FEE SCHEDULE NEWS:

• The Department of Labor & Industries has adopted a new medical and ASC fee schedule with an effective date of July 1, 2018. The next update is expected in July 2019.

REGULATORY ACTIVITY:

• Subject of Possible Rule Making: Chapter 296-15 WAC, Workers' compensation self-insurance rules and regulations. Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 51.04.20 [51.04.020] and 51.32.190. Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: Existing rules are outdated and have been a point of concern for both business and labor. An advisory workgroup of business and labor representatives has worked with the department to formulate modernized rule concepts for consideration by the broader communities. Key objectives of this rule-making effort: Better communication to workers; Greater certainty for employers; and Reduced re-adjudication and strengthened regulation by the department of labor and industries that better aligns with statutory mandates. Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: No other state, local, or federal agency regulates this subject. Process for Developing New Rule: The department of labor and industries will work collaboratively with representatives of the labor and self-insured employer communities throughout all phases of this rule-making process. A public hearing will be held after the proposal is filed. Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting James Nylander, Self-Insurance Program Manager, P.O. Box 44890, Olympia, WA 98504-4890, phone 360-902-6907, fax 360-902-6977, email Nylander@lni.wa.gov.
• Posted notice of intention to adopt 31 days after publication amendments to rule WAC 296-06-120 Copying fees charged by the Department of Labor and Industries.  The purpose of this rule making is to implement an agency fee schedule for reimbursement of the costs associated with fulfilling public records requests. The current rule does not include a fee schedule for providing electronic records. An agency study has been conducted to determine the actual costs associated with copying, scanning, electronically producing and delivering records and the guidelines to appropriately assess the fees.  To view the rule, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/10/18-10-081.htm.
• Posted notice of the effective date for updated rules WAC 296-20-135, WAC 296-23-220, and WAC 296-23-230.  This rule updates conversion factors provided in WAC 296-20-135 and maximum daily fees provided in WAC 296-23-220 and 296-23-230 for certain professional health care services for injured workers. Rule changes are necessary to maintain current overall fees for health care services, which are published annually in the medical aid rules and fee schedules. These rules increase the resource based relative value scale, anesthesia conversion factors and the maximum daily caps to be consistent with the changes for other professional fees resulting from increases in the relative value units published by the Centers for Medicare and Medicaid Services.  The effective dates of these amendments to the rules is July 1, 2018.   To view the rule, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/10/18-10-082.htm.
• Published two new coverage decisions regarding conditions covered in workers' compensation. The decisions are as follows:
  • “Continuous glucose monitoring (CGM) - L&I has determined that the Health Technology Clinical Committee (HTCC) decision to cover CGM does not apply to Washington’s workers’ compensation because diabetes is not typically work related, and therefore does not meet the definition of an industrial injury or occupational disease”.   To view the full text of the decision, go to http://www.lni.wa.gov/ClaimsIns/Providers/TreatingPatients/ByCondition/CGM.asp?utm_medium=email&utm_source=govdelivery
  • “Genomic microarray - L&I has determined that the Health Technology Clinical Committee (HTCC) decision to cover genomic microarray for diagnosing genetic abnormalities in children does not apply to Washington’s workers’ compensation, which only covers work-related injuries or occupational disease”.  To view the full text of the decision, go to http://www.lni.wa.gov/ClaimsIns/Providers/TreatingPatients/ByCondition/GenomicMicroarray.asp?utm_medium=email&utm_source=govdelivery

REGULATORY ACTIVITY:

• Workers' Compensation Self-Insurance Rules and Regulations (Chapter 296-15 WAC). The purpose of this rulemaking is to update Chapter 296-15 WAC, Workers’ Compensation Self-Insurance Rules and Regulations. The existing rules are outdated and have been a point of concern for both business and labor. An advisory workgroup of business and labor representatives has worked with the department to formulate modernized rule concepts for consideration by the broader communities. The key objectives of this rulemaking effort include: better communication to workers; greater certainty for employers; and reduced re-adjudication and strengthened regulation by the department that better aligns with statutory mandate.  To view a copy of the pre-proposal, go to lni.wa.gov/LawRule/WhatsNew/Proposed/default.asp?RuleID=263.

