; Pennsylvania Association of Rehab Facilities; Paul Goble; Pennsylvania Chiropractic Association; The Hetrick Center; Dr. Carl Hiller; Dr. Walter Engle; Pennsylvania Medical Society; Catherine Wilson; Pennsylvania Orthopedic Society; Dr. Roy Lefkoe; Dr. Jon B. Tucker; Pennsylvania Pharmacists Association; Milton S. Hershey Medical Center; Insurance Department; Larry Chaban, Esqu.
Additionally, as a result of the invitation to the September 16, 2004, meeting, the Department received written comments from the following groups: Pennsylvania Chiropractic Association; State Workers' Insurance Fund; The Hospital and Healthsystem Association of Pennsylvania; Pennsylvania AFL/CIO; Pennsylvania Medical Society; the Pennsylvania Trial Lawyers Association; Pennsylvania Orthopedic Society; PMA Insurance Group; LRC Rehabilitation Associates, Inc.; American Insurance Association; Insurance Federation of Pennsylvania; Hajduk and Associates; Compservices, Inc.; and the Department's Office of Adjudication.
Actual attendees who made presentations at the meeting were: Kenneth Stoller, American Insurance Association; David Wilderman and Ronald Calhoon, Pennsylvania AFL/CIO; Sam Marshall, Insurance Federation of Pennsylvania; Jerry Lehocky, Pennsylvania Trial Lawyers Association; Dr. Maria Hatam, PMA Group; and Leona Franks, LRC Rehabilitation Consultants, Inc.
All comments and suggestions have been reviewed and considered.
Purpose
By this proposed rulemaking, the Department seeks to address and correct uncertainties, competing interpretations and administrative obstacles encountered during the administration of Chapter 127. Further, the Department intends to remedy inefficiencies in the Medical Cost Containment system and to update terminology and processes used and described in the regulations to better reflect current practices, procedures and definitions.
Summary of Proposed Rulemaking
Subchapter A. Preliminary Provisions
The Department proposes amending § 127.2 (relating to computation of time) to promote consistency in filing and service requirements and to coordinate filing and service practices under the chapters of the Bureau's regulations.
The Department proposes amending § 127.3 (relating to definitions) to ensure that terminology utilized in the regulations is consistent with the terminology utilized in the health care and insurance industries. Further, the Department proposes amending this section to provide additional and updated definitions as necessary to reflect amendments made throughout the regulations.
Subchapter B. Medical Fees and Fee Review
Throughout this chapter, references to the Secretary of Health's approval of Coordinated Care Organizations (CCOs) have been amended to reflect that CCOs are approved by the Department. Additionally, numerous provisions have been amended to clarify that rates for services under the fee schedule were capped upon implementation of the fee schedule and are updated under §§ 127.151--127.162 (relating to medical fee updates). Further, the Department has made amendments throughout this subchapter to specifically identify provisions that supersede 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure). Finally, changes in grammar, punctuation and terminology appear throughout this subchapter.
In addition, the Department proposes amending § 127.103 (relating to outpatient providers subject to the Medicare fee schedule--generally) to delete the reference to the ''transition fee schedule.'' This reference is no longer necessary in light of changes in the Medicare system and the establishment of the original workers' compensation fee schedule. The Department further proposes amendments to clarify the means of updating outpatient providers' reimbursement rates.
The Department proposes amending § 127.104 (relating to outpatient providers subject to the Medicare fee schedule--physicians) to clarify the means of updating physicians' reimbursement rates.
The Department proposes amending § 127.105 (relating to outpatient providers subject to the Medicare fee schedule--chiropractors) to delete references to specific Health Care Financing Administration Common Procedure Coding System (HCPCS) codes and instead require billing based upon the appropriate codes. This amendment ensures that services rendered by chiropractors will be billed according to the correct codes regardless of changes to the coding system. The Department further proposes amendments to clarify the means of updating chiropractors' reimbursement rates.
The Department proposes amending § 127.106 (relating to outpatient providers subject to the Medicare fee schedule--spinal manipulation performed by Doctors of Osteopathic Medicine) to delete references to specific HCPCS codes and instead require billing based upon the appropriate codes. This amendment ensures that services rendered by doctors of osteopathic medicine will be billed according to the correct codes regardless of changes to the coding system. The Department further proposes amendments to clarify the means of updating osteopathic doctors' reimbursement rates.
