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Medicare & Workers’ Compensation Frequently Asked Questions

Q1. Clarification of WCMSA Review Thresholds – Should I establish a Workers’ Compensation Medicare Set-aside Arrangement (WCMSA) even if I am not yet a Medicare beneficiary and/or even if I do not meet the CMS thresholds for review of a WCMSA proposal?
A1. The thresholds for review of a WCMSA proposal are only CMS workload review thresholds, not substantive dollar or “safe harbor” thresholds for complying with the Medicare Secondary Payer law. Under the Medicare Secondary Payer provisions, Medicare is always secondary to workers’ compensation and other insurance such as no-fault and liability insurance. Accordingly, all beneficiaries and claimants must consider and protect Medicare’s interest when settling any workers’ compensation case; even if review thresholds are not met, Medicare’s interest must always be considered. 
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Q2. Low Dollar Threshold for Medicare Beneficiaries – Has Medicare considered a low dollar threshold for review of WCMSA proposals for Medicare beneficiaries?
A2. Effective with the issuance of this memorandum, CMS will no longer review new WCMSA proposals for Medicare beneficiaries where the total settlement amount is less than $10,000.00. In order to increase efficiencies in our process, and based on available statistics, CMS is instituting this workload review threshold. However, CMS wishes to stress that this is a CMS workload review threshold and not a substantive dollar or “safe harbor” threshold. Medicare beneficiaries must still consider Medicare’s interests in all WC cases and ensure that Medicare is secondary to WC in such cases.

Note that the computation of the total settlement amount includes, but is not limited to, wages, attorney fees, all future medical expenses, and repayment of any Medicare conditional payments, and that payout totals for all annuities to fund the above expenses should be used rather than cost or present values of any annuities. Also note that any previously settled portion of the WC clairn must be included in computing the total settlement amount.

Also note that both the beneficiary and non-beneficiary review thresholds are subject to adjustment. Claimants, employers, carriers, and their representatives should regularly monitor the CMS website for changes to these thresholds and for other changes in policies and procedures. 
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Q3. Use of WC Settlement Funds Prior to Medicare Entitlement – May workers’ compensation settlement funds attributable to future medicals be used prior to Medicare entitlement?
A3. For claimants who are not yet Medicare beneficiaries and for whom CMS has approved a WCMSA, the WCMSA may be used prior to becoming a beneficiary because the amount was priced based on the date of the expected settlement. Use of the WCMSA is limited to services that are related to the workers’ compensation claim or settlement and that would be covered by Medicare if the individual were a Medicare beneficiary. The same requirements that Medicare beneficiaries follow for reporting and administration are to be used in the above cases. The CMS will not pay for any expenses related to the workers’ compensation illness or injury until a self-attestation document or a full accounting of all monies expended from the WCMSA are sent to the lead contractor upon Medicare entitlement. At that time, the lead contractor will adjust the WCMSA record to reflect the expenses paid prior to entitlement.

Even if there is no CMS-approved WCMSA, any funds from a WC settlement attributable to future medicals that are remaining at the time a claimant becomes a Medicare beneficiary must be used for Medicare-covered services related to the workers’ compensation claim or settlement until such funds are exhausted. Only then will CMS pay for Medicare-covered services related to the workers’ compensation claim or settlement.

Note: The above answer replaces the first paragraph of the Note at the end of Answer Number Four in the July 23, 2001 ARA WC Memorandum and Question Number Three in the May 23, 2003 ARA WC Memorandum. 
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Q4. Avoiding the Continuation of Indemnity Payments While Waiting for CMS to Review a WCMSA – Is there a way to avoid the continuation of indemnity payments while awaiting a CMS determination on a proposed WCMSA?
A4. Yes. To avoid this situation, CMS recommends that the claimant (or the claimant’s representative) close out the indemnity portion of the settlement and leave the settlement of medical expenses open pending a determination by CMS on the proposed WCMSA. In determining the review thresholds, the total settlement amount, including indemnity and medicals, shall be used.

Note that the computation of the total settlement amount includes, but is not limited to, wages, attorney fees, all future medical expenses, and repayment of any Medicare conditional payments and that payout totals for all annuities to fund the above expenses should be used rather than cost or present values of any annuities. Also note that any previously settled portion of the WC claim must be included in computing the total settlement amount. 
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Q5. Settlement of WC Medical Expenses Prior to Submission to CMS – Can the parties proceed with the settlement of the medical expenses portion of a WC claim before CMS actually reviews the proposed WCMSA and determines an amount that adequately protects Medicare’s interests?
A5. The parties may proceed with the settlement, but any statement in the settlement of the amount needed to fund the WCMSA is not binding upon CMS unless/until the parties provide CMS with documentation that the WCMSA has actually been funded for the full amount as specified by CMS that adequately protects Medicare’s interests as a result of its review.