LEGISLATIVE ACTIONS:

House Bill 1336

The legislation Exempts from social security offset requirements, workers who applied to receive social security retirement benefits before the date of their injury and workers receiving social security benefits before their injury. Effective Date June 7, 2018.

Senate Bill 6214

The legislation exempts certain firefighters, law enforcement officers, and emergency medical technicians from a rule of the department of labor and industries that claims based on mental conditions or mental disabilities caused by stress do not fall within the definition of occupational disease. Provides a prima facie presumption, with regard to certain firefighters, law enforcement officers, and emergency medical technicians who are covered under the state industrial insurance act, that posttraumatic stress disorder is an occupational disease.  Effective Date June 7, 2018.

Senate Bill 6245

The enacted legislation centralizes and consolidates the procurement of spoken language interpreter services and expands the use of language access providers. It authorizes the department of social and health services, the department of children, youth, and families, and the state health care authority to purchase interpreter services on behalf of limited English-speaking applicants and recipients of public assistance. Authorizes the department of labor and industries to purchase interpreter services for medical and vocational providers authorized to provide services to limited English speaking injured workers or crime victims. Requires the department of social and health services, the department of children, youth, and families, the state health care authority, and the department of labor and industries, no later than September 1, 2020, to purchase in-person spoken language interpreter services directly from language access providers, and/or through limited contracts with scheduling and coordinating delivery organizations. Requires the department of enterprise services, upon the expiration of a contract in effect on the effective date of this section, but no later than September 1, 2020, to develop and implement a model that all state agencies must use to procure spoken language interpreter services by purchasing directly from language access providers and/or through contracts with scheduling and coordinating entities. Effective Date June 7, 2018.

Senate Bill 6393

The enacted legislation revises the state industrial insurance act to authorize the department of labor and industries to use a different assumption for annual investment returns for the reserve funds for self-insured and state fund pension claims. Effective Date June 7, 2018.

REGULATORY ACTIVITY:

• Published notice of policy statement changes regarding resolution and settlement authority, payment for smoking cessation products for spinal fusion candidates and payment for tobacco cessation products for surgical candidates.  To view published notice, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/05/18-05-038.htm. 
• The department is proposing rulemaking to amend the current public records fee schedule in WAS 296-06-120, legislation passed in 2017 that amended RCW 42.56.120 which governs agency charges to requestors for providing copies of public records.  To view the proposed notice and rule, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/05/18-05-084.htm

LEGISLATIVE ACTIONS:

House Bill 1723

The enacted legislation states that there exists a prima facie presumption, with regard to United States department of energy Hanford site workers who are covered under the state industrial insurance act, that the following are occupational diseases: Respiratory disease; heart problems, experienced within seventy-two hours of exposure to fumes, toxic substances, or chemicals at the site; cancer; beryllium sensitization, and acute and chronic beryllium disease; and neurological disease. Effective Date June 7, 2018.

REGULATORY ACTIVITY:

• Posted notice of updates to the Medical Aid Rules update regarding Rule WAC 296-20-135, WAC 296-23-220 and WAC 293-23-230.  The purpose of this rulemaking is to update the Medical Aid Rules rates. The affected rules describe elements used in the process of updating the maximum allowable payments for most professional health care services. This rulemaking proposes to:
  • Change the conversion factor used to calculate payment levels for services payable through the Resource Based Relative Value Scale (RBRVS) fee schedule;
  • Change the conversion factor used to calculate payment for anesthesia services; and
  • Increase the maximum daily payment for physical and occupational therapy.

To view the notice, go to http://www.lni.wa.gov/LawRule/WhatsNew/Proposed/default.asp?RuleID=268.  Comments on the proposed rules are due by March 28, 2018.

• Notice of statement of inquiry was filed regarding conversions factors for the fee schedule. To view the notice of inquiry and the proposed hearing date, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/04/18-04-098.htm.
• Notice of intent to amend rule 296-20 WAC Medical Aid Rules.  To view the notice, go to http://lawfilesext.leg.wa.gov/law/wsr/2018/04/18-04-102.htm.

