FEE SCHEDULE NEWS:

• The DWC has adopted a MTUS Drug Formulary with an effective date of January 1, 2018.
• The Physician Fee Schedule has been updated with an effective date of January 1, 2018. Statewide geographic adjustment factors and conversion factors have been updated. The next update is expected for April 1, 2018.
• The Practitioner Services Medically Unlikely Edits and the National Correct Coding Initiative Practitioner PTP Edits have been updated with an effective date of January 1, 2018. The next update is expected for April 1, 2018.
• The DMEPOS Fee Schedule has been updated effective January 1, 2018.  The next update is expected for April 1, 2018.
• The Clinical Lab Fee Schedule has been updated with an effective date of January 1, 2018. The DWC has adjusted the pathology and clinical laboratory fee schedule to conform with the changes to the Medicare payment system adopted by CMS for calendar year 2018. The next update is expected in January 2019.
• Medi-Cal rates have been released with an effective date of December 15, 2017. The next update is scheduled for January 15, 2018.
• Ambulance fee schedule has been updated with an effective date of January 1, 2018. The state has adopted the 2018 changes to the Medicare Payment System for ambulance.  The next update is expected in January 2019.
•  

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) is pleased to announce the approval of a labor-management “carve-out” agreement between the City of Los Angeles and the Los Angeles Police Protective League. The agreement covers an estimated 10,000 union members.  Carve-out programs allow employers and unionized workforces to create their own alternatives for workers' compensation benefit delivery and dispute resolution under a collective bargaining agreement.  Eligibility of parties to participate in a program must be approved by the administrative director of the Division of Workers' Compensation. There are 57 active labor-management carve-out agreements in California, including 27 that cover public safety unions, 21 in the construction industry, and nine in other industries.  The requirements to participate and the elements required to be in carve-out programs are contained in Labor Code section 3201.5 for the construction industry and Labor Code section 3201.7 for all other industries, as well as California Code of Regulations, title 8, sections 10200-10204.  Reports covering prior years of the program, which has been in force for construction trades since 1993 and for non-construction workforces since 2004, are available on DWC’s website.
• Labor Code §§129 and 129.5 require the Audit and Enforcement Unit of the Division of Workers’ Compensation (DWC) to conduct a profile audit review (PAR) for all adjusting locations of California workers’ compensation claims at least once every five years.  Performance of the adjusting locations is measured in five areas of claims administration:
  • The payment of accrued and undisputed indemnity;
  • The late first payment of temporary disability / first notice of salary continuation;
  • The late first payment of permanent disability and death benefits;
  • The late subsequent indemnity payments;
  • The provision of notices with QME/AME advice.

The administrative director annually establishes profile audit review and full compliance audit (FCA) standards in accordance with Labor Code §§129(b)(1) and (2) and Title 8, California Code of Regulations §10107.1. The 2018 standards are based on the audit results of calendar years 2014 through 2016. Performance standards for 2018 The PAR performance standard for audits conducted in 2018 is 1.47573. Audit subjects with PAR performance ratings of 1.47573 or lower will be required to pay any unpaid compensation, but no penalties will be assessed. If an audit subject’s PAR performance rating is 1.47574 or higher, the audit will expand to a FCA, and an additional sample of indemnity claims will be audited. The FCA performance standard for audits conducted in 2018 is 1.67487. Audit subjects with an FCA performance rating of 1.67487 or less will be required to pay any unpaid compensation and penalties will be assessed for all violations involving unpaid and late paid compensation. If an audit subject’s full compliance audit performance rating is 1.67488 or higher, an additional sample of denied claims as well as the expanded sample of indemnity claims will be audited. Penalties will be assessed for all violations as appropriate pursuant to 8CCR §§10111 through 10111.2.   More information on the performance standards that will be in use for the profile audit reviews and full compliance audits during calendar year 2018 will be posted on the DWC Audit and Enforcement Unit web page.

• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Ambulance services section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.   The update order is effective for services rendered on or after January 1, 2018, and can be found at the DWC website’s http://www.dir.ca.gov/dwc/OMFS9904.htm.
• The Division of Workers’ Compensation (DWC) is announcing the increase of the mileage rate for medical and medical-legal travel expenses by one cent to 54.5 cents per mile effective January 1, 2018.  This rate must be paid for travel on or after January 1, 2018 regardless of the date of injury. Labor Code section 4600, in conjunction with Government Code section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS).   IRS Bulletin Number IR-2017-204 dated December 14, 2017 announced the rate increase. The updated mileage reimbursement form is posted on the DWC website.
• The Division of Workers' Compensation (DWC) has posted an adjustment to the pathology and clinical laboratory section of the Official Medical Fee Schedule to conform to the 2018 changes in the Medicare payment system, as required by Labor Code section 5307.1.  The public should take note that the Medicare Clinical Laboratory Fee Schedule methodology has changed for the 2018 update. Due to changes in federal law, the Medicare Clinical Laboratory Fee Schedule for 2018 is based upon data establishing weighted median private payor rates, and “cross walking” or gap-filling where private payor rates are not available. The new methodology does not use geographic adjustments.   The order adopting the updated 2018 Pathology and Clinical Laboratory Fee Schedule is effective for services rendered on or after January 1, 2018 and can be found at http://www.dir.ca.gov/dwc/OMFS9904.htm#2.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to the 2018 changes in the Medicare payment system as required by Labor Code section 5307.1. The order, which is effective for services on or after January 1, 2018, adopts the Medicare DMEPOS fee schedule first release for calendar year 2018. The order adopting the adjustment can be found on the DWC website.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Physician Services/Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to relevant 2018 changes in the Medicare payment system as required by Labor Code section 5307.1. The order is the second Administrative Director order for the 2018 update to the Physician and Non-Physician Practitioner Fee Schedule.  It adopts a revised Relative Value Unit (RVU) file for 2018, which was issued by the Centers for Medicare and Medicaid Services on December 20, 2017. The Administrative Director Order dated December 27, 2017 adopts the updated 2018 RVU file and makes a minor technical correction to the text of regulation. The Administrative Director update order adopting the OMFS adjustment is effective for services rendered on or after January 1, 2018, and can be found at http://www.dir.ca.gov/dwc/OMFS9904.htm.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective June 15, 2020; however, no updates to the data were adopted. The next update is expected July 15, 2020.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The following OMFS adjustments are effective for services rendered on or after July 1, 2020:
  • CMS’ Medicare National Physician Fee Schedule Relative Value File RVU20C July 1, 2020 quarterly update

• • National Correct Coding Initiative Practitioner Procedure to Procedure (PTP) Edits July 1, 2020 quarterly update
  • National Correct Coding Initiative Medically Unlikely Edits July 1, 2020 quarterly update (excluding MUE “0” value codes)
  • CMS’ Zip Code to Carrier Locality files July 1, 2020 quarterly update, for Geographic Practice Cost Index (GPCI) locality mapping
  • National Correct Coding Initiative Medically Unlikely Edits April 1, 2020 quarterly update file, “Practitioner Services MUE Table - Effective 04-01-2020 (ZIP),” (excluding MUE “0” value codes) is replaced by “Practitioner Services MUE Table - Replacement Effective 04-01-2020 (ZIP),” (excluding MUE “0” value codes).  The replacement Practitioner Services MUE Table is retroactive to April 1, 2020.
• The order adopting the above OMFS adjustments can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#7.
• The DWC has posted an order adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The order adopts the Medicare July 2020 clinical laboratory update.
• The DWC has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to the changes in the Medicare payment system as required by Labor Code section 5307.1. The order, which is effective for services on or after July 1, 2020, adopts the Medicare DMEPOS fee schedule third quarter release for calendar year 2020