The Department proposes amending § 127.107 (relating to outpatient providers subject to the Medicare fee schedule--physical therapy centers and independent physical therapists) to clarify the means of updating physical therapy centers' and physical therapists' reimbursement rates.
The Department proposes amending § 127.108 (relating to durable medical equipment and home infusion therapy) to clarify the means of updating reimbursement rates applicable to durable medical equipment and home infusion therapy.
The Department proposes amending § 127.109 (relating to supplies and services not covered by fee schedule) to require that providers specifically identify supplies provided under this section.
The Department proposes amending §§ 127.110 and 127.111 (relating to inpatient acute care providers--generally; and inpatient acute care providers--DRG payments) to clarify that updates to diagnostic related groups (DRG) calculations are in § 127.111a (relating to inpatient acute care providers--DRG updates).
The Department proposes adding § 127.111a to provide that the DRG grouper components in effect on the date of discharge shall be used to calculate reimbursement. The Department further proposes to clarify the means of calculating and updating payments to inpatient acute care providers.
The Department proposes amending § 127.114 (relating to inpatient acute care providers--outliers) to clarify that the applicable Medicare cost threshold is $36,000.
The Department proposes amending § 127.117 (relating to outpatient acute care providers, specialty hospitals and other cost-reimbursed providers not subject to the Medicare fee schedule) to clarify the means for updating reimbursement rates under this section. In addition, the Department proposes amending the means of identifying services in the charge master by reference to service descriptors instead of service codes. Further, the Department proposes amending this section to provide the means for incorporating new codes and new services under this section. Finally, the Department proposes amending this section to provide that providers that, after the effective date of the proposed rulemaking, add new services for which Medicare reimburses on a fee-for-service basis will be reimbursed under this section on a fee-for-service basis.
The Department proposes amending §§ 127.120--127.124 to clarify the means of updating reimbursement rates for these services and providers.
The Department proposes amending § 127.125 (relating to ASCs) to provide that reimbursement to facilities operating as ambulatory surgical centers (ASC) will be based upon Medicare's ASC rates when the ASC is licensed by the Department of Health and to further clarify the means of updating reimbursement rates under this section.
The Department proposes amending § 127.128 (relating to trauma centers and burn facilities--exemption from fee caps) to provide that trauma centers and burn facilities continue to receive their usual and customary charges.
The Department proposes amending § 127.129 (relating to out-of-State medical treatment) to eliminate the requirement that out-of-State providers cap fees based upon the Pennsylvania fee schedule. This requirement has proven to be unenforceable and has provided false assurance to individuals seeking treatment from out-of-State providers who often seek to ''balance-bill'' injured employees.
The Department proposes amending § 127.130 (relating to special reports) to remove reference to the particular CPT code applicable to ''special reports,'' because the code may change over time. The Department further proposes removing the requirement that payment for these reports be capped at 80% of usual and customary charges, because special reports are not generally a component of medical treatment and, by definition, provide greater information than required under the act.
The Department proposes amending § 127.131 (relating to payments for prescription drugs and pharmaceuticals--generally) to provide that the Bureau will refer to the ''Drug Topics Redbook'' when resolving fee disputes involving prescription drugs and pharmaceuticals.
The Department proposes amending § 127.132 (relating to payments for prescription drugs and pharmaceuticals--direct payment) to clarify that insurers may limit reimbursement/payment to pharmacies appearing on a proper list of designated providers, as set forth in Subchapter D (relating to employer list of designated providers). The Department proposes this clarification to better reflect the current state of the law regarding prescription reimbursement and designated providers.
The Department proposes amending § 127.133 (relating to payments for prescription drugs and pharmaceuticals--effect of denial of coverage by insurers) to provide that insurers must reimburse employees for the actual costs of prescription drugs, subject to the act and regulations. The Department proposes this amendment to clarify that reimbursement to employees is not subject to medical fee caps. Instead, medical providers' charges are subject to fee limitations.
The Department proposes amending § 127.134 (relating to payments for prescription drugs and pharmaceuticals--ancillary services of health care providers) to clarify the means of updating reimbursement rates for prescription drugs and pharmaceuticals.
The Department proposes rescinding §§ 127.153--127.161 because the provisions have been incorporated into §§ 127.101--127.134.
The Department proposes rescinding § 127.201 (relating to medical bills--standard forms) to require that providers request payment for medical bills and provide all required information to insurers within 90 days of the employee's first date of treatment with that provider. The Department further proposes amending this section to provide that failure to request payment as set forth in this section shall result in a waiver of any right to proceed against the insurer or claimant for payment of the bills. Additionally, the Department proposes adding a provision to clarify that providers may not bill or accept payment for services that are beyond the scope of their practice or licensure.
