2020 Workers’ Compensation Rule Updates

The Division of Workers’ Compensation seems to be on a constant mission to tweak various workers’ compensation rules of procedure.  Some of these changes are directed at situations that clearly need attention, while others are less clear.  This year is no different.  There have been several rule changes from the Division of Workers’ Compensation that take effect at the first of the year or have already taken effect.  I will try to break down the rule changes as briefly and clearly as I can.

 

Rule 2: Workers’ Compensation Insurance Premium and Payroll Surcharge EFFECTIVE 7/1/20

As you may or may not be aware, an approved rate reduction in “loss costs” occurred this year.  Loss costs are the average cost of lost wages and medical payments paid to or on behalf of the injured worker.  This is a component of an employer’s premium calculation.  Rule 2 changes do not have anything to do with claim handling and, therefore, do not require coverage.

 

Rule 16: Utilization Standards EFFECTIVE 1/1/21

16-2 Standard Terminology for Rules 16, 17 and 18

Believe it or not some of the terminology throughout the rules did not match.  Here are some housecleaning efforts.

16-2(E): You may not have known this, but a “certified medical interpreter” had a specific definition.  They were individuals with certification from the Certification Commission for Healthcare Interpreters or the National Board of Certification for Medical interpreters.  16-2E struck the definition of a Certified Medical Interpreters.  If you recall, several years ago there were concerns raised that medical conditions referenced by the injured worker were not making it into reports based on language barriers.  This requirement had the unintended consequence of making it hard to find a certified medical interpreter, hence the change.

16-2G: There has been inconsistency throughout the rules in that some rules used “business days” for time measurement while others simply used “days.”   This particular change clarifies that “day” is a calendar day unless otherwise noted.  So now day means day unless the rules says business day, or some other type of day.  This really does clarify things.

16-2H:  If I used the term designated provider list in the workers’ compensation setting what you think it would mean?  If you struggled for an answer other than the doctor list the employer provides to an injured worker join the club.  Well never fear, this change clarifies that “designated provider list” means the physician list as required under Section 8-43-404(5)(A)(1), C.R.S.

16-2N & Q:  This rule change better defines a non-physician provider to include a surgical assistant.  It also defines a “Physician Provider” as someone who is board licensed in their area of practice.  For instance, a physician provider would need to be licensed by the Colorado Medical Board, a dental provider would have to be licensed by the Colorado Dental Board, etc.  It is recommended to simply review this rule if the question is encountered.

16-3A:  This requires that any provider not listed in 16-2 as a “Physician Provider” requires prior authorization to provide services for a work injury.

16-3B, C & D:  This now requires that all providers have a referral from a physician provider managing the claim (or NP/PA working under that physician provider).  It used to be that only non-physician providers had to have a referral from a physician provider, but now it is everybody.

16-6:  This rule deals with a provider’s notification to treat an injured worker.  It basically sets forth the way in which a provider advises a payer of the treatment to get paid for that treatment.  This year’s change requires the payer’s response time to a notification to treat.  It goes from 5 business days to 7 calendar days.  Although this makes the rule more uniform, in certain circumstances, such as determining a holiday that would otherwise not be included as a business day, this could make it difficult to respond to such a request.

16-7:  Prior Authorization issues are always difficult.  This section of Rule 16 changes the payer’s response time from 7 business days to 10 calendar days.  Once again, while making the rule more uniform in certain circumstances, such as determining a holiday that would otherwise not be included as a business day, this could make it difficult to respond to such a request.

16-7-1:  Deals with prior authorization denials – when a denial is made based upon a medical report that predates the request. Under this change, an IME or report from an ATP used to deny a prior authorization request based solely on relatedness to the injury cannot be older than one year from the date of the prior authorization request.  Further, such a report can only be used if there is not an admission of liability filed admitting the relatedness of the requested treatment, or a final order has not been entered finding that the specific medical condition is related to the admitted injury.  Otherwise, the IME report or ATP opinion must be after the prior authorization request.  The thinking behind this rule change is that a stale report cannot be used to deny prior authorization request.  One wonders what happens when the request is for the same treatment over and over.  Can the requests get stale too?

16-7-2:  This section deals with appeals of a prior authorization denial.  Now the requesting party has 10 days from the date of the denial to appeal the denial.  By the same token the payer has 10 days from the date of the appeal to issue a final decision.

16-9A & B: This section deals with required medical record documentation to get paid.  This rule was modified so that a claimant’s functional response to treatment no longer needs to be documented.  There is also no longer a requirement that the documentation reference specifics for a treatment plan.

16-10A:  This section deals with payment requirements for medical bills.  There was a suggested change that would have no longer required bills be submitted by a provider but could be submitted by anybody.  Fortunately, over these suggested changes that would have allowed submission by the attorney or party, the rule remains that the submission must be made by the provider.