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) has posted draft revisions to the Official Medical Fee Schedule regulations that govern the maximum reasonable fee for pharmaceuticals dispensed to injured workers. Under the California Labor Code, the fee schedule for dispensed pharmaceuticals is based primarily upon the Medi-Cal pharmacy payment system. Medi-Cal has implemented a revised payment methodology approved by the Centers for Medicare and Medicaid Services (CMS) utilizing “National Average Drug Acquisition Cost” (NADAC) based upon survey data compiled by CMS instead of the “average wholesale price” (AWP). The new Medi-Cal methodology also revises the pharmacy dispensing fee value and structure by updating the dispensing fee from $7.25 to a two-tier dispensing fee of $10.05 or $13.20, depending on the volume of pharmacy claims processed. DWC proposes to amend the workers’ compensation pharmaceutical fee schedule in accordance with the provisions of Labor Code section 5307.1, and in light of the Medi-Cal payment system changes. The proposed regulations set forth separate provisions for pharmacy-dispensed and physician-dispensed pharmaceuticals in order to implement statutory provisions with additional fee caps for some physician-dispensed pharmaceuticals. The draft regulations, a sample excerpt of the fee data file, a sample excerpt of the dispensing fee file and background information on the Medi-Cal fee methodology changes are available on the DWC Forum webpage under “current forums.” Comments will be accepted on the forum until 5 p.m. on Friday, July 3, 2020.  To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.  To view additional information regarding the proposed regulation, go to https://www.dir.ca.gov/dwc/ForumDocs/2020/Pharmaceutical-Fee-Schedule/Pharmaceutical-Fee-Schedule.htm.
• The Division of Workers’ Compensation (DWC) has issued a notice of conference call public hearing for proposed evidence-based updates to the Medical Treatment Utilization Schedule (MTUS), which can be found at California Code of Regulations, title 8, section 9792.23.  The conference call public hearing is scheduled for Thursday, July 23 at 10 a.m. and members of the public may attend by calling 866-390-1828 and using access code 5497535#. Members of the public may review and comment on the proposed updates no later than July 23. The proposed evidence-based updates to the MTUS incorporate by reference the latest published guidelines from American College of Occupational and Environmental Medicine (ACOEM) for the following:
  • Occupational Interstitial Lung Disease Guideline (ACOEM November 8, 2019);
  • Knee Disorders Guideline (ACOEM December 3, 2019);
  • Workplace Mental Health Guideline: Depressive Disorders (ACOEM February 13, 2020);
  • Occupational/Work-Related Asthma Guideline (ACOEM June 5, 2020).

The proposed evidence-based updates to the MTUS regulations are exempt from Labor Code sections 5307.3 and 5307.4 and the rulemaking provisions of the Administrative Procedure Act. However, DWC is required under Labor Code section 5307.27 to have a 30-day public comment period, hold a public hearing, respond to all the comments received during the public comment period and publish the order adopting the updates online. To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.  To view the rule and updated guidelines being adopted, go to https://www.dir.ca.gov/dwc/DWCPropRegs/2020/MTUS-Evidence-Based-Updates-June-2020/MTUS-Evidence-Based-Update.htm.

• The Division of Workers’ Compensation (DWC) has posted proposed amendments to the Medical-Legal Fee Schedule to its online forum where members of the public may review and comment on the proposals. The draft regulations include:
  • A 25% increase in the multiplier for setting fees for evaluations.
  • Standardization of the fee that can be charged for a missed appointment.
  • Flat fees for comprehensive, follow-up, and supplemental medical-legal evaluations.
  • Rates for review of medical records based upon the amount of pages reviewed.
  • Elimination of complexity factors from the Medical-Legal Fee Schedule.
  • An increase in the hourly fee for medical-legal testimony.

The implementation of a predominantly fixed fee for all procedure billing codes is anticipated to reduce frictional costs. Moving to a flat-fee-based schedule and removing complexity factors is contemplated to reduce the incidence of disputes over billing. The fee schedule was formulated after numerous stakeholder meetings where carriers, employers, physicians, and medical management companies were amply represented. The meetings took place over the course of approximately three months. The forum can be found on the DWC forums web page at https://www.dir.ca.gov/dwc/DWCWCABForum/1.asp  under “current forums.” Comments will be accepted on the forum until 5 p.m. on Friday, July 10, 2020.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective May 15, 2020 however, no updates to the data were adopted. The next update is expected June 15, 2020.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to additional 2020 changes in the Medicare payment system as required by Labor Code section 5307.1 with an effective date of March 6, 2020.
• The Division of Workers’ Compensation (DWC) has posted an order dated May 7, 2020, adjusting the Physician and Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to additional Medicare fee schedule changes pursuant to Labor Code section 5307.1 with a retroactive date of March 1, 2020. The Interim Final Rule adopts an expanded list of medical services (“Covered Telehealth Services for PHE for the COVID-19 pandemic effective March 1 2020-updated April 30 2020”) that may be billed for telehealth using video and audio technology, and includes identification of services that could be provided through audio-only where medically appropriate. The CMS Interim Final Rule temporarily increases fees for three telephone evaluation and management codes (CPT codes 99441, 99442, 99443) retroactive to March 1, 2020 to provide parity between these codes and evaluation and management codes for services rendered in person or by audio/video telehealth. DWC has adopted the retroactive increases for these three codes, which will support the provision of medical care for injured workers and further the goal of maintaining social distancing. The Administrative Director order also adopts the CMS revised 2020 Relative Value Unit file, “RVU20B (Updated 05/01/2020),” which replaces the initial quarter two RVU20B file. The revised file is substantially identical to the original file. The significant change for workers’ compensation services is the increase of the relative values for CPT codes 99441 through 99443 discussed above. Workers’ compensation claims administrators should adjust payment systems in light of the retroactive changes and set up a process to reevaluate claims for services rendered on or after March 1, 2020 that may have additional payment due so that the balance owing is remitted to the provider.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule (OMFS) to conform to additional Medicare updates to COVID-19 testing codes and fees as required by Labor Code section 5307.1. The Administrative Director update order dated May 21, 2020 adopts additional codes and fees to supplement the COVID-19 testing codes and fees adopted by the Order dated April 15, 2020. The OMFS adjustment adopts fees retroactively to the Medicare effective dates as follows: CPT Code 87635 (infectious agent detection by nucleic acid tests) - effective for services on or after March 13, 2020, CPT codes 86769 and 86328 (for antibody tests) - effective for services on or after April 10, 2020. The Administrative Director update Order can be found at the DWC OMFS Pathology and Laboratory Fee Schedule webpage.
• On March 30, 2020, the Administrative Director of the Division of Workers’ Compensation (DWC) issued an order that title 8, California Code of Regulations, section 9789.39, pertaining to the Hospital Outpatient Departments and Ambulatory Surgical Centers Fee Schedule portion of the Official Medical Fee Schedule, be adjusted to conform to changes in the Medicare system, effective for services rendered on or after April 1, 2020. Subsequently, on May 4, 2020, the Centers for Medicare, and Medicaid Services (CMS) issued a corrected Addendum B to supersede the previous document, effective April 1, 2020. The order is the second Administrative Director order for services rendered on or after April 1, 2020 to the Hospital Outpatient Departments/Ambulatory Surgical Centers Fee Schedule. The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes:     Adopt and incorporate by reference CMS’ HOPPS addendum B found in the April 2020 CORRECTION (ZIP) – updated 5/4/2020 file, in place of the original file, for services rendered on or after April 1, 2020, except that HCPCS Code C9803 is effective for services on or after March 1, 2020.     Certain sections of the CMS Medicare OPPS April 2020 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V21.1 R2 Apr 2020 quarterly update. On April 30, 2020, CMS issued the Interim Final Rule with Comment Period [CMS-5531-IFC] “Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program.” The Interim Final Rule with Comment Period [CMS-5531-IFC] adopts a wide variety of temporary emergency provisions to address the COVID-19 pandemic in order to increase access to needed care and appropriately reimburse medical providers. In the Interim Final Rule, CMS adopts a new COVID-19 specimen collection code, C9803, effective March 1, 2020, to be used by hospital outpatient departments during the public health emergency. The Administrative Director update order dated March 30, 2020 remains in effect for services rendered on or after April 1, 2020, except as modified by Administrative Director order dated May 15, 2020. The Orders and regulations can be found at the DWC website’s OMFS page.