If CMS does not subsequently provide approval of the funded WCMSA amount as specified in the settlement and proof is not provided to CMS that the CMS-approved amount has been fully funded, CMS may deny payment for services related to the WC claim up to the full amount of the settlement. Only the approval of the WCMSA by CMS and the submission of proof that the WCMSA was funded with the approved amount, would limit the denial of related claims to the amount in the WCMSA. This shall be demonstrated by submitting a copy of the final, signed settlement documents indicating the WCMSA is the same amount as that recommended by CMS.

As a reminder, the claimant may be at risk if the WCMSA is funded for less than the amount that CMS determines to be adequate to protect Medicare’s interests. 
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Q6. Treatment of Taxable Interest Income Earned on a WCMSA – If I receive a Form 1099-INT for the interest income earned on my WCMSA account, may I charge the income tax on that amount against the WCMSA?
A6. Assuming that there is adequate documentation for the amount of incremental tax that the claimant must pay for the interest earned on this set-aside account, the claimant or his/her administrator may withdraw an amount equal to the additional tax as a “cost that is directly related to the account” to cover the additional tax liability. Such documentation should be submitted along with the annual accounting. 
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Q7. Sample Submission of a WCMSA – Does CMS provide an example of what a proper WCMSA looks like?
A7. Yes, at http://www.cms.hhs.gov/medicare/cob/pdf/attwc_sample.pdf CMS has posted a sample WCMSA proposal. Any comments or questions regarding this sample submission should be directed tomspcentral@cms.hhs.gov
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Q8. Group Health Plan (GHP) Insurance, Managed Care Plan, and Veterans’ Administration (VA) Coverage – In a WC settlement, is a WCMSA recommended where the claimant is covered under a GHP or a managed care plan, or has coverage through the VA?
A8. Yes, a WCMSA is still appropriate because such other health insurance or health service could in the future be canceled or reduced, or the injured individual may elect not to take advantage of such services. It is important to remember that workers’ compensation is always primary to Medicare and many other types of health insurance coverage for expenses related to the WC claim or settlement. 
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Q9. Loss of Medicare Entitlement after CMS Approval of a WCMSA – Am I entitled to a release of my WCMSA funds if I lose my Medicare entitlement?
A9. No. However the funds in the WCMSA may be expended for medical expenses specified in the WCMSA until Medicare entitlement is re-established or the WCMSA is exhausted. Use of the WCMSA is limited to services that are related to the workers’ compensation claim or settlement and that would be covered by Medicare if the individual were a Medicare beneficiary. The same requirements that Medicare beneficiaries follow for reporting and administration are to be used in the above cases. The CMS will not pay for any expenses related to the workers’ compensation claim or settlement until a self-attestation document or a full accounting of all monies expended from the WCMSA are sent to the lead contractor upon the re-establishment of Medicare entitlement. At that time, the lead contractor will adjust the WCMSA record to reflect the expenses paid prior to entitlement. 
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Q10. Beneficiaries that Request Termination of a WCMSA Account – May a claimant have any or all of a WCMSA released for personal purposes under any circumstances?
A10. The administrator of the CMS-approved WCMSA should not release set-aside funds for any purpose other than the purpose for which the WCMSA was established without approval from CMS. However, if the treating physician concludes that the beneficiary’s medical condition has substantially improved, then the beneficiary (or the beneficiary’s representative) may submit a new WCMSA proposal covering future expected medical expenses. Such proposals must justify at least a 25% reduction in the outstanding WCMSA funds. In addition, such proposal may not be submitted until at least five years after a previous CMS approval letter and should be accompanied by all supporting documentation not previously submitted with the original WCMSA proposal. The CMS decision on the new proposal is final and not subject to administrative appeal.

The above proposals shall be submitted to CMS c/o COBC. If CMS determines that a 25% or greater reduction is justified, CMS will issue a new approval letter. After CMS issues a new approval letter, any funds in the current WCMSA in excess of the newly calculated amount may be released to the claimant.

