2022 Legislative Updates

2022 Legislative Update

There were several legislative changes this session impacting workers’ compensation claims handling in Colorado.

 

HB22-1354: Protection of Claimant’s Mental Health Records  – Effective: June 9, 2022

This bill involves a significant change in the requirements of handling an injured workers’ mental health records and became effective immediately on June 9, 2022. It prohibits disclosure of mental health records by an insurer to a 3rd party that is not necessary for medical evaluation, adjustment, or adjudication of a claim. These include substance abuse and abuse disorder records and DIME and IME reports that contain such information.

The bill also limits disclosures of mental health records to employer. The insurer may inform employers of work restrictions but cannot otherwise disclose mental health records to them. The records should be removed from an FAL that may include them. Self-insured  employers are to keep separate and secure files containing mental health records and establish policies and training to comply with the requirements.

 

HB22-1347: Consent Bill – Effective: 8/10/2022 – Involves claims with a date of injury on or after 8/10/2022

Mileage: For round-trips over 100 miles to doctor visits, a claimant can make a written request for prepayment of mileage expenses due within 7 calendar days of the request. If claimant is prepaid mileage and does not show up to that doctor visit, then the only remedy for respondents is that the prepayment will be credited to future mileage requests. It will not be allowed to offset any indemnity benefits as mileage is considered a medical benefit.

 

Scheduled Impairments: For injuries that can be scheduled or nonscheduled, if a scheduled impairment rating results in a higher PPD award than the whole person impairment rating would, then respondents must admit to the scheduled impairment rating on the final admission.

 

Funeral Benefits: The statutory cap on funeral benefits has been raised from $7,000 to $12,500 and will be adjusted accordingly each year by Director’s Order. There is also no longer a requirement that the funeral expenses be “reasonable.”

 

Medical Only Claim Reporting Requirement: Claims for medical benefits only must be reported to the Division if there has been 180 days of active medical treatment. Active medical treatment does not include a gym membership or an at-home workout program. It is to involve treatment supervised by an ATP but has not otherwise been defined. The bill is not clear whether this includes claims where there has been no treatment for several months and then the claimant seeks treatment on the 180th day. We recommend contacting us for legal analysis on a case-by-case basis if you come across this issue.

 

HB22-1112: Notice of Injury  – Effective: 8/10/2022

Claimant Report of Injury: This bill changed the time for the claimant to report the injury to the employer from 4 to 10 days.

 

Employer to Keep Record of the Written Report of Injury: To assert the penalty of one day’s compensation for each day failure to report the injury, the employer will have to have retained a copy of the written notice of injury. The employer is to affix the date and time notice was received and make it available to the injured worker within 7 days.

 

Notice to Employees Poster: The bill also changed the notice that an employer is required to post in the workplace including the change to 10-day reporting requirement. The poster must be at least 14 inches high and at least 11 inches wide and the font must also be 1/2″. An example of the poster can be found on the Division website https://codwc.app.box.com/s/v0mr2xp8jvxkbfjbgb23vk1if18pi0xz . You can contact customer service at 1-888-390-7936 or by email cdle_wccustomer_service@state.co.us and order a poster for $10, plus shipping.

 

HB22-1262 – Sunset Continue WC Regulations – Effective: 4/12/2022

The bill Continues the ability of the Director to settle second offense penalties for failure to insure. This bill doesn’t change anything significant, just highlights the continuation of certain powers held by the Director.

 

SB22-035 – Coverage Levels for Occupational Accident Insurance – Effective: 8/10/2022

This bill was necessary to clarify issues concerning provisions  in the Colorado Motor Carrier Act regarding the definition of “similar coverage” to allow a company to provide accident coverage to CDL drivers outside of the W.C. Act.  The main change in the Act provides for an owner of a commercial vehicle to elect occupational accident insurance in lieu of workers’ compensation insurance provided the occupational accident insurance has an aggregate limit of at least $1,500,000.

 

As always, if you have any questions, please contact one of the attorneys at Brown Gren Abraham & McCracken, LLC.

2021 Workers’ Compensation Rule and Statute Updates

Spring is in the air – it must be time for Colorado legislative and Division of Workers’ Compensation updates.  As always, we are here to ensure you are aware of and understand them all.  Below is our review of the April 30th changes, the upcoming changes effective July 1st, as well as proposed legislation. 

