KRS 342.035: Administrative regulations -- Medical fee schedule -- Review and updating

-- Action for excess fees -- Effect of failure to submit to or follow surgical or

medical treatment or advice -- Certification to commissioner -- Audit --

Utilization revie w -- Report -- Copies of records -- Practice parameters and

evidence-based guidelines -- Formulary -- Medical fee schedule for registered

nurse first assistants.

(1) Periodically, the commissioner shall promulgate administrative regulations to adopt

a schedule of fees for the purpose of ensuring that all fees, charges, and

reimbursements under KRS 342.020 and this section shall be fair, current, and

reasonable and shall be limited to such charges as are fair, current, and reasonable

for similar treatm ent of injured persons in the same community for like services,

where treatment is paid for by general health insurers. In determining what fees are

reasonable, the commissioner may also consider the increased security of payment

afforded by this chapter. On or before November 1, 1994, and on July 1 every two

(2) years thereafter, the schedule of fees contained in administrative regulations

promulgated pursuant to this section shall be reviewed and updated, if appropriate.

Within ten (10) days of April 4, 1 994, the commissioner shall execute a contract

with an appropriately qualified consultant pursuant to which each of the following

elements within the workers' compensation system are evaluated; the methods of

health care delivery; quality assurance and uti lization mechanisms; type, frequency,

and intensity of services; risk management programs; and the schedule of fees

contained in administrative regulation. The consultant shall present

recommendations based on its review to the commissioner not later than sixty (60)

days following execution of the contract. The commissioner shall consider these

recommendations and, not later than thirty (30) days after their receipt, promulgate

a regulation which shall be effective on an emergency basis, to effect a twenty -five

percent (25%) reduction in the total medical costs within the program.

(2) No provider of medical services or treatment required by this chapter, its agent,

servant, employee, assignee, employer, or independent contractor acting on behalf

of any medic al provider, shall knowingly collect, attempt to collect, coerce, or

attempt to coerce, directly or indirectly, the payment of any charge, for services

covered by a workers' compensation insurance plan for the treatment of a work -

related injury or occupati onal disease, in excess of that provided by a schedule of

fees, or cause the credit of any employee to be impaired by reason of the employee's

failure or refusal to pay the excess charge. In addition to the penalty imposed in

KRS 342.990 for violations of this subsection, any individual who sustains damages

by any act in violation of the provisions of this subsection shall have a civil cause of

action in Circuit Court to enjoin further violations and to recover the actual

damages sustained by the individual , together with the costs of the lawsuit,

including a reasonable attorney's fee.

(3) Where these requirements are furnished by a public hospital or other institution,

payment thereof shall be made to the proper authorities conducting it. No

compensation shall be payable for the death or disability of an employee if his or

her death is caused, or if and insofar as his disability is aggravated, caused, or

continued, by an unreasonable failure to submit to or follow any competent surgical

treatment or medical aid or advice.

(4) The commissioner shall, by December 1, 1994, promulgate administrative

regulations to adopt a schedule of fees for the purpose of regulating charges by

medical providers and other health care professionals for testimony presented and

medical reports furnished in the litigation of a claim by an injured employee against

the employer. The workers' compensation medical fee schedule for physicians, 803

KAR 25:089, having an effective date of February 9, 1995, shall remain in effect

until July 1, 1996, or until the effective date of any amendments promulgated by the

commissioner, whichever occurs first, it being determined that this administrative

regulation is within the statutory grant of authority, meets legislative intent, and is

not in conf lict with the provisions of this chapter. The medical fee schedule and

amendments shall be fair, current, and reasonable and otherwise comply with this

section.

(5) (a) To ensure compliance with subsections (1) and (4) of this section, the

commissioner sha ll promulgate administrative regulations by December 31,

1994, which require each insurance carrier, self -insured group, and self -

insured employer to certify to the commissioner the program or plan it has

adopted to ensure compliance.