The Department proposes amending § 127.203 (relating to medical bills--submission of medical reports) to provide grammatical corrections and to further clarify that that medical information documenting billed treatment must be provided to the appropriate parties.
The Department proposes amending § 127.204 (relating to fragmenting or unbundling of charges by providers) to provide that fragmenting and unbundling of charges is only permitted where it is consistent with the most recent Medicare Correct Coding Initiative in effect on the date of service of the treatment, service or accommodation.
The Department proposes amending § 127.206 (relating to payment of medical bills--request for additional documentation) to clarify that requests for additional documentation do not alter insurers' obligations to timely make payment as provided in § 127.208 (relating to time for payment of medical bills).
The Department proposes amending § 127.207 (relating to downcoding by insurers) to make grammatical corrections and to clarify that code changes must be consistent with the Correct Coding Initiative. The Department further proposes amending this section to require insurers to notify providers of the codes that result from the downcoding process. The Department proposes this amendment to clarify that proper downcoding practices require the insurer to arrive at a definitive conclusion regarding the code that it asserts is applicable. Insurers may not simply object to the code utilized by the provider without presenting an alternative code.
The Department proposes amending § 127.208 to provide grammatical corrections and to further require that providers submit medical documentation when submitting bills to insurers.
The Department proposes amending § 127.209 (relating to explanation of benefits paid) to amend references to ''Explanations of Benefits (EOB)'' to ''Explanation of Reimbursement (EOR),'' which more accurately describes that document. Further, the Department proposes amending this section to require that EORs be in a format prescribed by the Department. The Department further proposes amending this section to require that providers use an EOR to detail reasons for denying or downcoding a medical bill. Finally, the Department proposes amending this section to require that the EOR contain specific information regarding the insurer's identity and the Bureau's fee review process.
The Department proposes adding § 127.209a (relating to adjusting and administering the payment of medical bills) to require that any entity engaging in the business of adjusting and paying medical bills on the behalf of a provider, insurer, employee or self-insurer register with the Department under section 441(c) of the act (77 P. S. § 997(c)).
The Department proposes amending § 127.210 (relating to interest on untimely payments) to clarify that interest accrues on unpaid medical bills from the date upon which payment must originally be made under § 127.208.
The Department proposes amending § 127.211 (relating to balance billing prohibited) to further prohibit providers from billing patients for treatment regarding reported work injuries unless the provider has submitted a written denial of liability. The Department further proposes amending this section to provide penalties for improper denials of liability, or failure to issue an EOR where one is required.
The Department proposes amending § 127.251 (relating to medical fee disputes--review by the Bureau) to reflect amendments made to § 127.208.
The Department proposes amending § 127.252 (relating to application for fee review--filing and service) to eliminate the requirement that providers submit additional copies of fee review applications and to clarify that fee reviews may be filed within 30 days of the first notification of a disputed treatment. The Department further proposes amending this section to provide grammatical corrections and to clarify the requirement that a proper proof of service must be filed with an application for fee review and to provide for electronic filing.
The Department proposes amending § 127.253 (relating to application for fee review--documents required generally) to require that the application for fee review contain a copy of the first bill sent to the insurer and to further provide for language consistent with §§ 127.203--127.208. Additionally, the Department proposes deleting requirements regarding material that predated the Bureau's charge master.
The Department proposes amending § 127.255 (relating to premature applications for fee review) to provide the circumstances under which the Bureau will return applications for fee review.
The Department proposes amending § 127.256 (relating to administrative decision on an application for fee review) to provide that the Bureau may summarily deny applications for fee review when it is apparent that the application was not timely submitted. The Department further proposes amending this section to remove the requirement that the Bureau conduct an investigation and to provide that the product of a fee review decision is an order of the Department and may be amended or corrected to resolve typographical or mathematical errors.
The Department proposes amending § 127.257 (relating to contesting an administrative decision on a fee review) to remove requirements regarding additional copies, to clarify that filing and service must be made in a manner consistent with § 127.2 and to provide that requests for hearing must be signed.
The Department proposes amending § 127.258 (relating to Bureau as intervenor) to permit the Bureau to intervene in fee review hearings at any time.