Round 1. Rules first:

Rule 2: Workers’ Compensation Insurance Premium and Payroll Surcharge (EFFECTIVE 7/1/21)

Last year, Of Counsel Frank Cavanaugh pointed this rule out, as an approved rate reduction in “loss costs” had occurred. This year it again went down.   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 4: Carrier Compliance (EFFECTIVE 4/30/21)

4-1(A): The changes in this section are primarily removing language and have little practical effect; however, it is important to understand the content. Believe it or not, some of the terminology throughout the rules did not match.  So efforts were made to apply clarity.

4-1(C): In this section again, language was removed, and it was clarified that fines can be imposed if the carrier does not meet 90% or higher compliance in each of the 10 categories audited.

4-1(D): The change under this section requires that after the carrier receives the preliminary audit they may request an extension of time beyond the 30-day time frame  to disagree with the findings. The request, however, must be submitted in writing within the 30 calendar days from receipt of the report to respond. If the response is not submitted in writing, it will be considered a “waiver of the right” to file a disagreement with the audit.

There were some additional changes under this section; however, these changes were not substantive.

4-2Fines for Claims Audits

4-2(E): The change to this section removed the fines per audit deficiency per compliance category. The rule provides for a fine for deficiencies in each category; however, they removed the increased fine for “subsequent finable occurrences”.

 

Rule 5: Claims Adjusting Requirements (EFFECTIVE 7/1/2021)

 5-1:  Completion of Division Forms

 5-1(D): This was an added section requiring electronic filing. It specifies that there can only be one file per electronic submission and all attachments must be included. You must include the claimant’s first and last name and the type of document being filed with a certificate of the date it was submitted. It is specific that admissions, petitions to modify, terminate, suspend, request for lump sum payments, and motions to close for lack of prosecution must be sent to  CDLE_DOWC_FILINGS@STATE.CO.US.  It also formalized a requirement recently added that all motions to close must have email addresses for all parties or they are to be submitted via regular mail.

All motions, other than those to close a file, and submissions for prehearings and settlements must be submitted to CDLE_DOWC_PREHEARINGS@STATE.CO.US. All other communications are to be submitted to CDLE_WORKERS_COMPENSATION@STATE.CO.US.

 

5-2: Filing of Employers First Report of Injury

5-2(B)(1): This change requires the filing of a First Report of Injury within 3 days of notice to the insurance carrier or the self-insured when a fatality occurs, or when 3 or more employees are injured in the same accident.

5-2(B)(2): Language was added to emphasize that a First Report of Injury must be filed no more than 10 days after notice to an employer or self-insured of an occupational disease resulting in lost time from work in excess of 3 shifts or calendar days, occurrence of permanent physical impairment, or contraction of a specified occupational disease.

 

 5-5(A): Admissions of Liability

 The language changed to specifically require that the narrative report and the worksheets should include a statement from the authorized treating physician regarding the date of maximum medical improvement, permanent impairment, and the need for maintenance medical benefits. Under paragraph (1), if maintenance medical benefits are being denied,  a reference must be made to the date of the medical report which supports your denial, along with the physician’s name. The DOWC has already changed the FAL forms. Under paragraph (3) (dealing with medical-only claims that have been reported to the Division), if no impairment, either a narrative report or the physicians report of workers’ compensation injury form can be used as long as they are attached.

 

5-8: Admission for Permanent Total Disability Benefits

In this section (B)(2) was removed, which required receipt or proof of payment of compensation to the claimant through the date of death.

 

5-9: Revising Final Admissions

 The change to this rule removed paragraph (C), which dealt with admissions of liability on or after July 1, 1991- and before August 5, 1998. This change appears to be more housekeeping in nature.

 

Rule 6: Modification, Termination or Suspension of Temporary Disability Benefits  (EFFECTIVE 7/1/2021)

The changes in this rule are to clarify terminology. Under paragraph 6-1(A)(2), there was a change from the term “regular employment”  to “full or regular duty.”  Paragraph 6-1 (A)(3)  changed “report” to “Statement” and added language regarding claimant returning to work “at full wages and hours.”  The other changes clarified language but did not substantively change the rule.

 

6-4: Suspension, Modification or Termination of Temporary Disability Benefits by Petition

The significant change in this rule is under paragraph (B). When retroactively decreasing temporary benefits but with a previously filed admission of liability, the petition must be filed within 30 days of the original admission and this process cannot be used for a safety rule violation. The right to set a hearing remains and is usually needed for the denial of the petition.