Note: The above answer replaces Question Number Eleven in the April 21, 2003 ARA WC Memorandum. 
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Q11. Compromising of Future Medical Expenses – Does CMS compromise or reduce future medical expenses related to a WC injury?
A11. No. Some submitters have argued that 42 C.F.R. §411.47 justifies reduction to the amount of a WCMSA. The compromise language in this regulation only addresses conditional (past) Medicare payments. The CMS does not allow the compromise of future medical expenses related to a WC injury. 
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Q12. Additional Information Submission after WCMSA Case Is Closed – If I disagree with the amount that CMS has determined for my WCMSA, do I have any recourse?
A12. There are no appeal rights stemming from a CMS determination of the appropriate amount of a WCMSA; however, claimants and submitters have several other options available to them. First, a claimant or submitter may always contact the Regional Office that issued the CMS determination for a clarification. Also, if the claimant or submitter believes that a CMS determination contains obvious mistakes, such as mathematical errors or failure to recognize that medical records already submitted show that a surgery that CMS priced has already occurred, then the claimant or submitter should contact the CMS Regional Office that issued the CMS determination for a correction of the errors.

Where the claimant or submitter believes that CMS has misinterpreted the evidence or disagrees with the CMS determination for some other reason, there are two choices available. If the claimant or submitter believes that there is additional evidence not previously considered by CMS that would warrant a change in the CMS determination, the claimant or submitter may resubmit the case with the additional evidence and request a reevaluation. The reevaluation request should be clearly marked as such, submitted to the Coordination of Benefits Contractor (COBC), P.O. Box 660, New York, New York 10274-660, and must be accompanied by additional evidence not available at the time of the original submission. It will then be considered a new submission and shall be processed in order of receipt.

Although a claimant has no formal appeal rights with respect to the WCMSA process, beneficiaries do have appeal rights with respect to specific denied claims. If CMS denies a submitted claim for a service on the basis that CMS determined the WCMSA amount has not been exhausted, the beneficiary may appeal that specific claim denial through the administrative appeal process. 
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Q13. Effect of WCMSA on Medicaid Eligibility – Does a WCMSA have an effect on Medicaid resources for purposes of eligibility to Medicaid?
A13. Medicare set-aside arrangements are not subject to any special treatment under Medicaid resource rules. These funds should be evaluated to determine if they meet the legal definition of a resource for Supplemental Security Income (SSI), and therefore Medicaid, purposes, i.e., “cash or other assets that an individual owns and could convert to cash to be used for his or her support and maintenance.” The funds must be in interest-bearing accounts. These funds may rneet the SSI/Medicaid resource definition. There may be cases in which funds in a Medicare set-aside arrangement are placed into trusts, possibly trusts that would satisfy the definition of “special needs trusts” under Section 1917 of the Social Security Act. In those cases, the funds might not be a countable resource, but that result would be solely on the basis of Medicaid, not Medicare, rules. 
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Q14. State Specific Statutes – Does CMS recognize or honor any State-specific statutes that conflict with CMS policy?
Al4. The CMS will recognize or honor any non-compensable medical services and CMS will separately evaluate any special situations regarding workers’ compensation cases. This is subject to a copy of the applicable statute being forwarded to the COBC, P.O. Box 660, New York New York 10274-660, as part of the case file. 
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Q15. Transfer Mechanism for Items and Services Not Covered by Medicare – Is a mechanism for items and services not covered by Medicare that may later become covered necessary?
A15. Should the settlement agreement provide for items and services that are not covered by Medicare but later become covered, those funds should then be considered part of the set-aside and treated accordingly, i. e., used to pay for any services as they were designated in the non-Medicare portion of the set-aside included in the WC settlement. These funds do not have to be transferred to a separate WCMSA bank account or be included in the annual WCMSA accounting.

Delaware State Bar Association Workers’ Compensation Appointments

Elzufon Austin Tarlov & Mondell is pleased to announce the following elected and appointed positions with respect to the Delaware State Bar Association Workers’ Compensation Section:

2013

  • Gary Baker reappointed Co-Chair CLE Committee.
  • Andrew Carmine appointed Co-Chair of the Legislative Committee.
  • Gary Baker elected President of DSBA Workers’ Compensation Section.
  • Scott Mondell reappointed Co-Chair IAB Rules Committee.

2012

  • Gary Baker elected Vice President of DSBA Workers’ Compensation Section.
  • Scott Mondell reappointed Co-Chair IAB Rules Committee.
  • Gary Baker reappointed Co-Chair CLE Committee.

2011

  • Gary Baker elected secretary of DSBA Workers’ Compensation Section.
  • Scott Mondell reappointed Co-Chair IAB Rules Committee.
  • Gary Baker reappointed Co-Chair CLE Committee.