REGULATORY ACTIVITY:

• Posted notice of the following in the register:  Subject of Possible Rule Making: Chapter 296-14 WAC, Industrial insurance.  Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 04.020, 51.44.070(1), 51.44.080.
• Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The pension discount rate is the interest rate used to account for the time value of money when evaluating the present value of future pension payments. Currently, WAC 296-14-8810 sets the pension discount rate at 6.2 percent. The department worked with the workers' compensation advisory committee (WCAC) developing a plan for reducing the pension discount rate annually, through 2022, until it reaches 4.5 percent. The purpose of this rule making is to consider whether to reduce the current pension discount rate for 2018 in furtherance of that long-term goal. Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: None. Process for Developing New Rule: Parties interested in these rules may contact the individual listed below. The public may also participate by commenting after amendments are proposed by providing written comments and/or testimony during the public hearing and comment process. Public hearings will be held after the proposal is filed. Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Suzy Campbell, Claims Specialty Services, P.O. Box 44250, Olympia, WA 98504-4250, phone 360-902-5003, fax 360-902-4960, TTY 360-902-4252, email campbell@lni.wa.gov.
• Good communication is key to high-quality health care and vocational services. As part of our efforts to ensure access to care, L&I pays for interpretation services for workers who have limited ability to speak English. An L&I work group is evaluating whether our customers’ language needs are being met. The work group will also identify a method of evaluating interpretation services on an ongoing basis. We need your help to gather information.  If you use interpretation services at medical or vocational appointments, we want to hear your observations. Are the services effective at helping the worker understand their work-related injury or illness, and the recommended treatment? To tell us what you know, use the form at wa.gov/apps/RAI/default.asp.  We will be collecting information for six months. You can share your thoughts about interpretation services over the next few months — until May 1, 2018 when our workgroup must conclude its efforts. Your responses will help us develop our long-term strategy for ensuring high-quality interpreter services. Questions? Contact Cecilia Maskell at 360-902-5161.

REGULATORY ACTIVITY:

• Posted rules regarding the Acupuncture Pilot Program affecting Chapter296-20 WAC; Chapter 296-23 WAC Radiology, Radiation Therapy, Nuclear Medicine, Pathology, Hospital, Chiropractic, Physical Therapy, Drugless Therapeutics and Nursing – Drugless Therapeutics.  The purpose of this rulemaking is to initiate a pilot that would help determine how acupuncture treatment could best be incorporated into the workers’ compensation setting. The department has reviewed the best available scientific and clinical evidence related to the efficacy of acupuncture for treating low back pain. Current rules state that the department or self-insurer will not allow nor pay for acupuncture (WAC 296-20-03002). Additionally, the department or self-insurer will not pay for services performed by Acupuncturists (WAC 296-20-01505). Under this pilot, these current provisions related to acupuncture treatment and acupuncturists will be waived only for pilot participants. The pilot will begin October 1, 2017 and will continue throughout a two-year period or as otherwise specified. Pilot program results will be considered in developing proposed rule language, medical coverage decisions and/or payment policy. L&I has determined that such a waiver is in the public interest and necessary to conduct this pilot project.
• Subject of Possible Rule Making: Amendment of sections of chapter 263-12 WAC, Practice and procedure. Procedural rules for hearings conducted by the agency. Allow for disposition of appeal when the department of labor and industries or the self-insured employer must initially [initially] present its case in chief and the appellant does not appear at the hearing. Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 52.020. Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: In appeals filed from orders that determined a worker had obtained benefits through willful misrepresentation or in appeals from citations issued by the division of occupational safety and health, the department or self-insured employer has the burden of initially introducing all of its case[s] in chief. When the appealing party or their representative does not appear at the initial hearing, the department of labor and industries or the self-insured employer is required to present its proof in support of defending the appealed order. The rule would allow for disposition of the appeal due to the appellant's nonappearance without the need to take evidence from the department or self-insured employer.  Process for Developing New Rule: Interested parties can participate in the adoption process for the new rule and formulation of the rule before publication by contacting the individual listed below. The public can also participate by providing written comments and/or testimony during the public hearing and comment process.  Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting David Threedy, P.O. Box 42401, Olympia, WA 98504-2401, phone 360-753-6823, fax 885-586-5611 [855-586-5611], TTY 800-833-6388, email dave.threedy@biia.wa.gov, web site www.biia.wa.gov.
• Subject of Possible Rule Making: • Chapter 296-20 WAC, Medical aid rules. • Chapter 296-23 WAC, Radiology, radiation therapy, nuclear medicine, pathology, hospital, chiropractic, physical therapy, drugless therapeutics and nursing—Drugless therapeutics, etc. • Acupuncture. Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 51.04.020, 51.04.030, and 34.05.313. Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The department of labor and industries (L&I) has reviewed the best available scientific and clinical evidence related to the efficacy of acupuncture for treating low back pain. Based on this review, L&I has decided to initiate a pilot that would help determine how acupuncture treatment could best be incorporated into the workers' compensation setting. Current rules state that the department or self-insurer will not allow nor pay for acupuncture (WAC 296-20-03002). Additionally, the department or self-insurer will not pay for services performed by acupuncturists (WAC 296-20-01505). Under this pilot, these current provisions related to acupuncture treatment and acupuncturists will be waived only for pilot participants. The pilot will begin October 1, 2017, and will continue throughout a two-year period or as otherwise specified. Pilot program results will be considered in developing proposed rule language, medical coverage decisions and/or payment policy. L&I has determined that such a waiver is in the public interest and necessary to conduct this pilot project. Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: L&I is governed by Title 51 RCW, Washington's Industrial Insurance Act. No other state or federal agencies are responsible for interpreting and enforcing the provisions of this act. Process for Developing New Rule: Pilot rule making. Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Jami Lifka, Medical Program Specialist, L&I, Office of the Medical Director, P.O. Box 44321, Olympia, WA 98504-4321, phone 360-902-4941, fax 360-902-6315, TTY 711 or 360-902-4941, email Jami.Lifka@Lni.wa.gov, web site Lni.wa.gov. Additional comments: For information related to the pilot program requirements and how to participate in the pilot, please contact Zachary Gray at 360-902-5025 or achary.Gray@Lni.wa.gov. You can also subscribe to the acupuncture pilot listserv at http://lni.wa.gov/Main/Listservs/LNI-Acupuncture.asp. Additional information can be found on the acupuncture pilot web site at www.Lni.wa.gov/Acupuncturepilot.
• o Adopted changes to Vocational Rehabilitation (Option 2) (Chapter 296-19A WAC).  The adopted rule will become effective on October 20, 2017.
• o Subject of Possible Rule Making: Update to pharmacy benefit manager rules.  Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 02.060, 48.02.220. Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: In this rule-making process, the office of the insurance commissioner (OIC) will revise existing sections or add new sections to the rules regarding pharmacy benefit managers (PBM) in chapter 284-180 WAC to incorporate minor technical additions that the agency has identified as being necessary to fully implement 2016 c 210 §§ 1 and 2 through 7. As an example of one of these changes, OIC will require each PBM to provide the name of the person who will serve as the single point of contact between PBM and OIC. Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Not applicable. Process for Developing New Rule: Submit written comments by October 6, 2017.Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Bianca Stoner, P.O. Box 40258, Olympia, WA 98504, phone 360-725-7041, fax 360-586-3109, TTY 360-586-0241 or 360-725-7087, email rulescoordinator@oic.wa.gov, web site https://www.insurance.wa.gov/.

REGULATORY ACTIVITY:

• Posted in the register the rule regarding option 2 in vocational rehabilitation. The proposed rules provide further clarification about Option 2 benefits. After a worker's vocational retraining plan is approved by the department, the worker can elect Option 2, which allows the worker access to training funds for a self-directed training plan. The worker can use up to ten percent of the Option 2 training funds for vocational counseling and job placement services if the worker's vocational retraining plan was approved on or after July 31, 2015.
• The Washington State Department of Labor & Industries (L&I) will soon be undertaking an Acupuncture Pilot Project.  While the project is underway, L&I will pay qualified providers participating in the pilot project to deliver acupuncture treatment to injured workers with low back pain related to an accepted condition on an open workers’ compensation claim.  The details of this pilot, including restrictions and payment mechanisms, can be found on the L&I Acupuncture pilot webpage.

http://lni.wa.gov/ClaimsIns/Providers/TreatingPatients/ByCondition/Acupuncture/default.asp.