(b) In addition, the commissioner shall periodically have an independent audit

conducted by a qualified independent person, firm, company, or other entity

hired by the commissioner, in accordance with the personal service contract

provisions contained in KRS 45A.690 to 45A.725 , to ensure that the

requirements of subsection (1) of this section are being met. The independent

person, firm, company, or other entity selected by the commissioner to

conduct the audit shall protect the confidentiality of any information it

receives during the audit, shall divulge information received during the audit

only to the commissioner, and shall use the information for no other purpose

than the audit required by this paragraph.

(c) The commissioner shall promulgate administrative regulations gove rning

medical provider utilization review activities conducted by an insurance

carrier, self-insured group, or self -insured employer pursuant to this chapter.

Utilization review required under administrative regulations may be waived if

the insurance carri er, self-insured group, or self -insured employer agrees that

the recommended medical treatment is medically necessary and appropriate or

if the injured employee elects not to proceed with the recommended medical

treatment.

(d) Periodically, or upon request , the commissioner shall report to the Interim

Joint Committee on Economic Development and Workforce Investment of the

Legislative Research Commission or to the corresponding standing

committees of the General Assembly, as appropriate, the degree of compliance

or lack of compliance with the provisions of this section and make

recommendations thereon.

(e) The cost of implementing and carrying out the requirements of this subsection

shall be paid from funds collected pursuant to KRS 342.122.

(6) The commissio ner may promulgate administrative regulations incorporating

managed care or other concepts intended to reduce costs or to speed the delivery or

payment of medical services to employees receiving medical and related benefits

under this chapter.

(7) For purposes of this chapter, any medical provider shall charge only its customary

fee for photocopying requested documents. However, in no event shall a

photocopying fee of a medical provider or photocopying service exceed fifty cents

($0.50) per page. However, a medical provider shall not charge a fee when the

initial copy of medical records is provided to the injured worker or his or her

attorney in response to a written request pursuant to KRS 422.317. In addition, there

shall be no charge for reviewing any rec ords of a medical provider, during regular

business hours, by any party who is authorized to review the records and who

requests a review pursuant to this chapter.

(8) (a) The commissioner shall develop or adopt practice parameters or evidence -

based treatment guidelines for medical treatment for use by medical providers

under this chapter, including but not limited to chronic pain management

treatment and opioid use, and promulgate administrative regulations in order

to implement the developed or adopted pr actice parameters or evidenced -

based treatment guidelines on or before December 31, 2019. The

commissioner may adopt any parameters for medical treatment as developed

and updated by the federal Agency for Health Care Policy Research, or the

commissioner ma y adopt other parameters for medical treatment which are

developed by qualified bodies, as determined by the commissioner, with

periodic updating based on data collected during the application of the

parameters.

(b) The commissioner shall develop or adopt a pharmaceutical formulary for

medications prescribed for the cure of and relief from the effects of a work

injury or occupational disease and promulgate administrative regulations to

implement the developed or adopt ed pharmaceutical formulary on or before

December 31, 2018.

(c) Any provider of medical services under this chapter who has followed the

practice parameters or treatment guidelines or formularies developed or

adopted and implemented pursuant to this subsec tion shall be presumed to

have met the appropriate legal standard of care in medical malpractice cases

regardless of any unanticipated complication that may thereafter develop or be

discovered.

(9) (a) Notwithstanding any other provision of law to the cont rary, the medical fee

schedule adopted under subsection (4) of this section shall require all worker's

compensation insurance carriers, worker's compensation self -insured groups,

and worker's compensation self -insured employers to provide coverage and

payment for surgical first assisting services to registered nurse first assistants

as defined in KRS 216B.015.

(b) The provisions of this subsection apply only if reimbursement for an assisting

physician would be covered and a registered nurse first assistant who

performed the services is used as a substitute for the assisting physician. The

reimbursement shall be made directly to the registered nurse first assistant if

the claim is submitted by a registered nurse first assistant who is not an

employee of the hospital or the surgeon performing the services.