REGULATORY ACTIVITY:

• Published notice of denial of petition by Joseph V. Capurro, California Applicants’ Attorney’s Assn. The DWC received Petitioner’s letter on March 17, 2020.  The  Petitioner  re- quests that the DWC amend a provision of former California Code of Regulations, title 8 (“8 CCR”), section 9785(b)  to  require  that  any  discharge  of  an  injured worker from further treatment by the primary treating physician must include a personal exam by the primary treating physician and that the discharge be documented in either a PR3, PR4 or Medical−Legal Report.
• The Insurance Commissioner Ricardo Lara issued a Bulletin extending his previous order requiring insurance companies to return partial insurance premiums to consumers and businesses and provide much-needed financial relief amid the ongoing COVID-19 pandemic. The Department of Insurance will review all premium adjustments to ensure they are fair and adequate and reflect policyholders’ reduced risk. The Bulletin now includes the month of May, having already included the months of March and April, covering at least six different insurance lines: private passenger automobile, commercial automobile, workers’ compensation, commercial multi-peril, commercial liability, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the COVID-19 pandemic. The Commissioner’s Bulletin 2020-4 requires insurance companies to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other appropriate adjustment as soon as possible, and no later than August 11, 2020. For most if not all consumers, this will be a percentage of the premium — not 100 percent — and the Department of Insurance will validate each insurance company’s plan so that refunds are adequate and reflect the reduced risk.    To view the bulletin, go to  https://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/bulletins.cfm.
• The Division of Workers’ Compensation (DWC) announces its emergency regulations for medical-legal evaluations became effective on May 14, 2020 and will expire on January 12, 2021 (in accordance with Executive Order N-40-20) with two possible 150-day extensions, if Executive Order N-40-20 remains in effect. The emergency regulations can be found on the DWC website. DWC filed the emergency regulations with the state’s Office of Administrative Law (OAL) on May 4, 2020 and received public comment on the regulations through May 12, 2020. Based on public comments and feedback from OAL, slight edits were made to the regulations. The edits include § 78 was renumbered to § 46.2. Slight edits were also made to § 46.2(a) removing “and remunerated”; § 46.2(a) (2) (A) providing for clarification regarding form 110; § 46.2(a) (3) (E) providing the attestation be “in writing”; and § 46.2(e) providing for an assessment of stay-at-home orders in the jurisdiction where the injured worker resides or where the evaluation occurs. Slight edits were made to § 36.7(d) providing clarification of form 122 and § 36.7(e) changed the reference to regulation § 39 to § 39.5. These emergency regulations will help injured workers and employers continue to move their workers’ compensation claims towards a resolution and avoid additional and undue delay. The regulations concern how medical-legal evaluations may occur during this emergency period. Also provided in the regulations are alternative forms of service for required forms related to medical-legal evaluations and reports.   To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.
• The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) have updated certain forms to properly allow for identifying injuries related to COVID-19. Parties are required to list body part codes when filing these forms. The forms listed below have been updated to include the new body part code which should be used in addition to those indicating specific body parts or functions resulting from the injury. If filing a claim for COVID-19, the body part code is “900.” The new code may be found in the drop-down menu when listing body parts on the forms below. These forms may be found at https://www.dir.ca.gov/dwc/forms.html and are also available to e-filers for use beginning May 23, 2020.  The forms are:
  • Document Cover Sheet;
  • Application for Adjudication of Claim;
  • Compromise and Release; and
  • Stipulations with Request for Award (for injury on or after 1/1/2013).
• The American College of Occupational and Environmental Medicine (ACOEM) and MDGuidelines have released a Coronavirus (COVID-19) Clinical Practice Guideline. The Division of Workers’ Compensation (DWC) supports this guidance and plans to adopt and incorporate the ACOEM Coronavirus (COVID-19) Guideline into the Medical Treatment Utilization Schedule (MTUS).  At this time, however, the evidence-based management of this disease is fluid and evolving and as a result guidelines are published frequently. DWC will wait to adopt and incorporate ACOEM's COVID-19 Guideline into the MTUS until the frequency of updates slows to a point where the formal adoption process can be completed. In the meantime, for treatment recommendations pertaining to COVID-19, follow the MTUS Medical Evidence Search Sequence found in California Code of Regulations, title 8, section 9792.21.1. This regulatory search sequence requires a search of the most current version of ACOEM guidance. The ACOEM COVID-19 Guideline meets that criteria.  To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.html.
• The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to improve their operations during the COVID-19 pandemic. The following changes are going to be effective June 8:
  • Updated Hearing Procedures - Starting June 8 DWC will continue to hear all mandatory settlement conferences, priority conferences, status conferences, case-in-chief trials and expedited hearings telephonically via the individually assigned judges’ conference lines as announced in DWC’s Newslines issued on April 3 and April 28.
  • Beginning June 8, DWC will hear up to 3 lien conferences per judge per calendar session via the individually assigned judges’ conference lines. Lien conferences in excess of that number will be continued. All parties scheduled for a hearing should call the conference line for the judge in front of whom the case is set, at the designated time listed on the hearing notice. When prompted, the parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call. All lien trials will be continued during this time. District offices will not hold in-person hearings.
  • Continuing Filing Procedures: DWC will not accept walk-in filings, walk-through documents, or in-person requests at this time. DWC will only accept electronic filing via EAMS and JET File, and paper filing by U.S. mail. DWC will accept limited email filings pursuant to WCAB’s en banc dated April 6 and its Newsline issued on April 23. Email filings are limited to documents that are subject to a statute of limitations that cannot otherwise be e-filed, JET filed, or filed by U.S. mail. DWC has posted additional information to assist parties with filing settlement documents in EAMS. Refer to the district office page for email and other contact information.  DWC will continue to accept an electronic signature on any settlement documents, applications, pleadings, petitions, or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules. Injured workers who are unable to file utilizing the available options or need assistance may contact DWC’s call center at (909) 383-4522. The WCAB Commissioners' office is closed to the public for in-person inquiries and requests until further notice. The Commissioners and staff are working remotely during the closure.

FEE SCHEDULE NEWS:

• On May 6, 2020, the DWC posted an additional adjustment to DMEPOS to adopt the Medicare Fee Schedule increase required by the CARES Act. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) mandates that fees for DMEPOS supplied in non-rural areas be increased beginning March 6, 2020 in order to support essential services during the COVID-19 pandemic. The DWC order adopts Medicare’s revised file for DMEPOS items supplied to patients on or after March 6, 2020. Workers’ compensation claims administrators will need to adjust payment systems in light of the retroactive change, set up a process to identify claims which involve DMEPOS dispensed in non-rural areas, and ensure that the increased payments are remitted to the provider. To view the order, go to https://www.dir.ca.gov/dwc/OMFS9904.htm#3.
• The DWC has published a new file for Medi-Cal rates effective April 15, 2020. The next update is expected May 15, 2020.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes: The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) April 2020 Addendum A quarterly update The CMS Medicare OPPS April 2020 Addendum B quarterly update. The CMS Ambulatory Surgical Center Payment System, April 2020 ASC Approved HCPCS Code and Payment Rates, Column A entitled “HCPCS Code” of “Apr 2020 ASC AA” and Column A entitled “HCPCS Code” of “Apr 2020 ASC EE” Certain sections of the CMS Medicare OPPS April 2020 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V21.1 R1 Apr 2020 quarterly update. CMS April 2020 Update of the Hospital Outpatient Prospective Payment System (OPPS), Change Request (CR) 11691 (March 25, 2020), Transmittal R10013CP. The order adopting the OMFS adjustments is effective for services rendered on or after April 1, 2020 and is posted on the DWC website. To view the information https://www.dir.ca.gov/dwc/OMFS9904.htm#6.
• The Division of Workers’ Compensation (DWC) has posted an order dated April 15, 2020, adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule (OMFS) to conform to additional changes to the 2nd Quarter 2020 Medicare update, as required by Labor Code section 5307.1 to adopt new COVID-19 testing codes and fees. This is the second Administrative Director order for the quarter two update to the Pathology and Clinical Laboratory Fee Schedule. The Centers for Medicare and Medicaid Services (CMS) issued a revised 2020 Clinical Laboratory Fee Schedule dated April 6, 2020. The revised file supersedes the original file. In addition, on April 14, 2020, CMS issued a CMS Ruling adopting two new COVID-19 testing codes for tests that are performed with “high throughput technology,” which employs automated processing of more than two hundred specimens a day. These new test codes provide a higher level of reimbursement than current codes in light of the more intensive training and resources required for high throughput devices. The new codes and fees are expected to streamline billing and payment for the important medical services involved in COVID-19 testing. The Administrative Director’s April 15 update order adopting the OMFS adjustment is effective for services rendered on or after April 1, 2020, except that specified new COVID-19 testing codes, specimen collection codes, and fees are adopted retroactively to the CMS effective dates. The Administrative Director update Order can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#2.
• The Division of Workers’ Compensation (DWC) has posted an adjustment to the Inpatient Hospital section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes is for discharges occurring on or after January 27, 2020. DWC has amended Title 8, California Code of Regulations, section 9789.25, subdivision (b) to conform to changes in the Medicare payment system in light of the increase in DRG weights for COVID-19 related discharges in accordance with Section 3710 of the CARES Act and MLN Matters Special Edition Article SE20015, dated April 15, 2020. To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.  Further information and adjustments to the Inpatient Hospital section of the Official Medical Fee Schedule can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#4.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) are announcing an update to the modified calendar and filing procedures released on March 16, 2020. This update to the procedures continues to prioritize the health and safety of staff and the public to help prevent the spread of COVID-19.
• In compliance with ongoing stay-at-home orders, the Division of Workers’ Compensation (DWC) has canceled the meeting of the Pharmacy and Therapeutics (P&T) Committee scheduled for Wednesday, April 22, 2020.  The Pharmacy and Therapeutics Committee was established by Assembly Bill No. 1124 (2015) as an advisory body that will consult with the DWC Administrative Director on updates to the Medical Treatment Utilization Schedule (MTUS) drug formulary. Past and future meeting materials can be accessed through the DWC P&T Committee web page. DWC welcomes comment from the public on the formulary drug list. All correspondence should be directed to Formulary@dir.ca.gov.
• Insurance Commissioner Ricardo Lara alerted insurance companies that all workers affected by COVID-19 on the job are eligible for workers’ compensation benefits regardless of their immigration status. This includes workers engaged in front-line occupations such as health care, emergency services, food production, sales, and delivery, among others.  “This unprecedented pandemic has sparked questions and concerns among essential workers in the immigrant community who are showing up for work every day, bringing us vital goods and services,” Commissioner Lara said. “Hard-working Californians who are exposed to COVID-19 are entitled to workers’ compensation benefits if they fall ill, regardless of their immigration status.”  Commissioner Lara issued a Notice to remind insurance companies, agents, and employers that California law requires the payment of workers’ compensation benefits to injured workers regardless of their immigration status. His action supports Governor Gavin Newsom’s March 12 executive order stating that workers may be eligible for workers’ compensation benefits if they were exposed to or contracted COVID-19 on the job. In 2015, SB 623, authored by Commissioner Lara when he was a member of the California State Senate, expressly expanded protections for undocumented workers in the event they are injured on the job, to include compensation pursuant to the Uninsured Employers Benefits Trust Fund or the Subsequent Injury Fund, in addition to standard workers’ compensation benefits. "During this pandemic, essential workers face great risk to their health every time they clock in," said California Labor Federation Executive Secretary -Treasurer Art Pulaski. "If they are injured or get sick at work, they should know they can rely on workers’ compensation to provide the health care and benefits they need, regardless of immigration status. We commend Commissioner Lara for standing up for the workers who are among the most vulnerable in this time of crisis."  According to the notice, “Workers’ compensation injuries caused by COVID-19 that arise out of and occur in the course of employment are compensable to the same extent as any other compensable injury or disease. This Notice is a reminder that such claims may not be denied on the basis of the injured worker’s immigration status.” Workers who are not sure whether their employer had insurance on the date they were injured should call the Workers’ Compensation Insurance Rating Bureau at 1-888-229-2472 or visit their website at caworkcompcoverage.com.
• With restaurants and businesses expanding deliveries to comply with “shelter in place” rules, Insurance Commissioner Ricardo Lara urged insurance companies to extend auto insurance coverage for drivers who are using their personal vehicles to fulfill deliveries for California’s essential businesses during the COVID-19 pandemic. Because personal automobile policies do not typically provide coverage for vehicles used for commercial purposes and some drivers may not be covered under their employer’s commercial automobile policy issued to a California essential business, temporary delivery drivers may be inadvertently uninsured as they carry out their job duties. Today’s action ensures that businesses can continue to provide essential goods to residents and families at their homes and that delivery workers are protected at all times so that they may continue their work critical to public health and safety. “This is an unprecedented time so we must take unprecedented action to help Californians comply with public health ‘shelter in place’ orders,” said Insurance Commissioner Ricardo Lara. “Delivery drivers are performing essential services to help our seniors and families, and this action will protect them while on the roads.” Under this notice, insurance companies should not deny a claim under a personal auto policy solely because the driver was providing delivery service on behalf of a California essential business impacted by the COVID-19 pandemic. The Notice applies to 16 categories of “essential critical infrastructure workers” identified by the U.S. Department of Homeland Security on March 19, including those who deliver food, medication, and other essential goods.  The Department is also requesting insurance companies to extend delivery coverage for motorcycle and bicycle riders and allow essential businesses to retroactively add drivers to their commercial automobile policies beginning on March 19, 2020. “We appreciate Commissioner Lara’s attempt to help our industry in these historically challenging times," said Matt Sutton, Senior Vice President for Government Affairs and Public Policy at the California Restaurant Association. "Any and all help is welcome.”
• In light of the COVID-19 public health emergency and the Executive Orders issued by Governor Newsom, the Division of Workers’ Compensation (DWC) has posted an order adjusting the Physician Services / Non-Physician Practitioner Services Fee Schedule to adopt changes that will encourage expanded use of telehealth during the COVID-19 public health emergency. The changes are based upon Medicare’s public health emergency Physician Fee Schedule interim revisions, which adopt an expanded list of services that may be provided through telehealth, and which modify the “Place of Service” code for telehealth. Adoption of the Medicare telehealth code list will encourage the expanded use of telehealth by identifying services which may be provided through telehealth where medically appropriate and identified by modifier 95. The adoption of the Place of Service code revision will encourage use of telehealth by equalizing the payment for a service whether provided in a physician’s office or through telehealth using real time audio and video telecommunications. DWC encourages the provision of medical treatment by telehealth in lieu of in-person visits whenever medically appropriate, in order to protect patients and health care providers and to support the crucial effort to slow the community spread of the COVID-19 virus. Increased use of telehealth for workers’ compensation treatment is in alignment with the goals of the Governor’s “stay at home” Executive Order, and Executive Order regarding telehealth services. The DWC order and revised regulation text, effective for services rendered on or after April 15, 2020, can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#7.
• On April 6, 2020, the Workers’ Compensation Appeals Board issued an en banc order allowing limited filing of specified documents via email directly to the Appeals Board and to the Division of Workers’ Compensation’s district offices. To assist the workers’ compensation community the Appeals Board and the Division offer the following guidance on emailing documents to the appeals board and the district offices. Documents relating to any matter currently pending before the Appeals Board, including but not limited to cases in which a petition for reconsideration has been granted for further study may be filed by emailing to WCABEmergencyBox@dir.ca.gov. Documents sent by email should include the information required for pleadings by WCAB Rule 10520 and an email address for the sending party. (Cal. Code Regs., title 8, former § 10498, now § 10520 (eff. Jan. 1, 2020).) Documents sent by email should otherwise comply with the WCAB’s Rules. Do not email petitions for reconsideration, removal, or disqualification and answers to the Appeals Board’s emergency email box. Those documents should still be filed electronically in EAMS or JET File or by email with the DWC district office having venue pursuant to WCAB Rule 10940(a). (See Cal. Code Regs., title 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)  Email addresses for the 24 district offices may be viewed at https://www.dir.ca.gov/dwc/dir2.htm.