16-10-2A:  This section deals with denying payment of billed treatment for non-medical reasons.  This change to this section now allows for denial for non-medical reasons for improper use of a CPT code.

16-10-2C:  When denial for non-medical reasons the payer’s denial does not have to be made within 30 days of receipt of the bill.

16-10-4: this section deals with appealing billed treatment that has been denied.  The billing party has 60 days from the date of the written notice to request reconsideration to appeal.  The appeal now has to have the specific code being appealed.

 

Rule 18 Medical Fee Schedule EFFECTIVE 1/1/21

18-4(I): Telemedicine:  This provides guidelines and requirements for telemedicine.  Telemedicine must comply with requirements found under the Colorado Medical Practices Act and the Colorado Mental Medical Board and the Colorado Board of Psychologist Examiners.  A physician-patient relationship must be established for telemedicine to occur.  The same documentation required of an in-person evaluation is required of telemedicine.

18-9D: App-Based Interventions:  This new subsection allows the provider to write an order for an app-based intervention for the injured worker.  For instance, as part of biofeedback perhaps the apps Hello Mind or Mindspring could be prescribed.  For more physiologic app, perhaps some sort of activity tracker would be prescribed.  Such an order is to have a designated time frame for use and must be payable by invoice and billed directly to the payer the maximum allowable charges $25 a month and the maximum duration is three months per order. Anything over this amount requires prior authorization.

 

If you have any questions about the updated Rules, or any employment or workers’ compensation related question, please contact Lee & Brown, LLC.

Colorado Legislative Changes Coming Soon

One of Lee + Kinder, LLC’s primary goals is to educate our clients and keep them apprised of changes in Colorado law.  There are some very important legislative changes coming in July 2014 to our workers’ compensation laws.

Additionally, in April 2015, the law requiring respondents designate two authorized treating providers will change.  The new law will require respondents to designate four authorized treating providers.  We hope you find the summary and flow chart provided below helpful.  Please do not hesitate to contact any of the attorneys at Lee + Kinder, LLC with questions about these significant changes.

Legislative Changes Summarization
SENATE BILL 14-191- effective date July 1, 2014

Section 1: C.R. S. §8-43-201-Medical Treatment Guidelines
An ALJ or the Director may consider the medical treatment guidelines when determining whether a requested medical treatment is reasonable, necessary and related to the injury. However, the ALJ or Director is not required to utilize the guidelines as the sole basis for such determination.

Section 2: C.R.S. §8-43-204-Settlement Documents
A represented claimant may submit settlement documents by email.  Original documents are not necessary if the claimant’s signature is notarized.  The Division may send the Order approving the settlement documents to the parties by email.

Sections 3 and 4: C.R.S. §8-43-209 and §8-43-211-Time schedule to set hearings
Hearings must commence within 120 days from the date of the application for hearing. The parties can agree to one extension of the hearing, not to exceed 60 days.

Section 5: C.R.S. §8-43-215-Orders
If an ALJ issues a Summary Order, any party dissatisfied with that Order may make a written request for a full Order within 10 working days after the date of mailing of the Summary Order.

Section 6: C.R.S. §8-43-315-Subpoenaing out of state witnesses
The Director, ALJ or PALJ may, upon good cause shown, order the attendance at a hearing or deposition of any party, or officer, director, employer, or agent of any party, who is located in another state. That witness shall appear in person, or by telephone, if so ordered.

If the witness fails, absent reasonable excuse to appear as ordered, then penalties may be assessed per §8-43-304(1).

Section 7: C.R.S. §8-43-318-Remand Order deadlines
If an Order is appealed and the Order is remanded with directions, the Director, or ALJ, shall issue an order consistent with those directions within 30 days from receipt of the remand.

Section 8: C.R.S. §8-43-404-Costs for IMEs/Discharge from care for non-medical reasons
If a claimant verifies that he/she will incur uncompensated wage loss because of a respondent IME, the respondent shall reimburse the claimant at the rate of $75 per day. This is in addition to transportation, mileage, food, and/or hotel costs.  The claimant has to request this reimbursement at least 3 business days before the IME.

If an ATP refuses to treat a claimant, or discharges them from medical care for non-­medical reasons when the claimant requires medical treatment to cure and relieve the effects of the injury, then the physician shall, within 3 business days, provide:

  • Written notice of the refusal or discharge by certified mail to the claimant.
  • The notice must explain the reasons for the refusal or discharge.
  • The notice must offer to transfer the claimant’s medical records to any new ATP.

The Director or ALJ has jurisdiction to resolve disputes whether the refusal or discharge was for medical or non-medical reasons.