The Department proposes amending § 127.259 (relating to fee review hearing) to clarify that a hearing officer may determine whether the request is timely and proper. The Department further proposes amending this section to clarify the procedural operations of the hearing process.
The Department proposes adding § 127.259a (relating to fee review hearing--burden of proof) to clarify the burdens of proof in fee review hearings.
The Department proposes amending § 127.260 (relating to fee review adjudications) to delete the requirement that the hearing officer issue decisions and orders within 90 days, and to clarify that the decisions and orders shall be mailed to counsel, if known.
The Department proposes amending § 127.302 (relating to resolution of referral disputes by Bureau) to provide that insurers asserting that the referral standards have been violated must do so through an EOB.
Subchapter D. Employer List of Designated Providers
The Department proposes amending § 127.752 (relating to contents of list of designated health care providers) to require that lists of designated providers prominently include the names, addresses, telephone numbers and areas of medical specialties of listed providers. The Department further proposes amending this section to prohibit employers from requiring employees to schedule appointments through a single point of contact. Further, the Department proposes that reference to a single point of contact or referral for multiple providers on the list be considered a single provider, as is consistent with this section's provisions regarding CCOs.
Subchapter E. Medical Treatment Review
The Department proposes rescinding §§ 127.153--127.161 and adding Subchapter E (relating to medical treatment review).
The Department proposes adding § 127.801 (relating to review of medical treatment generally) to provide that the Department will operate a UR process to permit review of reasonableness and necessity of treatment related to work injuries, that this review will be conducted by Utilization Review Organizations (UROs) authorized by the Secretary, that UR may be requested by or on behalf of employers, insurers or employees and that providers, employees and insurers are parties to UR.
The Department proposes adding § 127.802 (relating to treatment subject to review) to provide that UR only applies to treatment rendered on and after August 31, 1993.
The Department proposes adding § 127.803 (relating to assignment of cases to UROs) to provide that the Bureau will assign requests for UR to authorized UROs and that the Bureau will return requests for UR that are duplicative of existing UR requests or effective UR determinations.
The Department proposes adding § 127.804 (relating to prospective, concurrent and retrospective review) to provide that UR may be prospective, concurrent or retrospective and may be requested by any party eligible under § 127.801.
The Department proposes adding § 127.805 (relating to requests for UR--filing and service) to provide procedural requirements regarding the filing and service of requests for UR.
The Department proposes adding § 127.805a (relating to UR of medical treatment prior to acceptance of claim) to provide a means for review of medical treatment prior to formal acceptance of a claim for benefits under the act.
The Department proposes adding § 127.806 (relating to requests for UR--assignment by the Bureau) to provide that the Bureau will assign the UR to an authorized URO and will notify the parties to the UR of this assignment.
The Department proposes adding § 127.807 (relating to requests for UR--reassignment) to provide for reassignment of UR requests where the URO is unable to perform a UR assigned to it by the Bureau.
The Department proposes adding § 127.808 (relating to requests for UR--conflicts of interest) to prohibit UROs from performing UR when a conflict of interest exists and to identify situations that constitute a conflict of interest. The Department further proposes adding this section to provide that UROs may conduct recertification and redetermination reviews when they previously rendered a determination regarding the same treatment under review in the recertification or redetermination.
The Department proposes adding § 127.809 (relating to request for UR--withdrawal) to provide a procedure for withdrawal of a request for UR.
The Department proposes adding § 127.811 (relating to UR of entire course of treatment) to provide that insurers may request a review of all treatment rendered to an employee. The Department further proposes that this review may not affect the insurer's payment obligations regarding treatment rendered more that 30 days prior to the UR request. The Department further proposes that all treatment provided to an employee will be reviewed according to the providers' licenses and specialties, and that any inconsistencies between reviewers will be resolved through consultation of the involved reviewers.
The Department proposes adding § 127.821 (relating to precertification) to permit precertification of treatment proposed for a work-injury.
The Department proposes adding § 127.822 (relating to precertification--insurer obligations) to provide prerequisites for precertification, including requirements that the employee or provider first request preauthorization from the responsible insurer and that the responsible insurer respond to the employee's or provider's request. The Department proposes this provision to provide a streamlined mechanism for employees and providers to receive preapproval of treatment options. The Department further proposes to permit providers and employees to rely upon USPS Form 3817 to demonstrate proof of mailing of the request.
The Department proposes adding § 127.823 (relating to precertification--provider-filed requests) to require that providers who file requests for precertification on behalf of employees detail the proposed treatment plan, procedure or referral,\ and serve a copy of the request on any providers to whom treatment may be referred.