2007 – 2008

  • Scott Mondell has been reappointed co-chair of the Industrial Accident Board Rules Committee.
  • Gary Baker has been reappointed co-chair of the Continuing Legal Education Committee.
  • Scott Mondell has been reappointed a member of the Delaware State Bar Association Nominating Committee.

2006 – 2007

  • Scott Mondell has been appointed co-chair of the Industrial Accident Board Rules Committee.
  • Gary Baker has been appointed co-chair of the Continuing Legal Education Committee.
  • Scott Mondell has been appointed a member of the Delaware State Bar Association Nominating Committee.

2005 – 2006

  • Scott Mondell has been elected chair of the Workers’ Compensation Section of the Delaware State Bar Association.
  • Gary Baker has been appointed chair of the Continuing Legal Education Committee.
  • Chris McGarry has been appointed Technology Committee Liaison to the Delaware State Bar Association.

Delaware Workers’ Compensation Mileage Rates

Pursuant to 19 Del. C. § 2322, employers/carriers are responsible for reimbursement of mileage to and from compensable treatment.

The reimbursement rate is the State of Delaware specified mileage allowance rate in effect at the time of the travel.

Per 29 Del. C. § 7102, the reimbursement rate is and has been as follows:

  • Mileage incurred on or after July 1, 2006 for reasonable surgical, medical, dental, optometric, chiropractic, hospital services; medicine and supplies is reimbursable at 40 cents per mile per Section 33 of the Delaware State Budget Epilogue of the 2006/’2007 Fiscal Year Budget and 19 Del. C. Section 2322 (g).
  • Mileage incurred 7/1/00 thru 6/30/06 continues to be reimbursable at 31 cents per mile.
  • Mileage incurred between 7/1/99 thru 6/30/00 continues to be reimbursable at 28 cents per mile.
  • Mileage incurred prior to 7/1/99 continues to be reimbursable at 25 cents per mile.

Same Request for Physician’s Report of WC Injury

Below is a sample request to a medical provider for Physician’s Report of Workers’ Compensation Injury Form: 

Dear Sir or Madam:

As you may be aware, effective May 23, 2008, all doctors who are certified and who render treatment pursuant to Delaware’s Workers’ Compensation Act must complete and forward the Physician’s Report of Workers’ Compensation Injury Form to the employer, insurance carrier and to the patient within ten days of initial treatment . Specifically, 19 Del.C. § 2322E(b) states “every health care provider who evaluates or treats an employee shall complete and submit, as expeditiously as possible and not later than ten (10) days after the date of first evaluation or treatment, a report of employee condition and limitations, on a form adopted for that purpose pursuant to this Section, and shall expeditiously provide copies of the report of employee condition and limitations to the employee, the employer and the employer’s insurance carrier, if applicable.”

Enclosed is a copy of the form for your convenience.

We have not received this form from you despite the fact that 10 days have elapsed since your initial treatment.

Please note that 19 Del.C. § 2322F(g) provides for a fine of not less than $1,000 nor more than $5,000 for violations of the foregoing provision.

We look forward to receiving this form from you at your soonest convenience.

Very truly yours,

Senate Bill #1

Senate Bill No. 1, which provides sweeping changes to Delaware’s Workers’ Compensation Act for the first time since its inception in 1917, was signed 1/17/07.

The entire text of the bill is available here.

House Bill No. 175 (Effective 6/27/13)

House Bill 175

Effective 6/27/13, Governor Markel signed House Bill 175 into legislation. This bill and the Department of Labor Regulations expected to be passed in conjunction with HB 175 are intended to positively impact workers’ compensation rates in the state of Delaware. Many of the changes are reductions or freezes to charges permitted under Delaware’s Fee Schedule, including Anesthesia, Pathology, Lab/ Drug Screening, Prescription medication and the like. Your bill processor vendor should be made aware of same.

EMDAR form:

This bill resulted in important changes to the carrier’s obligation to produce a completed Employer’s Modified Duty Availability Report under Section 2322E(d). Effective 6/27/13, the carrier is now “independently responsible” for obtaining from the employer a completed EMDAR form and distributing same to the claimant’s health care provider. The carrier now must produce this form “within 14 days of the issuance of an agreement as to compensation to the claimant for any period of total disability benefits.” This is a change from the prior requirement that carriers/employers submit the report within 14 days of receiving the Physician’s Report of Workers’ Compensation Injury form from the treating physician.The Department of Labor has created a new Agreement form due to this change (this is available on the forms section of our Resources Page) and is expected to create a new Employer’s Modified Duty Availability Report form in conjunction with the Regulations.

