Current Legislative Update

WOEMA Legislative Year in Review 2009
by Don Schinske, WOEMA Lobbyist

The chilly economy served to limit policymaking in 2009 as 1) many state legislatures, including California's and others in the West, focused much their efforts on how to cut programs in the face in the huge Budget shortfalls, and 2) policymakers were reluctant to entertain proposals that might have any dampening effect on business and economic activity.

Of all the WOEMA states, Hawaii's legislative year was the most tumultuous for Workers' Compensation. In face of a plummet in rates - premiums have fallen by 65 percent over the past five years - a sweeping package of reforms was proposed this year, and again stalled, with most the bills pushed ahead to 2010. Hawaii legislators did override the Governor's veto of one bill - SB695 SD1 HD 1 CD - which requires employers to continue medical services to injured worker despite disputes over whether treatment should continue, until the Director of Labor and Industrial Relations makes a determination.

In California, only bits of Workers Compensation proposals gained the Governor's signature. These bills included:

AB 1093 (Yamada), which prohibits denial of benefits in cases where a third party injures or kills an employee based solely on the third party's beliefs relating to the employees race, religion, color, sex, age, or other "immutable characteristic." This bill narrowly addresses an instance in which a stranger entered a place of work and killed an employee strictly for racist motives, and employee was denied Workers Comp death benefits. WOEMA opposed a related, more-expansive bill - SB 145 (De Saulnier) - that would have disallowed the age, race, religion, etc. from being considered in apportionment and benefits decisions. WOEMA's position was that some conditions resulting in apportionable permanent impairment are inherently directly related to age, e.g., degenerative musculoskeletal processes, and thus should not be excluded from apportionment considerations.

AB 186 (De Saulnier), which WOEMA supported, repeals the 2009 sunset date for allowing employees to predesignate a personal physician.

Otherwise, WOEMA opposed two bills that would have extended presumptions to specific types of employees. AB 586 (Huber) would have extended the presumption for hernia, blood-borne diseases, and other conditions to UC and CSU police, while AB 664 (Skinner) would have extended the presumption for back injuries and MRSA to all hospital employees. In both cases, WOEMA argued that the extension lacked a scientific basis. Both bills stalled partway through the legislative process, primarily owing to cost concerns.

WOEMA supported AB 933 (Fong), a bill to require that UR physicians be licensed in California Again, concerns about cost and familiarity with California-specific issues slowed the bill's progress, and AB 933 was turned into a "two-year" that will be picked up again in the spring.

In the regulatory arena, the Division of Workers Compensation, after more than a year of deliberation, adopted the ACOEM elbow chapter into the Medical Treatment Utilization Schedule (MTUS), as well as the ODG-based chapter on chronic pain.

Meanwhile, the Division this fall announced plans to revise the Official Medical Fee Schedule (OMFS). For WOEMA, this has been a long-awaited event. This summer, Legislative Committee Co-Chair Steve Schumann, MD, persuaded the CMA's Workers Compensation Technical Advisory Committee to approve a WOEMA proposal asking DWC boost in payment for 10 Evaluation and Management codes. Dr. Schumann and lobbyist Don Schinske conveyed this proposal to DWC chief counsel (and then-acting director) Destie Overpeck in September. We approach 2010 with hope that DWC will finally replace the OMFS with an RBRVS-based (non-Medicare) fee schedule that fairly reimburses Primary Treating Physicians for their cognitive services and reporting. WOEMA's Board of Directors remains committed to participating at the center of discussions on the important area of appropriate payment for physician services.

WOEMA joined in ACOEM's efforts to promote Occupational Medicine within the federal healthcare reform efforts. In April, Legislative Co-Chair Paul Papanek, MD, successfully moved a set of WOEMA policy planks through ACOEM's House of Delegates. In addition, WOEMA issued a Legislative Alert to members, as well as its own letters, urging key Congressional Representatives to support OEM provisions in the reform bills, including the creation of specific funding streams for OEM residencies and other provisions elevating workforce and workplace health.

In other activity, Dr. Papanek and others have entered into discussions with Cal/OSHA around the prospect of revising the State's outdate lead standards for general industry and construction. After discussion with Cal/OSHA officials, WOEMA has agreed to support the departments own initiative to update the standard, rather than submit our own petition. As part of WOEMA's policymaking efforts in 2010, we will be exploring the best ways to approach the OSHA departments in other states with the same request.

 

DWC Presses Ahead on OMFS Revision
Sept. 28, 2009

California's Division of Workers Compensation plans to open the formal rulemaking process for revising the Official Medical Fee Schedule early next year with the intent of adopting a new schedule next summer.

In a meeting Sept. 28 with WOEMA President Steve Schumann, MD, and lobbyist Don Schinske, DWC Chief Counsel Destie Overpeck and staff attorney Jackie Schauer explained that the Division hopes to issue a draft proposal soon after the Lewin Group completes one more update of the report it issued last year. That report calculated how various specialties would be affected by a "dollar-neutral" conversion to an RBRVS-based schedule. The new report will recalculate the values based on the most recent CMS updates.

The DWC officials said that while the new schedule will be based on RBRVS, the methodology underlying Medicare, they have not concluded yet on how many conversion factors will be included. Nor have they concluded that the solution be dollar neutral - that is, that any boost in payment for some codes be offset by reductions in others. At issue too is how extensively to change the Medicare "ground rules" regarding how the coding is applied. However, Schauer did suggest that one rule, the "cascading" of payment downward for multiples of surgical procedures, is a possibility for inclusion.

The DWC rulemaking process will include online comment periods and public hearings. The use of the formal process means the Division will not be relying on extensive stakeholder workgroups to reach a consensus prior to issuing a draft proposal. Indeed, the inability of such workgroups to agree on a proposal helped doomed an earlier overhaul six years ago.

WOEMA requested the meeting to ask that DWC consider boosting payment for the 10 basic Evaluation & Management codes, in the event that a full overhaul was not forthcoming. In making our case for the increase, Dr. Schumann cited the increased amount of reporting required of Primary Treating Physicians since the 2004 reforms, as well as the slow but significant drift of primary care physicians and clinics to urgent care and other lines of business. WOEMA's proposal has been substantially supported by other groups representing PTPs as well as the California Medical Association's Workers Compensation Technical Advisory Committee.

Chief Counsel Overpeck encouraged WOEMA to identify any cost savings, either in medical services or elsewhere in the system that DWC could consider to help offset potential increases. WOEMA will solicit that input in coming weeks. Members should anticipate an announcement as to how to submit their ideas.

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