• The Division of Workers’ Compensation (DWC) issued its Notice of Emergency Regulatory Action to address the ongoing need for medical-legal evaluations and to prevent a backlog of medical-legal evaluations resulting from stay-at-home orders throughout the state. These emergency regulations will help injured workers and employers continue to move their workers’ compensation claims towards a resolution and avoid additional and undue delay. The regulations concern how medical-legal evaluations and payment for those evaluations can occur during this emergency period. Also provided in the regulations are alternative forms of service for required forms related to medical-legal evaluations and reports.  The emergency regulations will be filed with the state’s Office of Administrative Law (OAL) on May 4, 2020 and can be found on the DWC website. OAL has up to 10 days to consider and approve emergency rules. Upon OAL approval and filing with the Secretary of State, such regulations are effective for 180 days. If during this 180-day period the Division determines the need to readopt the emergency regulations, it may do so for an additional 90 days. For information on the OAL emergency regulatory procedures and to learn how you may comment on these emergency regulations, please visit OAL’s website. A notice will be posted on the DWC website when these emergency regulations become effective.  To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective March 15, 2020. The next update is expected April 15, 2020.
•  The DWC has posted an order adjusting the Physician Services/Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The Administrative Director update order adopting the OMFS adjustments effective for services rendered on or after April 1, 2020, can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#7 . The next update is expected July 2020.
•   The DWC has posted an order adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The order adopts the Medicare April 2020 clinical laboratory update and includes COVID-19 testing codes U0001 and U0002. The order can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#2.
• The DWC has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to the changes in the Medicare payment system as required by Labor Code section 5307.1. The order, which is effective for services on or after January 1, 2020, adopts the Medicare April 2020 DMEPOS Fee Schedule update. The order adopting the adjustment can be found https://www.dir.ca.gov/dwc/OMFS9904.htm#3 .
• The DWC has posted adjustments to the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The changes take effect on April 1, 2020. More information and the adjustments to the hospital outpatient departments and ambulatory surgical centers section of the OMFS can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#6.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) is updating its case management system and is offering interested respondents the opportunity to participate in a Request for Information (RFI) regarding the modernization of DWC’s Electronic Adjudication Management System (EAMS). The objective of this RFI is to:
  • Gather information about EAMS system solutions and to collect information from respondents related to the availability of software and services that can meet the State’s needs.
  • Identify potential system solutions that can meet all of DWC’s business and technical requirements.  
• The Division of Workers’ Compensation (DWC) appreciates the efforts of the workers’ compensation community to provide care for injured workers during the COVID-19 pandemic. Of paramount importance is that everyone follows all guidance from the Governor as well as federal, state and local public health agencies regarding COVID-19. After adherence to all public health guidance and orders, DWC encourages all parties to consider creative solutions appropriate to providing care to injured workers. The increased use of telehealth services for medical treatment may be appropriate. The California Business and Professions Code section 2290.5 requires that “…the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented.” DWC is currently evaluating the feasibility of telemedicine for QME evaluations and will continue to do so. The use of telemedicine for a QME evaluation may be appropriate where all parties agree that there is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), and all parties to the action, including the physician, agree to a telemedicine evaluation in order to resolve this dispute. Although DWC is not authorizing any particular course of action, the division recognizes that in this time of medical emergency, creative delivery methods of essential medical treatment and evaluation services may be needed.  DWC realizes that QME appointments may be affected. When cancelling or rescheduling an appointment, please document the reason in the file and inform all parties as soon as possible. Given the current COVID-19 emergency, QMEs that cancel appointments fewer than 6 business days before an appointment may assert that they had good cause to do so. The current state of emergency regarding the COVID-19 pandemic presents serious public health concerns, and parties and evaluators are encouraged to work together to take any action that may be necessary to protect the health of doctors, their staff and injured workers.  Upcoming QME Examination: The QME examination scheduled for April 18, 2020 will be postponed. The exam will be rescheduled, and a new date will be announced. 
• All DWC Offices Open Except for Eureka, with Bakersfield Scheduled to Reopen on March 26. The Division of Workers’ Compensation’s mission to ensure benefits for injured workers is an essential government function. All Division of Workers ’ Compensation (DWC) district offices, with the exception of the Eureka satellite and Bakersfield offices, are open. The Eureka office will remain closed until further notice. The Bakersfield office will be closed on Tuesday, March 24, and Wednesday, March 25, to perform enhanced cleaning and disinfection due to potential COVID-19 exposure. The Bakersfield office will reopen on Thursday, March 26.  To ensure the safety of our employees, DWC will implement procedures in keeping with public health guidance on social distancing. Therefore, DWC will have limited staffing in each district office but will maintain all essential functions. DWC is closely monitoring the situation and will update the public of any changes.  DWC and WCAB announced March 16 that they are limiting court appearances to protect the health and safety of our staff and the community, in accordance with numerous public health orders suggesting that public gatherings be limited. March 23 through April 3: DWC will hear expedited hearings for parties that appear at the district offices. DWC will also hear status conferences, mandatory settlement conferences and priority conferences via CourtCall only. If all parties do not appear via CourtCall the case will be continued, and notice will be given. All other hearings will be continued. No trials or lien conferences will be heard during this time. March 17 through April 3: DWC’s district offices are closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 6. DWC will not accept walk-through documents, walk-in filings, or any in-person requests until the district offices reopen for filing purposes. The Division’s Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefit Trust Fund and Legal Unit are open for essential services only and will have limited staffing during this time. The WCAB Commissioners and staff are working remotely. The Commissioners’ office is closed to the public until further notice. Future updates will be issued through the Division’s website. Please continue to check the website for current status.
• Interrupted Services
  • DWC’s district offices are closed for filing purposes and all filing deadlines are extended to Monday, April 6.
  • No walk-in filings, walk-through documents or in-person requests permitted until further notice
  • WCAB Commissioner’s Office is closed to the public until further notice.
  • DWC’s hearing and conference calendar from March 23 through April 3 is limited to:
    • Expedited hearings for parties that appear at district offices
    • Status conferences, mandatory settlement conferences and priority conferences via CourtCall. If all parties do not appear via CourtCall, the case will be continued, and notice will be given
    • Open for essential services only:
    • DWC Medical Unit
    • Return-to-Work Supplement Program
    • Uninsured Employers Benefit Trust Fund
    • Legal Unit
    • Subsequent Injuries Benefit Trust Fund
• DWC Issues Emergency Measures for Medical-Legal Evaluations during Governor Newsom’s Stay-at-home Order: In line with Governor’s Newsom’s stay-at home order in response to the COVID-19 crisis issued on March 19, the Division of Workers’ Compensation (DWC) encourages primary treating physicians to continue to manage injured workers’ care through telehealth options whenever medically appropriate. Telehealth options include remote visits via videoconferencing, video-calling or similar such technology that allows each party to see each other via a video connection. These are viable alternatives to in-person physical examinations for medical-legal evaluations. DWC urges all parties to work together with the primary treating physician to anticipate and resolve any potential disputes that may result from a request for a medical-legal evaluation by a Qualified Medical Evaluator (QME). During the stay-at-home order (up to May 1, 2020), DWC finds that it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary. DWC strongly recommends that all of the following conditions apply to a telehealth evaluation to promote the health and safety of all parties:
• • • The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home  order.
    • The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
      • An evaluation relating to whether or not the injury is Arising Out of Employment/Course of Employment (AOE/COE),
      • Termination of an injured worker’s indemnity benefit payments, or
      • Work restrictions  
    • There is written agreement of the injured worker, carrier or employer, and the QME.
    • The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
    • The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.
  • DWC encourages all parties to evaluate whether medical-legal evaluations (which involve in-person physical evaluations) should be cancelled or postponed as part of the stay-at-home response to COVID-19. In some instances, a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations should be postponed or canceled, if it requires the injured worker or others to travel and interact with anyone outside of their immediate household.
  • The decision as to when a telehealth visit can be employed must rest on the principles of appropriate and ethical medical practice. An in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed. DWC understands that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation, or for serving a medical-legal report, may be impractical or impossible during this public health crisis. During the month of April, DWC encourages parties to agree upon reasonable allowances and agreements. The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence is determined in accordance with applicable laws and is not altered by these emergency measures. At the end of April, DWC will reevaluate whether additional emergency responses related to QME telehealth evaluations are necessary due to the COVID-19 crisis.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective February 15, 2020. The next update is expected March 15, 2020.
• The Division of Workers’ Compensation (DWC) has posted adjustments to the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The changes take effect on March 1, 2020. More information and the adjustments to the hospital outpatient departments and ambulatory surgical centers section of the OMFS can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#6.
• The DWC Posts Adjustments to Official Medical Fee Schedule for Physician Services/Non-Physician Practitioner Services to Implement Second Medicare Correction to the Annual Update. On January 22, 2020, the Centers for Medicare and Medicaid Services (CMS) adopted retroactive corrections to the Geographic Practice Cost Index data. DWC adopted the corrections by an order dated January 27, 2020.  On January 31, 2020, CMS adopted a second retroactive correction to the annual Medicare Physician Fee Schedule update, effective January 1, 2020. The second correction makes changes to the Outpatient Prospective Payment System cap used in determining fees under the Physician Fee Schedule. DWC has posted an order adopting the Medicare corrections to the cap. The Administrative Director update order adopting the adjustments effective January 1, 2020, can be found at the DWC website’s https://www.dir.ca.gov/dwc/OMFS9904.htm#7.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) has launched an electronic filing pilot program for physicians to submit the Form 5021, Doctor’s First Report of Occupational Illness or Injury (DFR), online. The pilot is available on a voluntary basis for physicians who agree to send their reports to DWC electronically rather than filing paper forms. Large volume filers such as hospitals are also invited to participate through electronic data interchange (EDI) submission. Physicians who treat an injured worker are required by the Labor Code to file, within five days after initial examination, a complete report of occupational injury or occupational illness with the employer's insurer or with the employer if self-insured. The forms are currently only available on paper. As this is a pilot, physicians are not required to participate in the electronic filing program. DWC plans to draft regulations to require electronic reporting in the future with the goal of phasing out paper filing. DWC has posted on https://www.dir.ca.gov/dwc/Electronic-Reporting-System-for-DFR/Index.htm more information on the pilot program. To participate in EDI filing, contact dfr_edi@dir.ca.gov.

