REGULATORY ACTIVITY:

• Registration is now open for the Twenty-Third Annual North Carolina Workers' Compensation Educational Conference, which will take place at the Raleigh Convention Center on Wednesday-Friday, October 10-12, 2018. The conference is presented by the North Carolina Industrial Commission, in association with the International Workers' Compensation Federation.

REGULATORY ACTIVITY:

• The North Carolina Industrial Commission Rules for the Utilization of Opioids, Related Prescriptions, and Pain Management in Workers’ Compensation Claims are effective as of May 1, 2018. To assist employees, employers, carriers, health care providers, pharmacists, attorneys, and other stakeholders in the North Carolina workers’ compensation system in understanding and implementing these Rules, the Industrial Commission has adopted a Companion Guide, effective May 1, 2018. The Companion Guide does not cover every aspect of the Rules, but rather provides guidance on rule provisions or topics as deemed necessary by the Industrial Commission. The Companion Guide also contains some additional guidelines established by the Industrial Commission that are not contained in, but complement, the Rules.  To view all of the related materials, go to  http://www.ic.nc.gov/OpioidRulesResourcePage.html.
• The Commissioners will convene for a working group meeting, transacting public business, and may take action and vote. In the event the Commission is unable to address all matters on the agenda, any recessed meeting will be announced in open session at the end of the Thursday, May 17th, meeting. The tentative agenda includes:

1. Discuss the internal rules review committees’ reports on the Workers’ Compensation Rules.
2. Discuss the internal rules review committees’ reports on the Tort Claims Rules.
3. Address any other administrative matters, including approving the minutes from the previous Commissioners Meeting.

• The meeting was held at 1:30 p.m. on Thursday, May 17, 2018, in the Industrial Commission Law Library, Room 6037, on the sixth floor of the Dobbs Building, 430 North Salisbury Street, Raleigh, North Carolina 27603. This meeting was held pursuant to Chapter 143 of the North Carolina General Statutes. Accordingly, there will be no opportunity for public comment.
• Effective June 1, 2018, the Industrial Commission’s rules will be re-codified from Title 04 Chapter 10 of the North Carolina Administrative Code to Title 11 Chapter 23 of the Administrative Code. The re-codification is part of the Industrial Commission’s transfer from the Department of Commerce to the Department of Insurance. As a result of the transfer, the Industrial Commission’s rules will move to Title 11 of the Administrative Code, the section under the Department of Insurance. All references and citations to an Industrial Commission rule on or after June 1, 2018, should use the re-codified title and chapter citation.

REGULATORY ACTIVITY:

• On November 21, 2017, by a unanimous decision, the Court of Appeals issued an Opinion reversing the August 9, 2016 Decision of Superior Court Judge Paul Ridgeway and remanding the case for entry of an order affirming the Industrial Commission’s December 14, 2015 Declaratory Ruling. The Court of Appeals held that the ambulatory surgery center provisions of the workers’ compensation medical fee schedule that became effective April 1, 2015 were promulgated in accordance with the Administrative Procedure Act and are valid retroactively and prospectively. Please click here to read that decision. On April 6, 2018, the North Carolina Supreme Court denied Surgical Care Affiliates’ request for a Petition for Discretionary Review. This leaves in place the November 2017 Court of Appeals decision in favor of the Industrial Commission. Rule 04 NCAC 10J .0103, effective April 1, 2015, continues to be the effective fee schedule for ambulatory surgery centers.
• Posted copy of letter sent to the North Carolina Rules Review Commission requesting exemption request regarding industrial commission's rules subject to the current round of periodic review of existing rules.  To view the letter, go to http://www.ic.nc.gov/news.html#hot. 
•  tp://www.ic.nc.gov/news.html#hotws.html" \nd transact public business. The tentative agenda is as follows:
  • Discuss the internal review committees’ reports on the Workers’ Compensation Rules and the Tort Claims Rules and consider potential future rulemaking.
  • Consider potential additional rulemaking related to the Opioid Utilization Rules.
  • Review the draft Companion Guide to the Opioid Utilization Rules.
  • Address other administrative matters, including approving the minutes from the March 20, 2018 Commissioners Meeting.
• On April 19, 2018, the Rules Review Commission approved nine rules adopted by the Industrial Commission for the utilization of opioids, related prescriptions, and pain management treatment in workers’ compensation claims. Six of the nine rules were approved with technical corrections. Please click here to view the nine approved rules. No letters of objection were received. Therefore, these rules went into effect on May 1, 2018. To view the rules, go to  http://www.ic.nc.gov/news.html#hot.
• On April 19, 2018, the Rules Review Commission approved the rule amendment with technical corrections to Rule 04 NCAC 10A .0107. Please click here to view an annotated version of the approved rule showing all amendments. No letters of objection were received. Therefore, this rule as amended is effective as of May 1, 2018. To view the rule, go to http://www.ic.nc.gov/news.html#hot.