UR Appeal Deadline:

The bill also amended §2361 to include a 45-day time limit for a party to appeal a Utilization Review decision. Accordingly, all parties will have 45 days from the date they receive a UR decision to appeal same. By way of reminder, UR decisions are mailed to the carrier and are not mailed to defense counsel, so if you would like us to assist in a UR appeal petition, please make certain to advise us in advance of this time limit.

Strangest Comp Claim Ever?

Dear Boss,

I write this note to you to tell you of my plight and at the time of writing I am not a pretty sight; my body is all black and blue, my face a deadly grey. And I hope you’ll understand why Paddy’s not at work today. I was working on the 14th floor, some bricks I had to clear; And throwin’ ’em down from such a height was not a good idea; the foreman wasn’t pleasant, he being an awful sod; and he said I’d have to take them down the ladder in my hod. Well, clearing all these bricks by hand, it was so awful slow; so I hoisted up a barrel and secured a rope below; but in my haste to do the job, I was too blind to see that a barrel full of building bricks was heavier than me. So I went down to cut the rope and the barrel feel like lead; and clinging tightly to the rope, I started up instead; I shot up like a rocket, and to my surprise I found that halfway up I met the bloody barrel coming down. Well, the barrel struck my shoulder as to the ground it sped. And when I reached the top I hit the pulley with my head; I spun around, all stunned and shocked, from this almithy blow, while the barrel spilled out half the bricks, 14 floors below. Now when these bricks had fallen from the barrel to the floor, I then outweighed the barrel, and I started down once more; still clinging tightly to the rope, I headed towards the ground, and feel upon the building bricks that we still scattered ’round. Now as soon as I had hit the ground, I thought I’d passed the worst, when the barrel hit the pully and then the bottom burst; a shower of bricks fell down on my; I hadn’t got a hope, and as I was losing consciousness, I let go the bloody rope. Well, the barrel – now being heavier – it started down once more, struck across me smartly as I lie there on the floor; it broke some ribs and my left arm, and I can only say, I hope you understand why Paddy’s not at work today. 

DE Dept of Labor Message 10.10.13

 Delaware Office of Workers’ Compensation (OWC)

Health Care Payment System (HCPS) 

If you have any additional questions, feel free to call (302-761-8200) or e-mail

hcpaymentquestions@state.de.us ) the Delaware Office of Workers’ Compensation, Medical Component.

The attached pharmacy formulary and “Justification For Use Of Non-Preferred Medication” have been revised to better reflect the provisions of 19 DE Admin Code 1341, Section 4.13, for Pharmacy, which I pasted at the bottom of this e-mail.  The revised forms will be available on the OWC web page, as of Friday, 10/11/13.  You may download the HCPS regulations in their entirety at http://dowc.ingenix.com/info.asp?page=rules#413.  Please note the following changes:

 

“JUSTIFICATION FOR USE OF NON-PREFERRED MEDICATION” FORM:

  • Added instructions, including the distribution.

 

PHARMACY FORMULARY:

  • The mandatory pharmacy formulary no longer contains “prior to approval” language in the criterion column or under the headings, except for an added section that contains the specific drugs listed in 19 DE Admin Code 1341, Section 4.13.5.
    • Pursuant to 19 DE Admin Code 1341, Section 4.13.5, Oxycontin, oxycodone, Actiq, and transmucosal fentanyl require “prior written approval” from the carrier or self-insured employer.  However, an employee on a “stable dose” of Oxycontin prior to 9/11/13 may continue to be prescribed Oxycontin, as long as the dose remains the same.  If the “stable dose” needs to change at some point after 9/11/13, “prior written approval” will then be needed from the carrier or self-insured employer.
  • Pursuant to 19 DE Admin Code 1341, Section 4.13.8, non-preferred agents on the pharmacy formulary and brand name drugs require the physician’s or authorized individual’s completion of a “Justification For Use Of Non-Preferred Medication” form.  They do not require prior written approval. 
    • Non-preferred agents – In addition to the justification form, two preferred agent trials must be documented in the medical record when non-preferred agents are prescribed. 
    • Brand name drugs not covered in the categories on the pharmacy formulary.  Only completion of the justification form (no trials) is required for physicians or authorized individuals to prescribe brand name drugs.
  • ANALGESICS, NARCOTIC LONG – Tramadol ER is now a preferred agent and (Kadian) was removed from the non-preferred agent column.  Kadian was inadvertently included in both the preferred and non-preferred columns.
  • NEUROPATHIC PAIN – Neurontin was removed from the non-preferred agent list.  Gabapantin (same drug in generic form) was already listed as a preferred agent.
  • This mandatory pharmacy formulary contains all the preferred and non-preferred agents allowed in the categories it contains (Anlagesics, Narcotic Short; Analgesics, Narcotic Long; Neuropathic Pain; NSAIDs; and Ophtalmics, Alergic Conjuctivitis).  If a drug in these categories is not on the mandatory formulary, then it is not allowed.  However, all other categories of drugs not included in the formulary follow the generic versus brand name instructions pursuant to 19 DE Admin Code 1341, Section 4.13. 

