FEE SCHEDULE NEWS:

• The Department has adopted and released a new Medical Fee Schedule for Physicians with an effective date of July 1, 2020.

REGULATORY ACTIVITY:

• As required by KRS 342.035 and prescribed by 803 KAR 25:089, the Department has completed the process of reviewing and updating the Workers’ Compensation Medical Fee Schedule for Physicians. The new schedule features updated coding (based on CPT, HCPCS 2020), ground rules, and procedure description updates and revised reimbursement values.   Currently, reimbursement to medical providers treating injured workers is prescribed by the 2018 Workers’ Compensation Schedule of Fees for Physicians. The 2020 Workers’ Compensation Schedule of Fees for Physicians will be applied to all medical bills incurred for services rendered on or after July 1, 2020. The 2020 Schedule of Fees for Physicians will completely replace the 2018 fee schedule.   The 2020 Workers’ Compensation Schedule of Fees for Physicians may be purchased in the format of a bound book/CD combination for $120.00. Or, you may purchase the CD individually for $60.00. Shipping fees are $10.00. A portion of the amount collected from the sale of each book and CD ordered will be sent to the American Medical Association for the CPT copyrights and the American Dental Association for CDT copyrights.   You must fill out the order form and mail with a check or money order. Please see the order form for details. Also, if you have questions please contact Pam Knight at 502-782- 4449 or Pamela.knight@ky.gov.  To view this memo, go to  https://labor.ky.gov/comp/Pages/Medical-Services.aspx.
• As of March 12, 2020, the Department of Workers’ Claims (DWC) cancelled all in-person benefit review conferences and formal hearings in response to the COVID-19 state of emergency in the Commonwealth of Kentucky.  Initially, the cancellation was to run only through April 20, but was subsequently extended indefinitely. To promptly address pending claims with cancelled hearings, and to prevent a further backlog of hearings, the DWC initiated the temporary use of videoconference technology (Zoom platform) for conducting virtual formal hearings.  To date, participation in virtual proceedings has been voluntary, but reports from stakeholders on the use and acceptance of Zoom have been overwhelmingly positive. Because of issues presented with ensuring a safe return to hearing sites, and because of the initial success of videoconference proceedings, the DWC does not anticipate a return to regular in-person dockets in the near future. Thus, it is the policy of the DWC that participation in virtual proceedings shall be mandatory, absent extraordinary circumstances. Upon a party’s objection to participation in a videoconference hearing, the assigned administrative law judge shall determine whether, under the circumstances presented, the claim is appropriate for virtual proceedings.
• Published in the July Edition of the State Register notice of adoption of pharmacy formulary rule.  To view the notice, go to https://legislature.ky.gov/Law/kar/Pages/Registers.aspx.
• Commissioner Robert L. Swisher has issued Administrative Order 2020-002 suspending the effective date of medical treatment guidelines adopted in 803 KAR 25:260 until January 1, 2021. To view the order, go to https://labor.ky.gov/comp/Pages/default.aspx.
• LMS filers are reminded that 803 KAR 25:010, Section 5 (2) prohibits filing of notices of deposition, notices of physical examination, and requests for and responses to requests for production of documents.  The regulation further provides that those items and “exchange of reports or records shall be served by email upon the parties…” Section 17 (5) of the regulation provides that discovery requests and responses to the requests “shall not be submitted into the record.”  These items are not to be filed and served via LMS.  PLEADINGS FOR WHICH A SPECIFIC DOCUMENT TYPE EXISTS MAY NOT BE FILED BY USING THE “NOTICE OF…” DOCUMENT TYPE: When filing pleadings in LMS, the submitting party must file the pleading using the specific document type designated for the document, if one exists.  Use of the generic “Notice of Filing of ___________” document type is improper for most common pleadings, such as filing medical reports.  The “Notice of Filing” document type should never be used to file a motion nor any other pleading for which a ruling or action by an ALJ or Board member is sought.  “Notice of Filing” document types do not feed into a work queue and do not prompt any action to be taken. MOTIONS FOR WHICH A SPECIFIC DOCUMENT TYPE EXISTS MUST BE FILED USING THAT DOCUMENT TYPE: When filing motions in LMS, the submitting party must file the motion using the specific motion document type applicable.  Parties should refrain from using the “All Other Motions” document type unless a specific document type does not exist for the filing.  Parties should never file a motion to reopen using the “All Other Motions” type because the motion will not be routed to the Frankfort motion docket for consideration and ruling.