LEGISLATIVE ACTIONS:

• Assembly Bill 547 Existing law establishes the Division of Labor Standards Enforcement (division) within the Department of Industrial Relations. The division is headed by the Labor Commissioner and the department is headed by the Director of Industrial Relations. Existing law establishes certain protections for janitorial workers, including a requirement that the division establish a biennial in-person sexual violence and harassment prevention training requirement for certain employees and employers. Existing law requires employers of at least one employee and one or more covered workers, as defined, who provide janitorial services, as specified, to register with the commissioner annually and prohibits them from conducting business without a registration. Existing law requires an application for registration to be in a form prescribed by the commissioner and subscribed and sworn to by the employer, as specified. This bill would require the division to issue 2 types of registrations, one for registrants without employees and one for registrants with employees, and prohibit the division from approving a registration, as described above, if the employer does not include, among other things, in their written application the name of any subcontractor or franchise servicing contracts affiliated with branch locations and the name of any subcontractor on franchise servicing the contracts. Existing law requires the director to convene an advisory committee to assist in development of training standards. This bill would require the director to convene a training advisory committee to assist in compiling a list of qualified organizations and peer trainers that employers would be required to use to provide the biennial training described above. The bill would require the department to make the list of qualified training organizations available on its internet website. The bill would require those qualified training organizations to provide specified information to the division for inclusion on its internet website by January 1, 2021. This bill would require the division to require employers subject to the training requirements to use the training content created by the Labor Occupational Health Program. This bill would require employers to use a qualified organization from the list of qualified organizations developed and maintained by the director to provide the required training and would require qualified organizations to provide peer trainers for employers to use in the training, as specified. The bill would require the employer to pay the qualified organization a specified amount per participant, unless an alternative payment has been agreed to pursuant to a collective bargaining agreement. The bill would require the qualified organization to ensure that the peer trainer is paid at least twice the state minimum wage per hour. This bill would require an employer to document and certify compliance with the training to non-supervisors and payment of the qualified organization, as specified, on a form prescribed by, and available to, the division. The bill would require an employer to submit a specified report of training completion to the director. By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program. The bill would require the training advisory committee to approve and recommend the qualified organizations to the director. The bill would authorize a qualified organization to work with a training partner, as defined, to provide the required training. The bill would prescribe certain minimum qualifications for qualified organizations and peer trainers. The bill would require the director to develop, as prescribed a list of qualified organizations and qualified peer trainers, as recommended by the training advisory committee. Existing law provides for specified civil penalties for an employer subject to these provisions who fails to register with the department. This bill would also subject an employer who makes a material misrepresentation on their application to these civil penalties. The bill would make conforming changes. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.  Effective Date January 1, 2020.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective January 15, 2020. The next update is expected February 15, 2020.
• DWC has issued an order adopting the GPCI corrections for the workers’ compensation physician fee schedule, effective for services rendered on or after January 1, 2020. The Administrative Director update order adopting the adjustments can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#7. The next update is expected April 2020.
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the pathology and clinical laboratory section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system, as required by Labor Code section 5307.1. The pathology and clinical laboratory fee schedule update order adopts the following Medicare change: CY 2020 Q1 Release: Revised for 2020 (20CLABQ1). The order adopting the 2020 Pathology and Clinical Laboratory Fee Schedule Annual Update is effective for services rendered on or after February 1, 2020 and can be found https://www.dir.ca.gov/dwc/OMFS9904.htm#2.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) is announcing the decrease of the mileage rate for medical and medical-legal travel expenses by one half of a cent to $0.575 per mile effective January 1, 2020. This rate must be paid for travel on or after January 1, 2020 regardless of the date of injury. Labor Code Section 4600, in conjunction with Government Code Section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS). IRS bulletin Number IR-2019-215 dated December 31, 2019 announced the rate decrease. The updated mileage reimbursement form is posted on DWC’s website.
• The Workers’ Compensation Appeals Board (WCAB) has adopted its final rules of practice and procedure. The rules were filed with the Secretary of State on December 17, published on December 31 and went into effect on January 1. The purpose of this rulemaking is to organize articles to reflect the order of events in a case, eliminate duplicative rules, break up complex rules, simplify the language for clarity and create some room between rules, so that additional rules can be added in the future without decimals. In general, the substance of the vast majority of rules has not been altered in this reorganization. Some substantive changes were made to reflect current practices. The newly adopted rules and their related Final Statement of Reasons are posted at https://www.dir.ca.gov/wcab/WCABProposedRegulations/Rulemaking-August-2019/Rulemaking-August-2019.htm .  The rules become effective January 1, 2020.
• DEPARTMENT OF INDUSTRIAL RELATIONS; State of California Office of Administrative Law. In re: Department of Industrial Relations Regulatory Action: Title 8 California Code of Regulations Adopt section: 15203.11 Amend sections: 2, 15251, and 15430 DECISION OF DISAPPROVAL OF REGULATORY ACTION Government Code Section 11349.3 OAL Matter Number: 2019−1105−01 OAL Matter Type: Regular (S). SUMMARY OF REGULATORY ACTION This rulemaking action would have established requirements for reporting information needed to evaluate the administrative costs, expenditures, solvency, and performance of public self−insured employer workers’ compensation programs. DECISION on November 5, 2019, the Department of Industrial Relations, Office of Self−Insurance Plans (OSIP) submitted the above−referenced regulatory action to the Office of Administrative Law (OAL) for review. On December 20, 2019, OAL notified OSIP of the disapproval of this regulatory action. The reasons for the disapproval were failure to comply with the “clarity” standard of Government Code section 11349.1 and failure to follow all required procedures under the California Administrative Procedure Act (APA). This Decision of Disapproval of Regulatory Action explains the reasons for OAL’s action. CONCLUSION: For the reasons set forth above, OAL has disapproved this regulatory action. Pursuant to Government Code section 11349.4, subdivision (a), OSIP may resubmit this rulemaking action within 120 days of its receipt of this Decision of Disapproval. A copy of this disapproval decision will be e−mailed to the OSIP contact person on the date this decision is signed below. Any changes made to the regulation text to address the clarity issues discussed above must be made available for at least 15 days for public comment pursuant to Government Code section 11346.8 and section 44 of title 1 of the CCR. OSIP must resolve all other issues raised in this Decision of Disapproval before resubmitting to OAL.
• The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination on April 18. QMEs are independent physicians certified by the DWC Medical Unit to conduct medical evaluations of injured workers. Applications for the QME exam may be downloaded from the DWC website.  Applicants may also contact the Medical Unit at (510) 286-3700 to request an application via U.S. mail, email or fax. The deadline for filing the exam applications is March 5, 2020. For more information, please contact the Medical Unit at (510) 286-3700 or by email at QMETest@dir.ca.gov.