If respondents receive written notice from the ATP, or if the respondents and the ATP receive written notice by certified mail from the claimant, that the ATP refuses to treat or discharges the claimant for non-medical reasons and there is no other ATP, the respondents shall, within 15 calendar days from receiving the notice from claimant, designate a new ATP willing to provide treatment. If respondents fail to do this, then the claimant may select their own ATP.

Section 9: C.R.S. §8-43-406-lump sums
If the claimant is an injured worker or sole survivor of a deceased worker, the aggregate of all lump sums cannot exceed $80,868.10.

If the claimant is one of multiple dependents of a deceased worker, the aggregate of all lump sums must be a proportionate share, as determined by the Director or ALJ, and shall not exceed  $161,734.15.

For all injuries after January 1, 2014, the Director shall adjust the lump sum limits each July 1 beginning in 2014, by the percentage of change (up or down) in the State AWW.

Claimants who have received a lump sum pursuant to this section are not entitled to any further lump sums as a result of an adjustment by the Director per the State AWW.
____________________________________________________________________________

Flow Chart Summary Re: Change to Designated Providers
HOUSE BILL 14-1383- anticipated effective date April 1, 2015
Current law requires an employer or insurer to provide a list of at least 2 physicians or corporate medical providers, or one physician and one corporate medical provider, to an injured worker from which to select a treating physician. This bill changes that number to 4 physicians or corporate medical providers.

Additionally, current law states that if there are fewer than 4 physicians or corporate medical providers within 30 miles of the employer’s place of business, the employer or insurer may instead designate one physician or corporate medical provider. This bill adds an exemption for rural areas where there are more than 3 but fewer than 9 physicians or corporate medical providers within 30 miles of the employer’s place of business.  The employer or insurer may instead designate 2 physicians or 2 corporate medical providers, or a combination of the providers.

ANALYSIS

Question #1 

Within 30 miles of the employer’s place of business, are there fewer than 4 physicians or corporate medical providers willing to treat workers’ compensation patients?

Yes – then the employer or insurer may list 1 physician or corporate medical provider and the claimant is not entitled to the automatic one-time change of physician. A physician is presumed willing to treat workers’ compensation patients unless he/she specifically indicates no. (C.R.S. §8-43-404(S)(a)(I)(B)).

No – then go to the next question.

Question #2 

Within 30 miles of the employer’s place of business, are there 2 or more physicians or 2 or more corporate medical providers with distinct locations and without common ownership?

No – then the employer or insurer may list 2 providers from the same location or with common ownership (C.R.S.§8-43-404(S)(a)(I)(A) and C.R.S.§8-43-404(S)(a)(I)(C)).

Yes – then go to the next question.

Question #3 

Within 30 miles of the employer’s place of business, are there more than 3, but less than 9, physicians or corporate medical providers willing to treat WC patients?

Yes – then the employer or insurer may list 2 physicians or corporate medical providers with distinct locations and without common ownership. (C.R.S. §8-43-404(5)(a)(I)(C)).

No – then go to the next question.

Question #4 

Within 30 miles of the employer’s place of business, are there 9 or more physicians or corporate medical providers willing to treat patients?

Yes – then the employer or insurer must list 4 physician or 4 corporate medical providers, or any combination thereof, with 1of the 4 providers being at a distinct location without common ownership. (C.R.S. §8-43-404(S)(a)(I)(A)).

No – then you have answered one of the prior questions incorrectly.

Legalization of Marijuana in Colorado: Employer Guidelines for Workers’ Compensation Claims

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Legalization of Marijuana in Colorado:

Employer Guidelines for Workers’ Compensation Claims

N. Elizabeth Quick, Esq.

 

On January 1, 2014, Colorado’s legal marijuana dispensaries opened for business following the passage of Amendment 64. Under Amendment 64, persons over the age of twenty-one will be allowed to legally possess up to one ounce of marijuana[1]. However, the Amendment contains a provision for employers, subsection six (6). This provision states, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

 

Despite Colorado legislation, possession and growth of marijuana remains illegal under federal law, and is classified as a Schedule I Controlled Substance under the Federal Controlled Substances Act. Given the conflict between State and Federal Law, how do employers proceed? State laws which conflict with, or are contrary to, federal laws are invalid[2]. However, the Federal Government has been clear that they will not target the dispensaries, or the financial institutions that fund them, so long as the dispensaries comply with Colorado law.

 

We anticipate substantial litigation regarding the constitutionality of Amendment 64. Employees may not be terminated for lawful off-duty conduct. [3] However, due to the fact that marijuana is still illegal under federal law, the Courts have been reluctant to extend the protection of lawful off-duty conduct to marijuana users. In two different decisions, the Courts have affirmed termination and denial of unemployment benefits due to medical marijuana use.[4] These decisions applied specifically to medical marijuana, but we expect similar results once recreational marijuana termination and discriminations claim are filed.