The Department proposes adding § 127.824 (relating to precertification--employee-filed requests) to require UROs that receive employee-filed requests for precertification to contact the provider whose potential treatment is the subject of review and to request from that provider the treatment plan, procedure or referral relevant to the treatment under review within 10 days of the request. The Department further proposes that a provider's failure to supply information shall result in a determination that treatment is unreasonable and unnecessary, and that the URO must inform the provider of this determination.
The Department proposes adding § 127.825 (relating to assignment of proper requests for precertification) to permit the Bureau to assign requests for precertification to UROs in accordance with the provisions of this subchapter. Further, the Department proposes that the assignment of a UR request to a UR is interlocutory and is subject to review upon appeal of the UR determination.
The Department proposes adding § 127.831 (relating to prospective, concurrent and retrospective UR--insurer requests) to provide that insurers may request review of treatment that the employee is currently undergoing or may undergo in the immediate future.
The Department proposes adding § 127.832 (relating to concurrent and retrospective UR--payment obligations) to provide that insurers may suspend payment of bills issued within 30 days prior to the date of the UR request, but only insofar as the bills relate to the treatment under review. Further, the Department proposes tolling the 30-day period within which insurers may request retrospective UR and suspend payment of bills, pending an acceptance or determination of liability.
The Department proposes adding § 127.833 (relating to continuing effect of UR determinations) to provide for the continuing viability of UR determinations when treatment subject to review continues beyond the request. The Department proposes that determinations that treatment is reasonable and necessary continue to be effective to the extent specified in the determination. The Department further proposes establishing a process of recertification of reasonable and necessary treatment and further proposes that unreasonable/unnecessary treatment remains unreasonable and unnecessary until a change in the employee's condition merits redetermination of treatment. Finally the Department proposes establishing a process for redetermining the reasonableness and necessity of treatment.
The Department proposes adding § 127.841 (relating to requests for UR--recertification) to provide a process for recertifying that treatment that has been determined to be reasonable and necessary continues to be reasonable and necessary for some time into the future. The Department proposes establishing timelines for recertification and providing that requests for recertification will be assigned to the URO that rendered the determination that treatment was reasonable and necessary.
The Department proposes adding § 127.842 (relating to requests for UR--redetermination) to provide a process for reviewing treatment that has been determined to be unreasonable or unnecessary upon evidence that the employee's condition has changed so that the treatment may now be reasonable and necessary.
The Department proposes adding § 127.851 (relating to requesting and providing medical records) to require that UROs request records within 5 days of the date of the Notice of Assignment of a UR request. The Department further proposes a requirement that providers under review forward all records to the requesting URO within 15 days of the postmark date of the request, or within 7 days of the postmark date of a request for recertification or redetermination.
The Department proposes adding § 127.852 (relating to scope of review of UROs) to reflect that UROs may only address issues relevant to the reasonableness and necessity of the treatment under review. Further, the Department proposes that UROs may determine the extent to which treatment will remain reasonable and necessary into the future.
The Department proposes adding § 127.853 (relating to extent of review of medical records) to require UROs to attempt to obtain all available records of all treatment rendered for the work injury.
The Department proposes adding § 127.854 (relating to obtaining medical records--provider under review) to require UROs to request records from the provider under review in writing, and requiring the provider under review to sign a verification that the records are a true and complete copy of the employee's medical chart regarding the work injury.
The Department proposes adding § 127.855 (relating to employee personal statement) to permit employees to submit a statement regarding the reasonableness and necessity of the treatment under review. The Department further proposes requiring the URO to inform the employee of the opportunity to submit a written statement and providing timelines and guidance for consideration of the statement.
The Department proposes adding § 127.856 (relating to insurer submission of studies) to permit insurers to submit peer-reviewed, independently funded studies and articles to the URO, which may be relevant to the reasonableness and necessity of the treatment under review.
The Department proposes adding § 127.857 (relating to obtaining medical records--other treating providers) to require that UROs request records from all treating providers in writing and eliminating the provision in the prior regulations that permitted records to be requested telephonically. The Department further proposes requiring providers to submit verifications attesting to the records.
The Department proposes adding § 127.858 (relating to obtaining medical records--independent medical exams) to prohibit UROs from requesting, and parties from supplying, independent medical examinations or material other than medical records and other material specifically referenced in this subchapter.