• L&I will use the pilot rulemaking process to allow and pay for acupuncture services during this pilot (RCW 34.05.313 Feasibility studies – Pilot projects). The exceptions to allow payment for acupuncture are effective throughout a two-year pilot period or as otherwise specified and will apply only to pilot participants. The CR-102 will be filed when there is sufficient data to assess and evaluate the provision of acupuncture treatment within the workers’ compensation setting. At that time, pilot program results will be considered in developing proposed rule language, medical coverage decisions and/or payment policy.
•  To stay tuned on the progress of the pilot project, please join the L&I Acupuncture Pilot Project listserv (http://lni.wa.gov/Main/Listservs/LNI-Acupuncture.asp). When L&I is ready to begin enrolling acupuncture providers into the pilot project, it will be announced on the L&I acupuncture listserv (please note that enrollment in the listserv does not constitute enrollment in the pilot).  If you want to learn more, to be prepared to apply to be an acupuncture provider in the L&I pilot project, or to follow this work, please join the acupuncture listserv.
• Please direct any questions that you may have to the following L&I staff:
  • Questions related to the pilot should go to Zachary Gray at (360) 902-5025 or Zachary.Gray@Lni.wa.gov.
  • Questions related to the pilot rulemaking should go to Jami Lifka at (360) 902-4941 or Jami.Lifka@Lni.wa.gov

REGULATORY ACTIVITY:

• The state has issued a coverage decision regarding sacral nerve stimulation for treatment of fecal incontinence.  The coverage decision is covered with conditions.  This decision will take effective on September 1, 2017.
• Posted notice of rulemaking regarding vocational rehabilitation.  The purpose of this rulemaking is to implement Senate House Bill 1496 (Chapter 137, Laws of 2015). The proposed rule change provides further clarification about Option 2 vocational training benefits. After a worker’s vocational retraining plan is approved by the department, the worker can elect Option 2, which allows the worker access to training funds for a self-directed training plan. The worker can use up to ten percent of the Option 2 training funds for vocational counseling and job placement services if the worker’s vocational retraining plan was approved on or after July 31, 2015. The proposed rules will:
  • Revise wording to make the rules easier to understand;
  • Explain the worker’s option election limits;
  • Define Option 2 vocational counseling and job placement services;
  • Specify who can provide Option 2 vocational counseling and job placement services;
  • Describe how Option 2 vocational counseling and job placement services are delivered;
  • List the vocational provider’s Option 2 reporting requirements; and
  • Outline how Option 2 vocational bills are charged and paid.

The proposed rules were developed in consultation with the Vocational Subcommittee.

FEE SCHEDULE NEWS:

• The Department of Labor & Industries has adopted a new medical and ASC fee schedule with an effective date of July 1, 2017.  The update increases the conversion factor for most services from $61.25 to $63.25.  The conversion factor for anesthesia procedures is also increased to $3.44 per minute from $3.41 per minute.  Further, the state has increased the cap on the daily maximum amount that a provider can be paid for physical or occupational therapy to $126.94 per day from $125.68 per day and introduced a limitation for authorized massage therapy of 75% of the daily physical therapy cap.

REGULATORY ACTIVITY:

• L&I has significantly expanded and updated the Foot and Ankle guideline.  Public comments were being accepted on the draft guideline through June 29, 2017. The draft guideline will be presented, along with all public comments, at the July 27th Industrial Insurance Medical Advisory Committee
• Extracorporeal Shock Wave Therapy (ESWT) - L&I has adopted the Health Technology Clinical Committee’s coverage determination to not cover ESWT for musculoskeletal conditions. This coverage decision takes effect on August 1, 2017.
• Updated Carpal Tunnel Syndrome Guideline-  L&I has expanded the work-related portion of the Carpal Tunnel Syndrome (CTS) guideline related to computer use (mousing and keyboarding).  The surgical criteria remain the same.  The updated guideline is also available within the Medical Treatment Guideline section and is effective July 1, 2017.