REGULATORY ACTIVITY:

• Published a memorandum regarding the extension of cancellation of in-person proceedings. On March 6, 2020, Governor Beshear entered Executive Order 2020-215 and declared a state of emergency in response to the Coronavirus (COVID-19) emergency in the Commonwealth.  On March 13, 2020, in order to further protect the health and safety of Department of Workers’ Claims (“DWC”) staff, Administrative Law Judges, court reporters, attorneys, and parties, the DWC cancelled all in-person benefit review conferences and formal hearings through April 20, 2020. The cancellation of those proceedings was subsequently extended to May 17, 2020. In light of the continuing state of emergency, all in-person benefit review conferences and hearings are hereby cancelled until further notice. Administrative Law Judges shall use telephonic or videoconference technology for necessary proceedings. The DWC will issue such further directives as may be appropriate. To view the memorandum, go to https://labor.ky.gov/comp/Pages/default.aspx.
• Issued a revised COVID-19 - Codes memo.  The memo adds an additional code that can be billed for testing and the amount of reimbursement amount for that code.  Providers may use HCPCS code U0001, U0002, U0003, as appropriate, when submitting claims for Covid-19 testing.  Any Covid-19 test administered in 2020 is eligible for payment. These codes and reimbursement rates will also be located in the 2020 edition of the Schedule of Fees, effective on July 1. 2020.  This edition will remain effective until July 1, 2022. Reimbursements for these codes are: U0001 $44.90; U0002 $64.16 and U0003 $125.00.

LEGISLATIVE ACTIONS:

• House Bill 186 The enacted legislation amends the statute to exclude direct sellers from the definition of employee in regard to payment of wages. Exempt for having to provide coverage for workers’ compensation insurance. The legislation also excludes direct sellers from “covered employment” in regard to unemployment insurance.  Effective Date July 15, 2020.
• Senate Bill 263 The enacted legislation amends the statute to set forth a process to refund excess assessments to coal mining employers.  Effective Date July 15, 2020.

REGULATORY ACTIVITY:

• As of March 12, 2020, the Department of Workers’ Claims (DWC) cancelled all in-person benefit review conferences and formal hearings in response to the Coronavirus emergency in the Commonwealth of Kentucky. Initially (optimistically), the cancellation was to run only through April 20, but that has now been extended through May 17, 2020. The prohibition against in-person proceedings required the cancellation of formal hearings on the March docket; and will impact benefit review conferences set for April and May, and the ability to set hearings from those dockets, and perhaps beyond.   Issued a memorandum regarding videoconference proceedings. The memorandum is dated April 9, 2020.  To promptly  address the claims with cancelled hearings, and to prevent a backlog of claims presently unable to be scheduled for hearing, the DWC is temporarily permitting videoconference proceedings and is working with the Commonwealth Office of Technology to determine and implement secure methods for conducting those proceedings. Once an ALJ has videoconference capacity, the DWC will make an announcement to that effect. At that point, counsel wishing to participate in videoconference proceedings for a hearing that has been cancelled should contact the assigned ALJ for scheduling and instruction regarding the videoconference process. Going forward, the scheduling of videoconference hearings will be handled at the benefit review conference.  The DWC continues to examine and establish procedures for videoconference proceedings to make them as secure and productive as possible. Technical issues will be addressed as well, such as the process by which exhibits are introduced at hearings and placed in the record. Challenges notwithstanding, the DWC remains committed to developing a system that will best serve its stakeholders, not just under the present circumstances, but into the future as well. As always, the DWC invites input and suggestion from all. To view this memorandum, go to https://labor.ky.gov/comp/Pages/default.aspx.
• The Department of Workers' Compensation issued administrative order 2020-001 regarding electronic signatures and notarization. To view the administrative order, go to https://labor.ky.gov/comp/Pages/default.aspx.
• Issued an Executive order 2020-277 to advise the reader of the current position of the Department of Workers’ Claims (the “Department”) on the specified issue on COVID-19. To view the memo, go to https://labor.ky.gov/comp/Pages/default.aspx.
• Issued a memorandum on April 16, 2020 regarding video conferencing. The Department of Workers’ claims is pleased to announce that all administrative law judges now have the capacity to conduct videoconference proceedings through the Zoom platform. Parties wishing to schedule a videoconference proceeding should contact the assigned ALJ for further details and instruction. Videoconferences will only be scheduled if all parties agree to participate. The Department is committed to promoting videoconference proceedings in light of the on-going prohibition of in-person proceedings and in order to facilitate the timely resolution of claims. For additional information, please contact Chief Administrative Law Judge Douglas W. Gott at douglas.gott@ky.gov or Commissioner Robert L. Swisher at robert.swisher@ky.gov.  To view the announcements, go to https://labor.ky.gov/comp/Pages/default.aspx.