The Department proposes adding § 127.859 (relating to obtaining medical records--duration of treatment) to require UROs to attempt to obtain records regarding the entire course of treatment rendered to the employee for the work injury.
The Department proposes adding § 127.860 (relating to obtaining medical records--reimbursement of costs of provider) to require UROs to reimburse providers for copying costs incurred in responding to requests for records.
The Department proposes adding § 127.861 (relating to provider under review's failure to supply medical records) to require UROs to issue determinations that treatment is unreasonable and unnecessary where providers fail to respond to requests for records. Additionally, the Department proposes that providers may be prohibited from introducing evidence regarding treatment related to any UR request in which they failed provide medical records without reasonable cause or excuse. The Department further proposes to prohibit providers from billing for this treatment.
The Department proposes adding § 127.862 (relating to requests for UR--deadline for URO determination) to provide that requests for UR shall be deemed complete upon the earlier of receipt of the medical records or 18 days from the date of the notice of assignment. Additionally, the URO shall complete its review and render a determination within 20 days of a completed request for UR, or within 10 days of a completed request for recertification or redetermination.
The Department proposes adding § 127.863 (relating to assignment of UR request to reviewer) to provide that UROs will assign matters to reviewers having the same licenses and specialties as the providers under review.
The Department proposes adding § 127.864 (relating to duties of reviewers--generally) to require that reviewers apply the best available clinical evidence in rendering determinations regarding the reasonableness and necessity of treatment. Providers must also specifically reference generally accepted treatment protocols, independently funded peer-reviewed studies and reliable medical literature applicable in light of the diagnosis rendered by the provider under review. The Department further proposes that reviewers address only the reasonableness and necessity of the treatment under review, and that reviewers assume the existence of a causal relationship between the treatment and the work injury. Finally, the Department proposes adding a requirement that reviewers specifically note the time frame within which treatment may continue to be reasonable and necessary. This time frame may not exceed 180 days.
The Department proposes adding § 127.865 (relating to duties of reviewers--conflict of interest) to outline conflicts of interest applicable to reviewers' activities and prohibit reviews when a conflict exists. The Department further proposes permitting reviewers to address treatment upon redetermination or recertification, even though they may have previously addressed treatment relating to the same matter.
The Department proposes adding § 127.866 (relating to duties of reviewers--content of reports) to define requirements for the contents of reviewers' reports.
The Department proposes adding § 127.867 (relating to duties of reviewers--signature and verification) to require that reviewers sign and verify reports that they author.
The Department proposes adding § 127.868 (relating to duties of reviewers--forwarding report and medical records to URO) to require that reviewers submit reports and records to the URO upon completion.
The Department proposes adding § 127.869 (relating to duties of UROs--review of report) to require UROs to ensure that the reviewer has complied with the act and regulations and to prohibit UROs from attempting to persuade reviewers to alter medical opinions expressed in reports.
The Department proposes adding § 127.870 (relating to form and service of determinations) to require that UROs sign UR determinations, and forward the determinations and other documentation to parties to UR disputes.
The Department proposes adding § 127.871 (relating to determination against insurer--payment of medical bills) to require insurers to make payment for treatment found to be reasonable and necessary. Additionally, the Department proposes that this section reflect that interest on medical bills continues to accrue throughout the UR process, and that payment obligations are merely tolled, and not extended, by the UR process. Finally, the Department proposes amending this section to clarify that penalties may be appropriate where an insurer has failed to timely pay any medical bill or interest.
The Department proposes adding § 127.901 (relating to petition for review of UR determination) to provide that parties who disagree with a determination rendered by a URO may file a petition for review of a UR determination.
The Department proposes adding § 127.902 (relating to petition for review--time for filing) to require that petitions for review of UR determinations be filed within 30 days of the date of the determination.
The Department proposes adding § 127.903 (relating to petition for review--notice of assignment and service) to provide for assignment of petitions for review of UR determinations to workers' compensation judges and service of the assignment on all parties to the UR determination.
The Department proposes adding § 127.904 (relating to petition for review--no answer allowed) to provide that no answer may be filed in response to a petition for review.
The Department proposes adding § 127.905 (relating to petition for review--transmission of records) to require UROs to forward all medical records obtained for its review to the workers' compensation judge assigned to rule on a petition for review of UR determination. The section further provides for forwarding the URO report and requires that the URO verify the authenticity and completeness of the record. Finally, the section provides a means for the Bureau to reimburse the URO for copying costs associated with complying with this section.