 

 

19 DE Admin Code 1341, Section 4.13:

 

 4.13 Pharmacy

table of contents

 

 

4.13.1

Prescribed drugs are capped at the lesser of the provider’s usual charge; a negotiated contract amount; or the Average Wholesale Price (AWP) for the National Drug Code (NDC) for the prescription drug or medicine on the day it was dispensed minus twelve percent (12%) plus a dispensing fee of four dollars ($4.00) for brand name drugs or medicines, or minus twenty percent (20%) plus a dispensing fee of five dollars ($5.00) for generic drugs or medicines. If the actual charge is less than this amount, then it is the maximum allowed. Physicians dispensing drugs from their office do not receive the dispensing fee referenced above.

 

4.13.2

Definitions:

   

4.13.2.1

“Average Wholesale Price” or “AWP” means the average wholesale price of a prescription drug as provided in the most current release of the Red Book by Thomson Media or Medi-Span Master Drug Database by Wolters Kluwar Health on the day a prescription drug is dispensed or other nationally recognized drug pricing index adopted by the Health Care Advisory Panel (HCAP).

   

4.13.2.2

“Brand name drug” means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(c).

   

4.13.2.3

“Generic drug” means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(j).

 

4.13.3

Notwithstanding any other provision, if a prescription drug or medicine has been repackaged, the Average Wholesale Price used to determine the maximum reimbursement in controverted and uncontroverted cases shall be the Average Wholesale Price for the underlying drug product, as identified by its national drug code, from the original labeler.

 

4.13.4

Compounding includes the preparation, mixing, assembling, packaging, or labeling of a drug or device as the result of a practitioner-patient-pharmacist relationship in the course of professional practice. Compound drugs shall be billed by listing each drug included in the compound and separately calculating the charge for each drug, using national drug codes (NDC). When compounding, a single compounding fee of ten dollars ($10.00) per prescription shall be added to the calculated total.

 

4.13.5

As of the effective date of this Regulation, Oxycontin as well as oxycodone extended release; and Actiq, as well as transmucosal fentanyl, are not on the Preferred or Non-Preferred Medication List and may only be used with prior written approval of the employer or its insurance carrier. However, an employee on a stable dose of Oxycontin prior to the effective date of this Regulation may continue the use of this medication after the effective date of this Regulation.

 

4.13.6

The Fee Schedule created by this Regulation shall not apply to prescription drugs or medicines provided as part of treatment subject to the inpatient Fee Schedule set forth in 19 Del. C. §2322B(8).

 

4.13.7

Pursuant to this Regulation, the “Preferred Agents” and “Non-Preferred Agents” categories, as set forth on the Department of Labor (DOL) web site is hereby adopted. The Health Care Advisory Panel (HCAP) shall review on an annual basis, beginning July 1, 2014, those portions of the Preferred Drug List (PDL) referenced above.

 

4.13.8

When a brand name drug is prescribed to treat an injury for which a carrier or self-insured employer is liable, the pharmacist or medical provider dispensing the drug or medication shall substitute a preferred/generic drug pursuant to this Regulation as set forth above. A physician may prescribe and a pharmacist must dispense a non-preferred/brand name drug or medication only upon the physician’s or other authorized individual’s completion of the “Justification For Use Of Non-Preferred Medication” form, approved by the Health Care Advisory Panel and set forth on the Department of Labor (DOL) web site. A provider may prescribe a medication from the Non-Preferred Agent list if the patient has trialled the use of two preferred agents and the trials have failed due to lack of efficacy or unacceptable side effects. Preferred agent trials should be documented in the medical record.

 

Please call (302-761-8200) or e-mail hcpaymentquestion@state.de.us, if you have questions concerning this message.

Sincerely,

Donna Forrest

Medical Component Manager, Delaware Office of Workers’ Compensation

4425 N. Market St., 3rd Floor, Wilmington, DE  19802

Phone:  302-761-8200  Fax:  302-761-6601   hcpaymentquestions@state.de.us

 

DE Dept of Labor Message 9.6.13

Delaware Office of Workers’ Compensation (OWC)

Health Care Payment System (HCPS)

Please do not respond to this ListServ e-mail.  