FEE SCHEDULE NEWS:

• The Kentucky Department of Workers’ Compensation has adopted new Hospital Cost-to-Charge ratios effective April 1, 2020. The next update is expected in April 2021.

REGULATORY ACTIVITY:

• Posted notice regarding a proposed amendment to 803 KAR 025:010 regarding the procedure for adjustment of claims.  To view the notice, go to https://labor.ky.gov/comp/Pages/default.asp.
• Issued bulletin 2020-01 to all insurers, agents or other persons licensed by the Kentucky Department of Insurance regarding the reporting of suspected fraudulent insurance acts.

• The Department has released several notices regarding procedures and guidelines pertaining to COVID-19. To view the notices, go to https://labor.ky.gov/comp/Pages/default.aspx#COVID-19_Issues.

   

REGULATORY ACTIVITY:

• The Workers’ Compensation Nominating Committee is now accepting applications for the position of Workers’ Compensation Board member in the Kentucky Department of Workers’ Claims for a term expiring January 4, 2024. This is a full-time position and appointees shall not hold any other public office or maintain any private practice. Applicants for the position must be a licensed attorney for a minimum of eight (8) years and must have the qualifications required of a Court of Appeals Judge, except for residence in a district, and shall receive the same salary and shall be subject to the same standards of conduct.
• The Department of Workers' Claims has filed a Statement of Consideration regarding 803 KAR 25:260.  Comments were received during the comment period and the Administrative Regulation was amended in response to those comments.
• Issued the Quarterly Report for October - December 2019.  To view the report, go to https://labor.ky.gov/comp/Pages/default.aspx.

REGULATORY ACTIVITY:

• A public hearing was to be held in the Oscar Morgan Conference Room at the Department of Workers’ Claims, 657 Chamberlin Avenue, Frankfort, Kentucky, on November 21, 2019, at 10:00 a.m. ET to receive comment regarding the medical treatment guideline regulation,  803 KAR 25:260.
• Posted the discount rate order and tables.  The order and tables are effective for the calendar year 2020.  To view the order, go to https://labor.ky.gov/comp/Pages/default.aspx.
• Pursuant to KRS 342.265(3), upon lump-sum settlement of future periodic payments, the discount rate used in the calculation of the settlement amount shall be fixed by the commissioner. Before January 1   of each year,  the commissioner shall fix the discount rate to be used in the succeeding calendar year based at one-half of  one percent (0.5%)  below the interest rate paid upon ten (10) year United States Treasury Notes as of August 1 of the preceding year.   However, upon lump-sum settlement of future periodic  payments in weekly amounts that are forty dollars ($40) or less, the commissioner shall fix the discount rate used in the succeeding calendar year based at the interest rate paid upon ten (10) year United States Treasury Notes as of August 1   of the preceding year. Accordingly, for the calendar year 2020, the discount rate for lump-sum settlements  of  future  periodic  payments  in  weekly  amounts  that  are  forty  dollars ($40.00) or less, is fixed at one and five-eighths  percent (1.625%). The discount rate for lump-sum settlements of future periodic payments in weekly amounts greater than forty dollars ($40.00) is fixed at one and one-eighth percent (1.125%). To view the order, go to https://labor.ky.gov/comp/Pages/default.aspx.

REGULATORY ACTIVITY:

• The Workers’ Compensation Nominating Committee is now accepting applications for the position of Workers’ Compensation Board member in the Kentucky Department of Workers’ Claims for a term expiring January 4, 2024.  This is a full-time position and appointees shall not hold any other public office or maintain any private practice.  Applicants for the position must be a licensed attorney for a minimum of eight (8) years and must have the qualifications required of a Court of Appeals Judge, except for residence in a district, and shall receive the same salary and shall be subject to the same standards of conduct.
• Kentucky has adopted a new administrative regulation regarding treatment guidelines.  The rule is 805 KAR 025:260 Treatment Guidelines.  To view the rule as published in the state register, go to https://legislature.ky.gov/Law/kar/Pages/Registers.aspx and click on the October 2019 hyperlink.  The treatment guidelines become effective July 1, 2020.
• The Department of Workers’ Claims will be moving to its new location in early November. The exact date of the move is yet to be determined but will be publicized as soon as it is known. The new address of the DWC will be:  Kentucky Labor Cabinet Department of Workers’ Claims Mayo-Underwood Building 500 Mero Street, 3rd Floor Frankfort, Kentucky 40601. The Department's telephone number will remain the same: 502-564-5550.