REGULATORY ACTIVITY:

• Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Industrial Commission intends to adopt the rules cited as 04 NCAC 10M .0101-.0103, .0201-.0203, .0301, .0401, and .0501. This proposed rule amendment was also published on January 16, 2018 in Volume 32, Issue 14, of the North Carolina Register at Page 1334-1339, available at http://www.oah.state.nc.us/rules/register/Volume%2032%20Issue%2014%20January%2016,%202018.pdf.    Proposed Effective Date:  May 1, 2018. Oral comments on the proposed rule amendment may be made at the Public Hearing before the Industrial Commission: Date:  March 2, 2018 Time:  2:30 p.m. Location:  Room 240, 2nd Floor, Department of Insurance, Albemarle Building, 325 North Salisbury Street, Raleigh, NC 27603. To view the rules as proposed, go to http://www.ic.nc.gov/Proposed10M.Notice-011618.pdf.  To view a copy of the rules as proposed, go to http://www.oah.state.nc.us/rules/register/Volume%2032%20Issue%2014%20January%2016,%202018.pdf.
• Effective March 12, 2018, the Deputy Commissioners’ section will no longer send docketing notices via fax. To continue to receive docketing notices, please opt in to the new e-mail list by e-mailing docketing.notice.opt.in.out@ic.nc.gov with a list of e-mail addresses to add to our contact list. Additionally, docketing reports will continue to be posted at http://www.ic.nc.gov and can be found under “Sections” – “Deputy Commissioners” – “Master List of Cases for Docketing.”
• The Commission will convene to deliberate and vote on a proposed amendment to 04 NCAC 10A .0107 and the proposed adoption of nine rules to be cited in 04 NCAC 10M.  The meeting was held at 1:00 p.m. on Tuesday, March 20, 2018, in the Industrial Commission Hearing Room, Room 2173, on the second floor of the Dobbs Building, 430 North Salisbury Street, Raleigh, North Carolina 27603. This meeting is held pursuant to Chapter 143 of the North Carolina General Statutes. Accordingly, there will be no opportunity for public comment. To view more information regarding the proposed rule change to 04 NCAC 10A.0107, go to http://www.ic.nc.gov/proposed10A0107Notice-011618.pdf.  For more information regarding proposed rules for the utilization of opioids, related prescriptions, and pain management, go to http://www.ic.nc.gov/Proposed10M.Notice-011618.pdf.
• Effective April 2, 2018, the Deputy Commissioners’ section will no longer send calendars and uniform pre-trial orders via fax. Deputy Commissioners shall serve calendars and uniform pre-trial orders to represented parties via e-mail. If an attorney’s e-mail address is unknown or if a party is appearing pro se, mail or certified mail will be used in lieu of e-mail. If you would like to ensure the Commission has record of your email address, you may e-mail dockets@ic.nc.gov.

FEE SCHEDULE NEWS:

• The state has updated the Professional, DME and Laboratory Fee Schedule rates with an effective date of January 1, 2018. The next update is expected in 2019.

REGULATORY ACTIVITY:

• Beginning February 1, 2018, the Full Commission will begin issuing Workers’ Compensation Opinions and Awards and Tort Claim Decisions and Orders with electronic signatures to modernize Commission filings and institute more efficient internal practices. The Full Commission will follow the format used by the Court of Appeals of North Carolina, documenting the names of concurring and dissenting panel members at the end of each opinion. To further streamline the Commission’s internal filing system, the Clerk’s Office will also begin electronically file stamping Full Commission Opinions and Awards and Decisions and Orders.
• As part of the Commission’s effort to increase efficiency, Full Commission orders will be served via e-mail to the attorney of record beginning 5 February 2018. Mail or certified mail will only be used to provide notice when an attorney’s email address is unknown or when a party is appearing pro se. Additionally, the Full Commission will begin issuing orders with conformed signatures.
• Governor Roy Cooper has nominated Robert J. Harris for appointment as a Commissioner to the North Carolina Industrial Commission for a six-year term, pending confirmation by the North Carolina General Assembly. For a brief biography of DC Harris, please click here. Governor Cooper nominated Harris to the seat presently occupied by Commissioner Tammy R. Nance. Commissioner Nance and Deputy Commissioner Harris will continue to serve in their current positions until Harris’ confirmation process is complete and he has been sworn in.
• The Industrial Commission has withdrawn the proposed rule amendment to 04 NCAC 10E .0203, Fees Set by the Commission. Notice of this proposed amendment was published in the North Carolina Register on November 15, 2017 and was posted on the Commission’s website here. Through prudent management of financial resources and the cooperation of the Department of Insurance, the Industrial Commission is pleased to announce that the temporary fee increase in the proposed rulemaking will not be necessary. Now that the Commission’s funds are wholly transferred from the Department of Commerce to the Department of Insurance, the Industrial Commission will not move forward with the proposed rule amendment. To review more detailed information, go to http://www.ic.nc.gov/proposed10E0203PermRule.html.
• On February 19, 2018, the Industrial Commission will take another step towards modernizing and streamlining its internal practices. Deputy Commissioners will begin serving orders via e-mail to the attorney of record. Mail or certified mail will only be used to provide notice when an attorney’s e-mail address is unknown or when a party is appearing pro se. Additionally, Deputy Commissioners will file orders with conformed signatures.
• The Industrial Commission has made minor revisions to the form 24 application to terminate or suspend payment of compensation. Please use the updated form, beginning in February 2018.  To view the updated form, go to http://www.ic.nc.gov/forms/form24fillable.pdf.

REGULATORY ACTIVITY:

• Beginning January 2, 2018, workers’ compensation Opinions and Awards will be served via e-mail to the attorney of record. Certified mail will only be used to provide notice when an attorney’s e-mail address is unknown or when the party is appearing pro se. These changes are in response to N.C. Sess. Law 2017-57, Sec. 15.17’s amendments to N.C. Gen. Stat. § 97-86 and are designed to realize cost savings and institute a more efficient method for providing notice.
• Has posted notice of amendment to existing rules and new rules.
• The Commission posted notice regarding proposed changes to the Computation of Time and Notice by the Commission, Rule 04 NCAC 10A .0107, including the public hearing date and the written comment period for the proposed rule amendment.  The Commission will hold a public hearing on Friday, March 2, 2018, at 10:30 a.m. in Room 240, 2nd Floor, Department of Insurance, Albemarle Building, 325 North Salisbury Street, Raleigh, NC 27603. The Commission will also accept written comments on the proposed rule through March 19, 2018
• The Commission posted notice regarding nine proposed rules for the utilization of opioids, related medications, and pain management treatment in workers’ compensation claims. This notice includes information on the public hearing and the written comment period for the rules proposed for adoption.  The Commission will hold a public hearing on Friday, March 2, 2018, at 2:30 p.m. in Room 240, 2nd Floor, Department of Insurance, Albemarle Building, 325 North Salisbury Street, Raleigh, NC 27603. The Commission will also accept written comments on the proposed rule through March 19, 2018.

REGULATORY ACTIVITY:

• The North Carolina Workers' Compensation Opioid Task Force met at 1:30 p.m. on Tuesday, November 7, 2017.
• The Commission seeks preliminary public comment on the draft rules prior to initiating formal rulemaking. The public feedback will be considered prior to the official filing of proposed rules. The Commission has developed a PowerPoint presentation that provides an executive summary of the draft rules. The Commission strongly recommends reviewing both the PowerPoint and the draft rules before commenting. Comments on the draft rules should be e-mailed no later than December 6, 2017, to meredith.henderson@ic.nc.gov. Professional or other groups are encouraged to consolidate the comments of their members where possible. Questions may be e-mailed to henderson@ic.nc.gov.
• On November 21, 2017, by a unanimous decision, the Court of Appeals issued an Opinion reversing the August 9, 2016 Decision of Superior Court Judge Paul Ridgeway and remanding the case for entry of an order affirming the Industrial Commission’s December 14, 2015 Declaratory Ruling. The Court of Appeals held that the ambulatory surgery center provisions of the workers’ compensation medical fee schedule that became effective April 1, 2015 were promulgated in accordance with the Administrative Procedure Act and are valid retroactively and prospectively.