 

We recommend employers update their employee handbooks and policies regarding marijuana usage. Employers may continue to have a no-tolerance policy, or they may adopt a cut-off level that if employees exceed, they will be terminated. As an example of the potential discrimination suits that may follow after the recreational legalization, consider the following real-life example. An employee in good standing was randomly drug tested, and tested positive for a low level of marijuana. He was immediately terminated despite no concern the employee was actually high at work. A different employee at the same employer was charged with his 5th DUI, after testing with a blood alcohol level over .200, and spent 30 days in jail.  He was allowed to keep his job. If you are a local Colorado employer who wishes to have a more tolerant policy, the following guidelines must be followed:

 

  • All employees must be treated exactly the same
  • Establish a THC cut-off level that is acceptable within your organization
  • Revise your employee handbook to include random urine drug screening, to be conducted at regular intervals. All employees must be subject to the testing, and it must occur on a regularly scheduled basis with no exceptions
  • If an employee tests positive, request they immediately present to a certified drug screening lab to undergo a blood test
  • If the blood test shows THC results higher than the established cut-off level for your organization, terminate the employee
  • No exceptions can be made, and strict managerial compliance will be required. If the policy is not followed exactly, a discrimination lawsuit could be filed.

 

Despite the potential for litigation, employers may still use consumption of marijuana as a basis for a safety rule violation or termination for cause in a workers’ compensation claim. The hallucinogenic agent in marijuana is THC, and can be detected at a level of 5ng/mL[5].  THC is stored in the body’s fat, making it possible to detect for up to 13 days[6]. However, only 20% of THC is detectible in a urine screen[7], as the THC has already passed through the body.  If an employer is randomly testing employees for drug use, we recommend urine screens as the standard protocol. The THC present in the drug screen will be sufficient to show use and support a termination for cause defense.

 

However, THC is also detectible in the blood, and blood tests will show the current levels of THC in the employee’s bloodstream; the level of THC intoxication (see footnote 5). While a toxicologist may testify regarding THC levels expected in a “recreational user” versus the THC levels present in a blood sample, there is currently no State recognized level of marijuana intoxication. Despite this oversight in regulation, we recommend employers require employees to submit to a blood test if an accident or safety rule violation has occurred. The practice of employer-required blood tests has repeatedly been upheld by the Courts[8].

 

To prove a safety rule violation, the employer and insurer must show the injury was caused by the employee’s marijuana use[9]. The blood sample will allow the toxicologist to testify regarding how the level of THC in the employee’s blood would have affected job performance at the time of the injury. Common signs of marijuana impairment include: distorted perceptions; impaired coordination; difficulty with thinking and problem solving; and problems with learning and memory[10].

 

In summary, despite the passage of Amendment 64, employers may continue to hold their employees accountable for marijuana use on the job through the safety rule violation and termination for cause provisions of the Workers’ Compensation Act. Again, we strongly recommend employers update their policies regarding the use of medical and recreational marijuana. Please do not hesitate to contact our office so that we may provide additional guidance on this issue on a case by case basis.

 

 

 

 

 



[1] http://www.regulatemarijuana.org/s/regulate-marijuana-alcohol-act-2012

[2] Gibbons v. Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).

[3] C.R.S. § 24-34-402.5(1).

[4] Coats v. Dish Network, LLC, No. 11-cv-1464 (Arapahoe Dist. Ct. Feb.29, 2012), appeal pending; Beinor v. I.C.A.O., 262 P.3d 970 (Colo. App. 2011).

[5] Am J Addict. 2009; 18(3): 185–193.

[6] Drew, M., et al, “The Metabolism of Marijuana.” Achieve Solutions 1999., National Institute on Drug Abuse “Marijuana: Facts for Teens.” Revised March 2008., National Institutes of Health “Workshop on the Medical Utility of Marijuana.” February 1997., National Highway Traffic Safety Administration “Cannabis / Marijuana” Accessed November 2008., NORML “The ABCs of Marijuana and Drug Testing.” Apr 01, 2004.

[7] Huestis, M. A. (2005). “Pharmacokinetics and Metabolism of the Plant Cannabinoids, Δ9-Tetrahydrocannibinol, Cannabidiol and Cannabinol”.Cannabinoids. Handbook of Experimental Pharmacology 168 (168): 657–90.

 

[8] American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir.1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990). Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

[9] C.R.S. § 8-42-112 (1)(a)(b)

[10] http://www.drugabuse.gov/publications/drugfacts/marijuana