REGULATORY ACTIVITY:

• The state has published the 2020 Workers' Compensation Benefit Schedule. To view the schedule, go to https://labor.ky.gov/comp/Pages/default.aspx.

REGULATORY ACTIVITY:

• Published an important reminder regarding change of address form filing. Following resolution of a claim in which medical benefits are limited to 780 weeks, the claimant, employer, and medical payment obligor shall notify the Department of Workers’ Claims in writing of any change in the claimant’s physical mailing address or email address. [803 KAR 25:290, Section 2(2) and (3)]  The Change of Address form incorporated in the regulation is available on the Department’s website under the “Forms” tab.  The form must either be mailed to the Department or scanned and emailed to ClaimsProcessing@ky.gov.   Upon receipt, the Department will update the Litigation Management System record.  The most recent address reflected in the record will be the address to which the document advising the claimant of the right to file an application for continuation of medical benefits will be mailed pursuant to KRS 342.020 (3)(b). Changes submitted through the EDI process do not satisfy this filing requirement.  To view the reminder, go to https://labor.ky.gov/comp/Pages/default.aspx.

LEGISLATIVE ACTIONS:

• Senate Bill 107

The enacted legislation amends and reenacts R.S. 40:1374 and enacts R.S. 23:1036.1 and R.S. 33:2581.2 relative to financial security for certain public employees.  It provides for workers’ compensation for certain fire employees and provides for volunteer firefighters.  It provides for certain emergency medical services personnel, certain employees of police department and state police. It provides presumptions for posttraumatic stress injuries and includes those type injuries as compensable injuries.  Effective Date August 1, 2019. 

REGULATORY ACTIVITY:

• The Kentucky Department of Workers’ Claims (DWC) has promulgated an administrative regulation (803 KAR 25:270) adopting the ODG by MCG Health pharmaceutical formulary for use in the treatment of work-related injuries and occupational disease. Drugs listed in the formulary are assigned “Y” or “N” status. Drugs assigned “Y” status may be dispensed without preauthorization and do not require utilization review. Drugs assigned “N” status, compounded drugs, and prescription drugs not listed in the formulary require preauthorization. The formulary is available online at odgbymcg.com/state-formulary.

The formulary will take effect as follows:

• For claims in which the date of injury or last exposure is on or after January 1, 2019, the formulary shall be effective July 1, 2019.
• For claims in which the date of injury or last exposure is prior to January 1, 2019, the formulary shall be effective:
  • July 1, 2019 for a prescription that is not a refill prescription;
  • January 1, 2020 for a refill prescription of a drug initially prescribed prior to July 1, 2019.
• Posted notice of amendment of the Workers' Compensation Pharmaceutical Formulary Regulation.  The Department of Workers’ Claims has amended the pharmaceutical formulary regulation, 803 KAR 25:270, as follows: (1) The last sentence of Section 3, subsection (3) has   been amended to read, “Within two (2) business days of presentation of a prescription drug with an “N” status without articulated sound medical reasoning, the insurance carrier shall notify the medical provider and injured employee that preauthorization is required for the prescribed drug.”  (2) The Section 3, subsection (4) has been amended to delete the language “Except as provided in subsection (1) of this Section, prescription drugs dispensed for outpatient use by any person other than a pharmacist require preauthorization.” Subsequent subsections have been renumbered accordingly. An emergency regulation will remain in place until the ordinary regulation takes effect. Formulary effective dates and all other provisions of the regulation remain unchanged.

A training webinar is available on the DWC’s website under the “Drug Formulary” tab and at http://info.mcg.com/odg-on-demand-webinar-kentucky-formulary.html. Support and training is also available through the ODG Helpdesk at 800-488-5548 or online at odghelp@mcg.com. Questions about the formulary regulation may be directed to John Mann at 502-782-4532 or JohnW.Mann@ky.gov. Additional information is available at https://labor.ky.gov/comp. Department of Workers' Claims is located at 657 Chamberlin Ave, Frankfort, KY 40601. Other questions concerning Department of Workers' Claims can be addressed by calling (502) 564-5550.  To view the notice, go to https://labor.ky.gov/comp/Pages/default.aspx.

• Published the minutes of the June 19, 2019 meeting of the Regulatory Advisory Committee.  To view the minutes, go to https://labor.ky.gov/comp/Pages/default.aspx.