If you have any additional questions, feel free to call (302-761-8200) or e-mail

hcpaymentquestions@state.de.us ) the Delaware Office of Workers’ Compensation, Medical Component. 

As many of you may already know, significant workers’ compensation regulation changes go into effect on Wednesday, September 11, 2013.  Between now and then, the DOL web pages that contain the DE Workers’ Compensation HCPS will significantly change.  The web page now contains the new itemized fee schedule, fee schedule introduction and guidelines; utilization review; health care practice guidelines, the new drug formulary, the new “Justification for Use of Non-Preferred Medication” form, and a revised “Employer Modified Duty Availability Report”.  Keep in mind, DOL publishes all the past iterations of the itemized fee schedule and fee schedule introduction and guidelines, so users may still access them for treatment or services rendered prior to 9/11/13.  The provider certification and frequently asked questions pages will be published to the web on 9/9/13 or 9/10/13.  The regulation changes go into effect on 9/11/13; and until then, folks still need access to the current FAQ page (we don’t publish all the iterations of the FAQ page).  You may also notice a different look to the published certified provider list.  We will send more info regarding the list later next week.  As the changes are published to the web, you may access them at http://dowc.ingenix.com/DWC.asp.    

 

The Sept 2013, Register of Regulations newsletter contains the final regulations and is available now athttp://regulations.delaware.gov/register/september2013/final/17%20DE%20Reg%20322%2009-01-13.htm.  You will find the following technical changes from the proposed (July 2013) to the final (Sept 2013) version of the published regulations:

 

  • ANESTHESIA – 19 DE Admin Code 1341, Section 4.20.1.1 – The proposed regulations omitted the complete formula needed to uniformly calculate anesthesia fees.  The final version contains the omitted pieces.
  • REVENUE NEUTRAL – 19 DE Admin Code 1341, Section 4.3.3 – The proposed regulations omitted where (on the DOL’s web page) users would find any special instructions available to maintain revenue neutrality when coding changes do not calculate as a simple A + B = new fee.
  • ACUPUNCTURE – 19 DE Admin Code 1342, PARTS A-F, of the Health Care Practice Guidelines – The originally proposed regulations omitted language that was included when the Lower Extremities practice guideline was added in 2011.  The final versions of all the other (PARTS A-F) health care practice guidelines (lower extremities already contains this language) now add “or a licensed acupuncturist” to the list of health care providers, who should perform acupuncture.

 

Attached are the following documents you may find helpful:

  • LIST OF REG CHANGES…. – This list itemizes all the regulation changes in the fee schedule instructions and guidelines, as well as the workers’ compensation health care practice guidelines and the changes from the proposed (July 2013) to the final (Sept 2013) versions of the regulations published in the Register of Regulations newsletters.  It’s a great tool to use when you review the regulation changes.
  • FAQ Page Changes….. – This lengthy document contains a complete copy of the revised frequently asked questions page, which is scheduled to be published to the DOL web page on 9/9/13 or 9/10/13.  As I mentioned earlier, folks will need the current FAQ information until 9/11/13.
  • FORMS Employer…. – The revised “Employer’s Modified Duty Availability Report” now includes the carriers’ distribution responsibilities, which went into effect on 6/27/13 (when HB175 was signed into law).  While we went through this process, we appreciate that folks had to conform to the statute change from 6/27/13 until 9/11/13 using a form with outdated instructions.
  • Pharmacy Formulary… – This new mandatory pharmacy formulary replaces its recommended predecessor and hones in on certain categories of drugs, particularly those that put users at risk for addiction/abuse.  You may find other categories of drugs discussed within the appropriate workers’ compensation health care practice guidelines. 19 DE Admin Code 1341, Section 4.13.8 (“the regulations”) guides the use of generic (“preferred) over brand name (“non-preferred”) drugs (see http://dowc.ingenix.com/info.asp?page=rules#413).  
  • Pharmacy Justification Form… – A new form (see attached) physicians must use to justify prescribing a brand name (“non-preferred”) drug. 

 

Itemized Fee Schedule – 9/11/13 Update

 

You will notice significant changes in the Itemized Fee Schedule, effective for treatment or services provided on or after 9/11/13.