FEE SCHEDULE NEWS:

•  The DWC has published a new file for Medi-Cal rates effective December 15, 2019. There were no changes to the database. The next update is expected January 15, 2020. 
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Physician Services/Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to relevant 2020 changes in the Medicare payment system as required by Labor Code section 5307.1. The Administrative Director update order adopting the OMFS adjustments effective for services rendered on or after January 1, 2020, can be found at https://www.dir.ca.gov/dwc/OMFS9904.htm#7 . The next update is expected April 2020. 
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Ambulance Services section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The update order is effective for services rendered on or after January 1, 2020. The next update is expected January 2021. 
• The Division of Workers’ Compensation (DWC) has posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule to conform to the 2020 changes in the Medicare payment system as required by Labor Code section 5307.1. The order, which is effective for services on or after January 1, 2020, adopts the Medicare January 2020 annual DMEPOS Fee Schedule update. The order adopting the adjustment can be found https://www.dir.ca.gov/dwc/OMFS9904.htm#3 .

REGULATORY ACTIVITY:

• Published a notice regarding Fiscal Year 2019/2020 Assessments for Workers' Compensation Administration Revolving Fund, Uninsured Employers Benefits Trust Fund, Subsequent Injuries Benefits Trust Fund, Occupational Safety and Health Fund, Labor Enforcement and Compliance Fund and Workers' Compensation Fraud Account. To view the notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.
• The Division of Workers’ Compensation (DWC) has issued an order updating the Medical Treatment Utilization Schedule (MTUS) Drug List effective January 15, 2020 pursuant to Labor Code section 5307.29. The Administrative Director’s update order adopts changes to the MTUS Drug List, based on the American College of Occupational and Environmental Medicine (ACOEM) Practice Guidelines, including the following: New drug recommendations addressed in the Hip and Groin Disorder Guideline. The updated MTUS Drug List v.6 and the order can be accessed at https://www.dir.ca.gov/dwc/MTUS/MTUS-Formulary-Orders.html . To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm .

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective November 15, 2019. The next update is expected December 15, 2019.

REGULATORY ACTIVITY:

• The Division of Workers’ Compensation (DWC) held a meeting of the Pharmacy and Therapeutics (P&T) Committee on Wednesday, November 20 from 12:30 to 2:30 p.m. in the Elihu M. Harris State Building, conference room #1 on the second floor, 1515 Clay Street in Oakland. The meeting was open to the public.  The Pharmacy and Therapeutics Committee was established by Assembly Bill No. 1124 (2015) as an advisory body that will consult with the DWC Administrative Director on updates to the Medical Treatment Utilization Schedule (MTUS) drug formulary. The meeting agenda and related materials are posted on the DWC P&T Committee web page https://www.dir.ca.gov/dwc/MTUS/MTUS-Pharmacy-and-Therapeutics-Committee.html. 
• Claims administrators are reminded that the annual report of inventory (ARI) must be submitted in early 2020 for claims reported in calendar year 2019. The California Code of Regulations, title 8, Section 10104 requires claims administrators to file, by April 1 of each year, an annual report of inventory (ARI) with the DWC administrative director indicating the number of claims reported at each adjusting location for the preceding calendar year. Even if no claims were reported in the prior year, the report must be completed and submitted to the DWC Audit Unit. Each adjusting location is required to submit an ARI unless its requirement has been waived by the DWC administrative director. When ARI requirements are waived, claims administrators must file an annual report of adjusting locations. This report is to be filed annually on April 1 of each calendar year for the adjusting location operations as of December 31 of the prior year.  Claims administrators are required to report any change in the information reported in the ARI or annual report of adjusting location within 45 days of the effective date of the change. Penalties of up to $500 per location for failure to timely file this Report of Inventory may be assessed under Title 8, California Code of Regulations, Section 10111.1(b) (11) or 10111.2(b) (26).  The form for 2020 can be found on https://www.dir.ca.gov/dwc/audit.html.  Questions about submission of the ARI or the annual report of adjusting locations may be directed to the Audit Unit: State of California Department of Industrial Relations Division of Workers’ Compensation – Audit Unit 160 Promenade Circle, Suite #340   Sacramento, CA 95834-2962. Email: DWCAuditUnit@dir.ca.gov, FAX 928.3183 or phone 916.928.3180.
• The Department of Industrial Relations (DIR) and its Division of Workers’ Compensation (DWC) have posted a progress report on the Department’s Independent Medical Review (IMR) program. IMR is the medical dispute resolution process for the state’s workers’ compensation system that uses medical expertise to obtain consistent, evidence-based decisions.  The report describes IMR program activity in 2018, the sixth year since the program was implemented. The Independent Medical Review Organization administering the program, Maximus Federal Services, Inc., received over 250,000 IMR applications, and issued almost 185,000 Final Determination Letters, each containing one or more medical necessity dispute.  To view this notice and report, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm. 
• The Division of Workers’ Compensation (DWC) is providing an update on the development of amendments to the Medical-Legal Fee Schedule. The division is close to finalizing the fee schedule and intends to begin the regular rulemaking process by the end of the year and will hold a public hearing in early 2020. The development of the draft amendments included comprehensive review by academic stakeholders as well as those who work in and utilize California’s workers’ compensation system. The division posted proposed amendments in May 2018 and after soliciting proposals and obtaining feedback from the industry, posted a revised proposal last August incorporating input from stakeholders including medical providers, public and private employers, attorneys, insurance carriers, advocates and policymakers. The division continues to meet with stakeholders as it refines its proposed amendments and fixed fee schedule to improve the quality of medical reports, eliminate complexity factors and increase fees for medical-legal testimony. Updates on the proposed regulation including information on the public hearing will be posted on https://www.dir.ca.gov/dwc/rulemaking/dwc_rulemaking_proposed.html in the future.
• The Division of Workers’ Compensation’s (DWC) Audit and Enforcement Unit conducts a profile audit review (PAR) for all adjusting locations of California workers’ compensation claims at least once every five years, per the requirements of Labor Code sections 129 and 129.5.  Performance of the adjusting locations is measured in five areas of claims administration:
  • The payment of accrued and undisputed indemnity
  • The late first payment of temporary disability / first notice of salary continuation
  • The late first payment of permanent disability and death benefits
  • The late subsequent indemnity payments
  • The provision of notices with Qualified Medical Evaluator/Agreed Medical Evaluator advice. 