REGULATORY ACTIVITY:

• Raleigh, N.C. – Recent reports suggest enactment of Senate Bill 407 creates a new section of the Industrial Commission to target employee misclassification. It does not. Instead, the legislation largely codifies preexisting initiatives of the Commission.  The Employee Classification Section of the Industrial Commission was established in December 2015 through Executive Order 83, issued by former Governor Pat McCrory. The Executive Order directed various state agencies, under the management of the Director of the Section, to collaborate independent investigations to determine whether a violation has occurred with the respective agency’s operating statutes. The North Carolina General Assembly codified the Executive Order in recent legislation, which was signed into law on August 11, 2017 by Governor Roy Cooper. Complaints of misclassification for the first and second quarters of calendar year 2017 were up over 644% from the first and second quarters of calendar year 2016.   According to Bradley Hicks, Section Director, “Senate Bill 407 will allow the Employee Classification Section to strengthen the statewide collaborations with agencies in accessing information combat worker misclassification.”   The Section began receiving complaints from various partner agencies beginning in January 2016. Since the Section’s creation, it has entered into information sharing agreements with the NC Department of Commerce: Division of Employment Security and US Department of Labor: Wage and Hour Division. In addition, the Employee Classification Section has been collaborating with the NC Board of Examiners for Plumbing Heating and Fire Sprinkler Contractors, the NC Department of Labor and the NC Department of Justice since the fall of 2016 as well.  If you know of any misclassification, please contact the Employee Classification Section.  The Section is open for business today and ready to help solve this problem.

REGULATORY ACTIVITY:

• The North Carolina Workers’ Compensation Opioid Task Force met at 9:00 a.m. on Friday, August 11, 2017. The meeting took place at the Dobbs Building, located at 430 North Salisbury Street, Raleigh, NC 27603.
• The Commission met at 2:30 P.M. on Wednesday, August 16, 2017, in Room 6037 of the Dobbs Building, located at 430 North Salisbury Street, Raleigh, NC 27603.  The meeting was held at 2:30 P.M. on Wednesday, August 16, 2017, in the Industrial Commission’s Law Library, Room 6037, on the sixth floor of the Dobbs Building, 430 North Salisbury Street, Raleigh, North Carolina, 27603. This meeting was held pursuant to Chapter 143 of the North Carolina General Statutes. Accordingly, there was no opportunity for public comment.
• The Mediation Section of the Industrial Commission posted an exceptional 2016-2017 fiscal year. With the most cases ever referred to mediation in a fiscal year, nearly 10,000, the section recorded its highest settlement rate ever for cases settled at mediation conferences -- 73.81%. The Mediation Section is responsible for effectively, fairly, and efficiently administering the Industrial Commission’s mediation program. The primary purpose of the program is to provide parties an opportunity to actively participate in the resolution of their contested issues, enabling the Commission to devote its limited adjudicatory resources to resolving cases not conducive to settlement.
• A notice of Proposed Amendment to Industrial Commission Rule 04 NCAC 10J .0103 was ruled. The notice contains the website link for the fiscal note approved by the Office of State Budget and Management regarding the proposed rule amendment. The Commission held the public hearing on Wednesday, July 19, 2017. Please click here to view a transcript of the public hearing. The Commission accepted written comments from June 15, 2017 through August 14, 2017. Please click here to review the comments timely received, as well as three public comments received after the deadline.  The public transcript and comments can be found at: http://www.ic.nc.gov/news.html#hot  and clicking on the link in the article.

REGULATORY ACTIVITY:

• Chairman Allen is pleased to announce the appointment of a new Deputy Commissioner, Melissa Grimes, who is joining the North Carolina Industrial Commission to serve a six-year term as a Deputy Commissioner in the Charlotte regional office. Most recently, Grimes was in private practice with Hedrick Gardner in Charlotte, where she focused her practice on workers' compensation. Originally from Eastern North Carolina, Grimes graduated magna cum laude from East Carolina University, where she received her B.A. in Communications / Public Relations. She went on to receive her Juris Doctor from the Campbell University School of Law.
• The Department of Insurance published in their register notice of amendments to rules regarding managed care, health care provider networks and third-party administrators.
• The North Carolina Workers’ Compensation Opioid Task Force met at 9:00 a.m. on Friday, July 21, 2017. The meeting took place at the Dobbs Building, located at 430 North Salisbury Street, Raleigh, NC 27603. The meeting was held in the Judge Wells Conference Room on the fifth floor.
• The North Carolina Industrial Commission’s Compliance and Fraud Investigative Division is continuing to proactively identify businesses that do not comply with the Workers’ Compensation Act at an unprecedented rate. For Fiscal Year 2016-2017, the Compliance Unit collected over $1.7 million in penalties for noncompliance, and the Fraud Investigative Unit issued 412 total charges for suspected violations of the Workers’ Compensation Act.   The North Carolina Industrial Commission’s Compliance and Fraud Investigative Division is continuing to proactively identify businesses that do not comply with the Workers’ Compensation Act at an unprecedented rate.  Over the past several years, the Commission has worked to develop this Division, which is responsible for working with businesses to ensure that adequate insurance is maintained, and to identify non-compliant businesses using an advanced data-matching application named the Non-Compliant Employer Targeting System (“NETS”).   This database analyzes data from partnering state agencies to determine if a business is reporting three or more employees, and whether they have workers’ compensation insurance coverage.  The NETS program recently received a significant upgrade to ensure that the application is utilizing the most accurate and current data available.  The Compliance Unit handles civil cases and issues civil penalties to non-insured businesses for failure to carry the requisite workers’ compensation insurance.  For Fiscal Year 2016-2017, the Commission’s Compliance Unit collected over $1.7 million in penalties from non-compliant employers, a 15% increase over the previous fiscal year total.  In fiscal year 2015-2016, the Commission collected nearly $1.5 million in civil penalties.  This was approximately 50% higher than fiscal year 2014- 2015, when the Commission collected $992,965 in civil penalties.  The clear proceeds of civil penalties are remitted to the Civil Penalty and Forfeiture Fund, and distributed to public schools across the state.  The Fraud Investigative Unit operates as a law enforcement agency, and is responsible for conducting criminal investigations into cases of suspected workers’ compensation fraud and violations related to workers’ compensation claims.  Because of their investigations, the Commission issued 412 total charges for suspected violations of the Workers’ Compensation Act in Fiscal Year 2016-2017, up 275% from 150 total criminal charges in the previous Fiscal Year, with just one charge against an employee.  Notably, an alleged scheme to scam two insurance companies for more than $150,000 in workers’ compensation claims based on policies issued to fake businesses was recently exposed and stopped in its tracks by Fraud Investigators of the Industrial Commission.  One man was arrested and charged with four felony counts in conjunction with the scheme.
• Posted notice of rulemaking to amend the provisions of Rule 04 NCAC 10J .0103 for several reasons.  The proposed amendment to Paragraph (a) is a clarification regarding the qualifications for reimbursement under Paragraphs (c), (d), and (f).  Next, there are two primary reasons for the proposed amendments to the provisions related to fees for ambulatory surgical centers, Paragraphs (g) and (h).  First, this rule has been the subject of litigation that is ongoing at the time of filing.  The provisions of the rule as adopted on April 1, 2015, that relate to fees for ambulatory surgical centers, specifically Paragraphs (g) and (h) and the reference to (h) in Paragraph (i) were held to be invalid by Wake County Superior Court Judge Paul Ridgeway in an August 9, 2016 Decision.  The decision was predicated on the court’s belief that those provisions of the rule were not adopted in compliance with the Administrative Procedure Act because no fiscal note was prepared.  The Industrial Commission has appealed that ruling, and the matter is pending before the North Carolina Court of Appeals.  The August 9, 2016 Decision was stayed by Judge Ridgeway by Order dated September 2, 2016.  While the Industrial Commission maintains its position that it was not required to complete a fiscal note to adopt and/or amend the challenged provisions, the Industrial Commission has now completed a fiscal note and seeks to amend the ambulatory surgical centers fee provisions of Rule 04 NCAC 10J .0103.  Pending the outcome of the litigation, the amendments are sought to restore certainty and balance to the fee schedule for stakeholders, including payers and medical providers, as to future medical expenses.  Moreover, the Industrial Commission is statutorily obligated to periodically review the schedule of maximum fees charged for medical treatment in workers’ compensation cases and make revisions if necessary.  The proposed amendments to Rule 04 NCAC 10J .0103 incorporate feedback from various stakeholders that the addition of a provision setting maximum fees for ambulatory surgical centers, for additional procedures covered by the Medicare Outpatient Prospective Payment System, would be beneficial to payers, providers, and injured workers. Supporting documentation is attached.
• The North Carolina Workers’ Compensation Opioid Task Force met at 1:30 p.m. on Monday, July 31, 2017. The meeting took place at the Albemarle Building, located at 325 North Salisbury Street, Raleigh, NC 27603.