  • Anesthesia codes are now omitted from the itemized fee schedule and are paid using a specific per unit charge and standardized calculation, which is embedded in 19 DE Admin Code1341, Section 4.20.1.1 (“the regulations”).  Once the statutorily mandated fee freeze ends with the January 31, 2014 update, the increased (based on the change in the consumer price index) unit charge will be published on the DOL web site in the HCPS’ frequently asked questions page (FAQ#6).  The standardized calculation will remain the same.
  • HB175 and these regulation changes are reflected in the itemized fee schedule.  If you review the attached “LIST OF REG CHANGES…,” note where it says “Adds 85% of (extra 15% discount).”  Those categories of medical codes will show a 15% decrease in fees.   
  • HB175 mandated the use of a formula based on CMS relative value units where insufficiently reliable data previously existed (see 19 Del. C. §2322B(3)(b) athttp://delcode.delaware.gov/title19/c023/sc02/index.shtml).  You will see a significant reduction in medical codes listed in the itemized fee schedule at POC85.  Wherever POC85 fees still exist, either 1) CMS did not have a relative value unit or 2) not enough fee data points existed to create a statistically valid conversion factor.  Both of those elements were needed to create a specific fee.

 

Special Revenue Neutral Instructions for Electromyography CPT Codes, Effective 9/11/13

In 2012, CPT codes 95885 and 95886 were added and now bundle electromyography codes (95860, 95861, 95863, 95864, and 96870) previously billed using separate fees.  Effective 9/11/13, the CPT codes 95885 and 95886 in the itemized fee schedule only reflect the fees for one (1) extremity.  The following table gives the revenue neutral fees for all the extremities.  

 

CPT Code 95885

CPT code 95886

Number of Extremities

Fee – geozip 197/198

Fee – geozip 199

Number of Extremities

Fee – geozip 197/198

Fee – geozip 199

1

$228.69

$73.20

1

$354.99

$207.64

2

$268.27

$115.55

2

$416.43

$327.78

3

$315.91

$172.88

3

$490.38

$490.38

4

$316.86

$147.95

4

$491.86

$419.67

I apologize for the lengthy e-mail, but I am trying to give you as much info as I can to tackle these voluminous changes.  Please call (302-761-8200) or e-mail hcpaymentquestion@state.de.us, if you have questions concerning this message.

Sincerely,

Donna Forrest

Medical Component Manager, Delaware Office of Workers’ Compensation

4425 N. Market St., 3rd Floor, Wilmington, DE  19802

Phone:  302-761-8200  Fax:  302-761-6601   hcpaymentquestions@state.de.us

DE Dept of Labor Message 7.11.13

Delaware Office of Workers’ Compensation (OWC)

Health Care Payment System (HCPS)

 Please do not respond to this ListServ e-mail.  

If you have any additional questions, feel free to call (302-761-8200) or e-mail

hcpaymentquestions@state.de.us ) the Delaware Office of Workers’ Compensation, Medical Component.

REVISED “AGREEMENT AS TO COMPENSATION PAID” FORM NOW AVAILABLE ONLINE

 

Pursuant to 19 Del. C. 2322E(d) and effective 6/27/13, OWC has published a revised “Agreement as to Compensation Paid” form.  The form is available through the OWC website athttp://dia.delawareworks.com/workers-comp/forms.php.  Proposed changes to the “Employer’s Modified Duty Availability Report” are currently moving through the regulatory process.  In the meantime, continue to use the Employer’s Form currently available on the OWC website at http://dowc.ingenix.com/info.asp?page=forms.

 

19 Del. C. §2322E(d):

(d) Within 14 days of the issuance of an Agreement As To Compensation to an employee for any period of total disability, the employer shall provide to the health care provider/physician

most responsible for the treatment of the employee’s work-related injury and to the employer’s insurance carrier, if applicable, a report of the modified-duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified-duty jobs to the health care provider/physician. The health care provider portion of the employer’s modified duty availability report must be signed and returned by the health care provider within 14 days of the next date of service after receipt of the form from the employer, but not later than 21 days from the health care provider’s receipt of such form.

 

Please call (302-761-8200) or e-mail hcpaymentquestion@state.de.us, if you have questions concerning this message.

 

Sincerely,

 

Donna Forrest

Medical Component Manager, Delaware Office of Workers’ Compensation

4425 N. Market St., 3rd Floor, Wilmington, DE  19802

Phone:  302-761-8200  Fax:  302-761-6601   hcpaymentquestions@state.de.us

Subscribe/Unsubscribe to the ListServ:  http://dia.delawareworks.com/workers-comp/hcps/provider-certification.php

HCPS web page:  http://dowc.ingenix.com/DWC.asp       OWC Facebook Page: http://www.facebook.com/#!/DelawareOWC  

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