DWC annually establishes profile audit review and full compliance audit (FCA) standards in accordance with Labor Code sections 129(b)(1) and (2) and California Code of Regulations, title 8 (8 C.C.R.), section 10107.1. The 2020 standards are based on the audit results of calendar years 2016 through 2018. The PAR performance standard for audits conducted in 2020 is 1.32020. Audit subjects with PAR performance ratings of 1.32020 or lower will be required to pay any unpaid compensation, but no administrative penalties will be assessed. If an audit subject’s PAR performance rating is 1.32021 or higher, the audit will expand to a FCA, and an additional sample of indemnity claims will be audited. The FCA performance standard for audits conducted in 2020 is 1.60183. Audit subjects with an FCA performance rating of 1.60183 or less will be required to pay any unpaid compensation and administrative penalties will be assessed for all violations involving unpaid and late paid compensation. If an audit subject’s full compliance audit performance rating is 1.60184 or higher, an additional sample of denied claims as well as the expanded sample of indemnity claims will be audited. Penalties will be assessed for all violations as appropriate pursuant to 8 C.C.R. sections 10111 through 10111.2. The Severity Rate standard for 2020 is $108.11. More information on the performance standards that will be in use for the profile audit reviews and full compliance audits during calendar year 2020 will be posted on the DWC Audit and Enforcement Unit web page.  To view this notice, go to https://www.dir.ca.gov/dwc/dwc_home_page.htm.  For additional information regarding the audit, go to https://www.dir.ca.gov/dwc/audit.html.

FEE SCHEDULE NEWS:

• The DWC has published a new file for Medi-Cal rates effective October 15, 2019. No drug information was changed in this file. The next update is expected November 15, 2019.
• The DWC has posted another adjustment to the inpatient hospital section of the Official Medical Fee Schedule (OMFS) to conform to changes in the 2020 Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes is November 1, 2019.
• The (DWC) has posted an order adjusting the Pathology and Clinical Laboratory section of the Official Medical Fee Schedule to conform to the fourth quarter 2019 changes in the Medicare payment system as required by Labor Code section 5307.1 with an effective date of October 1, 2019. The next update is expected January 1, 2020.
• The (DWC) has posted an order adjusting the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule to conform to the fourth quarter 2019 changes in the Medicare payment system as required by Labor Code section 5307.1 with an effective date of October 1, 2019. The next update is expected January 1, 2020.
• The (DWC) has posted an order adjusting the Official Medical Fee Schedule (OMFS) to conform to the fourth quarter 2019 changes in the Medicare payment system as required by Labor Code section 5307.1 with an effective date of October 1, 2019. The next update is expected January 1, 2020.

LEGISLATIVE ACTIONS:

• Assembly Bill 5

Existing law, as established in the case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex), creates a presumption that a worker who performs services for a hirer is an employee for purposes of claims for wages and benefits arising under wage orders issued by the Industrial Welfare Commission.  Existing law requires a 3-part test, commonly known as the “ABC” test, to establish that a worker is an independent contractor for those purposes.  Existing law, for purposes of unemployment insurance provisions, requires employers to make contributions with respect to unemployment insurance and disability insurance from the wages paid to their employees.  Existing law defines “employee” for those purposes to include, among other individuals, any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. This bill would state the intent of the Legislature to codify the decision in the Dynamex case and clarify its application. The bill would provide that for purposes of the provisions of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business. The bill, notwithstanding this provision, would provide that any statutory exception from employment status or any extension of employer status or liability remains in effect, and that if a court rules that the 3-part test cannot be applied, then the determination of employee or independent contractor status shall be governed by the test adopted in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). The bill would exempt specified occupations from the application of Dynamex and would instead provide that these occupations are governed by Borello. These exempt occupations would include, among others, licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry. The bill would also require the Employment Development Department, on or before March 1, 2021, and each March 1 thereafter, to issue an annual report to the Legislature on the use of unemployment insurance in the commercial fishing industry. The bill would make the exemption for commercial fishermen applicable only until January 1, 2023 and the exemption for licensed manicurists applicable only until January 1, 2022. The bill would authorize an action for injunctive relief to prevent employee misclassification to be brought by the Attorney General and specified local prosecuting agencies. This bill would also redefine the definition of “employee” described above, for purposes of unemployment insurance provisions, to include an individual providing labor or services for remuneration who has the status of an employee rather than an independent contractor, unless the hiring entity demonstrates that the individual meets all of specified conditions, including that the individual performs work that is outside the usual course of the hiring entity’s business. Because this bill would increase the categories of individuals eligible to receive benefits from, and thus would result in additional moneys being deposited into, the Unemployment Fund, a continuously appropriated fund, the bill would make an appropriation. The bill would state that addition of the provision to the Labor Code does not constitute a change in, but is declaratory of, existing law with regard to violations of the Labor Code relating to wage orders of the Industrial Welfare Commission. The bill would also state that specified Labor Code provisions of the bill apply retroactively to existing claims and actions to the maximum extent permitted by law while other provisions apply to work performed on or after January 1, 2020. The bill would additionally provide that the bill’s provisions do not permit an employer to reclassify an individual who was an employee on January 1, 2019, to an independent contractor due to the bill’s enactment. Existing provisions of the Labor Code make it a crime for an employer to violate specified provisions of law with regard to an employee. The Unemployment Insurance Code also makes it a crime to violate specified provisions of law with regard to benefits and payments. By expanding the definition of an employee for purposes of these provisions, the bill would expand the definition of a crime, thereby imposing a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

• Assembly Bill 346

The enacted legislation adds police officers employed by a school district, county office of education, or community college district to the list of public employees entitled to a leave of absence without loss of salary, in lieu of temporary disability payments, while disabled by injury or illness arising out of and in the course of employment.

• Assembly Bill 528

Existing law classifies certain controlled substances into Schedules I to V, inclusive. Existing law requires the Department of Justice to maintain the Controlled Substance Utilization Review and Evaluation System (CURES) for the electronic monitoring of the prescribing and dispensing of Schedule II, Schedule III, and Schedule IV controlled substances by a health care practitioner authorized to prescribe, order, administer, furnish, or dispense a Schedule II, Schedule III, or Schedule IV controlled substance. Existing law requires a dispensing pharmacy, clinic, or other dispenser to report specified information to the department as soon as reasonably possible, but no more than 7 days after a controlled substance is dispensed. The enacted legislation, on and after January 1, 2021, would require a dispensing pharmacy, clinic, or other dispenser to instead report the information required by the CURES database no more than one working day after a controlled substance is released to a patient or a patient’s representative, except as specified. The bill would similarly require the dispensing of a controlled substance included on Schedule V to be reported to the department using the CURES database. The bill makes conforming changes to related provisions. Currently the law requires a health care practitioner authorized to prescribe, order, administer, furnish, or dispense controlled substances included on Schedule II, Schedule III, or Schedule IV, and a pharmacist upon licensure, to submit an application to obtain approval to electronically access information in the CURES database. The enacted legislation, on and after a specified date, would permit a licensed physician and surgeon who does not hold a DEA registration to submit an application to obtain approval to electronically access information in the CURES database.  Currently, the law requires an authorized health care practitioner to consult the CURES database to review a patient’s-controlled substance history before prescribing a Schedule II, Schedule III, or Schedule IV controlled substance to the patient for the first time and at least once every 4 months thereafter if the controlled substance remains part of the treatment of the patient.  The enacted legislation, on and after a specified date, would instead require the authorized health care practitioner to consult the CURES database to review the patient’s-controlled substance history at least once every 6 months after the first time the substance is prescribed and the prescriber renews the prescription, except as specified. The bill would also establish a review and documentation requirement, as set forth, for a health care practitioner who receives the CURES database information from another authorized user, as specified.  The current law requires the Department of Justice and other specified entities to identify necessary procedures to enable licensed health care practitioners and pharmacists with access to the CURES database to delegate their authority to order reports from the CURES database. The enacted legislation instead requires those entities to identify necessary procedures to enable those practitioners with access to the CURES database to delegate their authority to access reports from the CURES database.

• Assembly Bill 1400

The enacted legislation requires the commission, in partnership with the County of Los Angeles and relevant labor organizations, on or before January 1, 2021, to submit a study to the Legislature, the Occupational Safety and Health Standards Board, and the Los Angeles County Board of Supervisors on the risk of exposure to carcinogenic materials and incidence of occupational cancer in mechanics who repair and clean firefighting vehicles.