The Department proposes adding § 127.906 (relating to petition for review by bureau--hearing and evidence) to provide that proceedings in response to petitions for review of UR determination are de novo. Workers' compensation judges are not bound by UR reports and will consider the reports as evidence. Further, the Department proposes adding a provision clarifying that the workers' compensation judge may request peer review as a means to garner additional evidence regarding the reasonableness and necessity of the treatment under review and that the workers' compensation judge may disregard evidence submitted by providers who failed to respond to the URO's request for records in the same matter.
The Department proposes adding § 127.1001 (relating to peer review--availability) to provide for peer review, during the litigation of a workers' compensation matter, of medical treatment related to the work injury.
The Department proposes adding § 127.1002 (relating to peer review--procedure upon motion of party) to provide the means and guidelines for parties and workers' compensation judges to request peer review.
The Department proposes adding § 127.1003 (relating to peer review--interlocutory ruling) to provide that the ruling on a motion for peer review is interlocutory.
The Department proposes adding § 127.1004 (relating to peer review--forwarding request to Bureau) to provide the process by which workers' compensation judges may request peer review.
The Department proposes adding § 127.1005 (relating to peer review--assignment by the Bureau) to provide the process by which the Bureau will assign requests for peer review to Peer Review Organizations (PRO).
The Department proposes adding § 127.1006 (relating to peer review--reassignment) to require PROs to return requests for peer review that they cannot perform.
The Department proposes adding § 127.1007 (relating to peer review--conflicts of interest) to define conflicts of interest and to require PROs to return requests for peer review where these conflicts occur.
The Department proposes adding § 127.1008 (relating to peer review--withdrawal) to provide a means for workers' compensation judges to withdraw requests for peer review.
The Department proposes adding § 127.1009 (relating to obtaining medical records) to provide mechanisms for PROs to retrieve medical records regarding a request for peer review.
The Department proposes adding § 127.1010 (relating to obtaining medical records--independent medical exams) to prohibit PROs from requesting, and the parties from supplying, documentation regarding litigation. Instead, this section as amended requires that only medical records of actual treating providers be provided to PROs.
The Department proposes adding § 127.1011 (relating to provider under review's failure to supply medical records) to require that PROs shall report a provider under review's noncompliance with a subpoena to the workers' compensation judge and to prohibit the PRO from assigning matters to a review prior to receiving medical records.
The Department proposes adding § 127.1012 (relating to assignment of peer review request to reviewer by PRO) to require PROs to forward medical records and the Notice of Assignment to a reviewer licensed in this Commonwealth having the same license and specialty as the provider under review.
The Department proposes adding § 127.1013 (relating to duties of reviewers--generally) to require that the reviewers adhere to § 127.864.
The Department proposes adding § 127.1014 (relating to duties of reviewers--conflict of interest) to define conflicts of interest and to require a reviewer to return requests for peer review to the PRO where these conflicts occur.
The Department proposes adding § 127.1015 (relating to duties of reviewers--finality of decisions) to require reviewers to make definite determinations as to the necessity and frequency of the treatment under review, to prohibit advisory opinions and to require that reviewers resolve issues in favor of the provider under review where the reviewer is unable to determine the necessity or frequency of the treatment under review.
The Department proposes adding § 127.1016 (relating to duties of reviewers--content of reports) to provide the minimum requirements for reviewers' reports.
The Department proposes adding § 127.1017 (relating to duties of reviewers--signature and verification) to require that reviewers sign and verify their reports.
The Department proposes adding § 127.1018 (relating to duties of reviewers--forwarding report and records to PRO) to require reviewers to forward their report and the reviewed medical records to the URO.
The Department proposes adding § 127.1019 (relating to duties of PRO--review of report) to require that PROs check reviewers' reports to ensure compliance with formal requirements, to require that PROs ensure that the reviewer has returned all medical records and to prohibit a PRO from contacting a reviewer and attempting to persuade the reviewer to change his opinion.
The Department proposes adding § 127.1020 (relating to peer review--deadline for PRO determination) to require a PRO to complete its review and render its determination within 15 days of its receipt of the medical records.
The Department proposes adding § 127.1021 (relating to PRO reports--filing with judge and service) to require that the PRO forward its report to the workers' compensation judge and provide listed parties with copies of the report by means of certified mail.
The Department proposes adding § 127.1022 (relating to PRO reports--evidence) to provide that the PRO report will be part of the record in the pending case, and that the workers' compensation judge must consider, but is not bound by, the report.