 

7-1: Closure of Claims and Petitions to Reopen (EFFECTIVE 7/1/2021)

7-1(C)(1):  This was added confirming the Division’s position that they will not allow case closure for failure to prosecute if a claimant is receiving temporary disability benefits. Under paragraph (2), they have also emphasized the motions or petitions to close can be submitted via email if there are email addresses for all parties. If not, they are to be filed by mail.

 

7-2: Petitions to Reopen

The change in this rule outlines that the process to reopen a claim is by filing an application for hearing endorsing the issue of reopening. It effectively took away the process of a petition to reopen on a standard Division form.

 

Round 2. Legislation:

Legislation is a yearly struggle, given the makeup of the legislature in Colorado. We see a continual battle to shift the control of claims to the claimants which, of course means, to their attorneys. Each year there are behind-the-scenes negotiations to try to compromise what could be drastic changes, and this year is no exception.

 

SB21-096: Sunset Workers’ Compensation Classification Appeals Board

Most of you would not be involved with this process. This board was set up to hear grievances brought by employers against insurers concerning the calculation of experience modification factors and classification assignment decisions. This board was due to expire and it has now been continued with clarification. This was signed by the Governor on April 15, 2021 and is the law.

 

HB21-1213: Conversion of Pinnacol Assurance

This bill was introduced to change Pinnacol from a political subdivision of the state to a stock insurance company. It is now postponed indefinitely.

 

HB21-1207: Overpayment of Workers’ Compensation Benefits

There has been a push through legislative actions and through the case law to dramatically alter the ability of respondents to collect overpayment of benefits. This bill defines overpayment in a very restrictive manner, to include only benefits paid as a result of fraud, or duplicate benefits that are resultant of offsets regarding disability or death benefits. It does still allow for offsetting and taking credit for any indemnity benefits paid beyond the date of MMI. If the error was a miscalculation issue, it can be remedied within the 30 days allowed for an objection to the admission. This bill is still under consideration.

 

HB21-1050 Workers’ Compensation

 This bill has been referred to as the compromise bill. There are some major inclusions, which in the past have given flexibility, but now the outcome is defined.

  1. In the present form, if passed, the bill will require appointment of Guardian ad litem and conservators to the list of medical aid that an employer must furnish.
  2. This bill also limits credit for Social Security benefits to those benefits which the claimant was not receiving at the time of injury. In the past, we have been able to take credit for SSDI benefits even though they were being received at the time of injury.
  3. The ability to take apportionment against TTD, TPD and medical benefits is gone. The ability to reduce PPD and PTD is still at issue.
  4. There are also specific limitations when selecting IME physicians.
  5. One of the more drastic changes that will affect benefits is changing the percent of impairment needed to exceed the first PPD cap from 25% to 19%.
  6. Respondents will now be unable to withdraw an Admission of Liability when two years have passed from the admission, with the exception of fraud.
  7. For the purpose of appeals, this bill would require the Director or the ALJ to award benefits when compensability or liability are at issue. This does help respondents, as claimants can’t get an order that a case is compensable and prevent an appeal of that decision as the ALJ didn’t order benefits paid. There are also discussions regarding appeals, orders, and the review process.
  8. The amount that a claimant must earn for respondents to reopen a prior determination of PTD is increased from $4,000 to $7,500.
  9. The claimant will now have to submit mileage reimbursement within 120 days and the carrier has 30 days to pay or dispute.

This bill is currently still being considered so the final version is unknown.

 

SB21-197: Workers’ Compensation Physician

This bill is probably the most dangerous of them all. Over the past several years, claimants’ bar has pushed to reduce and change respondents’ ability to control medical care. This bill, if enacted, will give all control of choice of physician to the claimant.

The current designation of physician process would be gone. The employer would have 7 business days after notice of the injury to give the employee or claimant an authorized physician designation form developed by the Director. At that point, the claimant would be able to designate any level I or level II accredited physician as the authorized treating physician. They are able to make this designation up until the time they reach MMI. The claimant can also make a request to have his/her personal physician or chiropractor be the treating physician. If the treating physician will no longer treat the claimant, the insurer or self-insured must advise the claimant that they need to choose a new physician.

This bill is currently in the Senate Business, Labor, and Technology Committee so the final version is unknown.

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

 

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 us.