The Department proposes adding § 127.1023 (relating to PRO reports--payment) to require that PROs submit bills for services to the workers' compensation judge for approval.
The Department proposes adding § 127.1051 (relating to authorization of UROs/PROs) to provide that the Bureau may authorize UROs/PROs through contracts awarded under 62 Pa.C.S. Part I (relating to Commonwealth Procurement Code). The Department further proposes that the Bureau will not be required to award a contract to every offeror that submits a proposal that meets the minimum requirements established by the request for proposal.
The Department proposes adding § 127.1052 (relating to UROs/PROs authorized prior to (the effective date of these amendments)) to provide that UROs/PROs authorized prior to the effective date of this proposed rulemaking remain authorized until the expiration of the authorization currently in effect.
Affected Persons
Persons by this proposed rulemaking include workers' compensation judges, Workers' Compensation Appeals Board commissioners and officials and employees of the Department. Those affected also include participants in the Pennsylvania workers' compensation system, including injured employees, health care providers, employers, workers' compensation insurers and their respective legal counsel.
Fiscal Impact
This proposed rulemaking is expected to reduce costs to the Department and workers' compensation community by providing a more competitive environment for UR, and by easing the administrative burdens associated with the adjustment and payment of medical bills.
Reporting, Recordkeeping and Paperwork Requirements
This proposed rulemaking requires the creation of one new form and few modifications to existing forms. Therefore, this proposed rulemaking does not impose significant additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date is necessary. The Department will continue to monitor the impact and effectiveness of the regulations.
Contact Person
Interested persons may submit written comments to the proposed rulemaking to Eileen Wunsch, Chief, Health Care Services Review Division, Bureau of Workers' Compensation, Department of Labor and Industry, Chapter 127 Regulations--Comments, P. O. Box 15121, Harrisburg, PA 17105, ra-li-bwc-administra@state.pa.us. Written comments must be received within 30 days of the publication of this proposed rulemaking in the Pennsylvania Bulletin. Written comments received by the Department may be made available to the public.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 26, 2006, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
STEPHEN M. SCHMERIN,
SecretaryFiscal Note: 12-72. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VIII. BUREAU OF WORKERS' COMPENSATION
CHAPTER 127. WORKERS' COMPENSATION MEDICAL COST CONTAINMENT
Subchapter A. PRELIMINARY PROVISIONS § 127.2. [Computation] Filing and service--computation of time.
[Unless otherwise provided, references to ''days'' in this chapter mean calendar days. For purposes of determining timeliness of filing and receipt of documents transmitted by mail, 3 days shall be presumed added to the prescribed period. If the last day for filing a document is a Saturday, Sunday or legal holiday, the time for filing shall be extended to the next business day. Transmittal by mail means by first-class mail.]
(a) A filing required by this chapter is deemed complete upon delivery in person or, if by mail, upon deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
(b) Service required by this chapter is deemed complete upon delivery in person or, if by mail, upon deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
(c) Proof of service required by this chapter must contain the following:
(1) A statement of the date of service.
(2) The names of the individuals and entities served.
(3) The mailing address, the applicable zip code and the manner of service on the individuals and entities served.
(d) Unless otherwise specifically provided in this chapter, filing or service required to be made upon the Bureau shall be made to the Health Care Services Review Division of the Bureau at: 1171 South Cameron Street, Harrisburg, Pennsylvania 17104-2501, (717) 783-5421 or another address and telephone number as may be published in the Pennsylvania Bulletin or as set forth on the applicable Bureau form.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 31.5, 31.11, 31.12, 31.13, 31.14, 31.15, 31.26, 33.32 and 33.34-33.37.
§ 127.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ASC--Ambulatory Surgery Center--A center that operates exclusively for the purpose of furnishing outpatient surgical services to patients[. These facilities are] that is referred to by [HCFA] CMS as [ASCs] an ASC and is licensed by the Department of Health as [ASFs] an ASF. [For consistency with the application of Medicare regulations, these facilities are referred to in this chapter as ASCs.]
* * * * * Acute care--The inpatient and outpatient hospital services provided by a facility licensed by the Department of Health as a general or tertiary care hospital, other than a specialty hospital, such as a rehabilitation [and] or psychiatric provider.
Approved teaching program--A hospital teaching program [which] that is accredited in its field by the appropriate approving body to provide graduate medical education or paramedical education services, or both. Accreditation for medical education programs shall be as recognized by one of the following:
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