New York State Workers’ Compensation Board Proposes Amendment to Medical Fee Schedule Impacting No-Fault Providers

Erin S. Stamper

Introduction

On June 6, 2018, a new medical fee schedule was proposed by the New York State Workers’ Compensation Board (WCB). The Proposed Fee Schedule, which contains the first fee increase since 1996, affects medical, chiropractic, podiatry, and behavioral health, and increases payments to providers by at least 5% overall[1]. The increase may be even higher for providers located in underserviced regions of New York State, i.e. areas with shortages of medical providers authorized to treat injured workers. The Proposed Fee Schedule amends the Ground Rules, Current Procedural Technology (CPT) codes, and Conversion Factors, with the stated purpose of ensuring high quality medical care in the Workers’ Compensation system.[2]

Following the publication of the Proposed Fee Schedule, the New York State Department of Financial Services (DFS) passed an emergency regulation (the 34^th Amendment to Regulation 83) specifying that any increases eventually passed by the WCB will not apply to No-Fault (i.e. to treatment rendered to automobile accident victims) until 18 months after the effective date for injured workers.[3] Notably, the 34^th Amendment to Regulation 83 does not address whether there will be a similar 18 months delay imposed for the Ground Rules amendments, or for the fee decreases proposed for certain CPT codes.

After reviewing the Proposed Fee Schedule and the 34^th Amendment to Regulation 83, the Firm seeks to highlight a few noteworthy changes in the Proposed Fee Schedule, including the impact of the 18 months delay—for increases only—to No-Fault. By no means does this article constitute an exhaustive review of the Proposed Fee Schedule, and the impact it will have on No-Fault providers, if enacted in its current form. To review the entire Proposed Fee Schedule, including the Guidelines and CPT Codes, the Firm directs the reader to the WCB’s website: http://www.wcb.ny.gov/content/main/hcpp/FeeSchedules.jsp.

The Positive

First and foremost, the Regional Conversion Factors, across all provider types, have increased under the Proposed Fee Schedule, necessarily raising expected reimbursement rates. With that being said, the current Relative Value Unit (RVU) limit will remain intact. The following examples are provided to demonstrate the additional monies that the Firm’s clients can expect to receive for certainly commonly billed modalities, if the Proposed Fee Schedule is passed in its current form[4]:

Example 1—Under the Medical Fee Schedule, Physical Medicine, Ground Rules 8 and 11, the maximum reimbursement limitations per day for modalities is 8.0 RVUs, re-evaluation plus modalities is 11.0 RVUs, and initial evaluation plus modalities is 13.5 RVUs. Below is the maximum reimbursement allowed under the current fee schedule rate versus the proposed fee schedule rate, for physician-owned practices, located in Region IV:

Current Rate: (8 RVU’s): $67.60; (11 RVUs): $92.95; (13.5 RVUs): $114.06

Proposed Rate: (8 RVU’s): $83.84; (11 RVUs): $115.28; (13.5 RVUs): $141.48

Example 2—Under the Chiropractic Fee Schedule, Ground Rules 1(a) and 2, the maximum reimbursement limitations per day for modalities is 8.0 RVUs, re-evaluation plus modalities is 11.0 RVUs, and initial evaluation plus modalities is 13.5 RVUs. Below is the maximum reimbursement allowed under the current fee schedule rate versus the proposed fee schedule rate in Region IV:

Current Rate (8 RVU’s): $46.24; (11 RVUs): $63.58; (13.5 RVUs): $78.03

Proposed Rate (8 RVU’s): $57.36; (11 RVUs): $78.87; (13.5 RVUs): $96.80

Second, the Proposed Fee Schedule also expands the list of practitioners, whose services are compensable. Under the Proposed Fee Schedule, Ground Rule 11, medical services rendered by either a Physician’s Assistant (PA) or Nurse Practitioner (NP), are now reimbursable so long as the responsible physician is readily available for consultation (either in-person or by phone) and is available to provide in-person assistance when needed or in an emergency. With respect to an initial examination only, the PA or NP must discuss the findings of the examination with the responsible physician prior to instituting a treatment plan, in order for the services to be reimbursable.

The Negative

While an overall 5% increase in charges has been proposed, the WCB has also proposed the elimination of certain CPT codes and reductions to the RVU’s of other CPT Codes. The elimination and/or reduction of certain CPT Codes will most negatively impact physicians, chiropractors, and ambulatory surgery centers (ASC) involved with the performance of the following services:

(a) electrodiagnostic (EDX) testing;

(b) manipulations under anesthesia (MUA); and

(c) range of motion testing (ROM) and manual muscle testing (MMT).

For EDX testing (CPT Codes 95907-95913), there is a 50-63% reduction in the fees proposed.

With respect to MUA, it would appear that the WCB is attempting to stop both physicians and chiropractors from performing these procedures, which are legally within their scope of practice in New York State, since the Proposed Fee Schedule gives CPT code 22505 (spinal) an RVU of “0” and completely eliminates CPT code 97194 (pelvis). Additionally, the new Chiropractic Ground Rule No. 10 prohibits chiropractors from using CPT codes outside of their own Fee Schedule, thereby eliminating a chiropractor’s ability to perform MUA, as the codes which they currently use to bill MUA, are listed in the Medical Fee Schedule, and not the Chiropractic Fee Schedule.

For ROM (CPT Codes 95851 and 95852) and MMT (CPT Codes 95831 and 95832), the new Chiropractic Ground Rule No. 10 would prevent chiropractors from performing and being reimbursed this testing, as the codes currently used by chiropractors to bill these services are only listed in the Medical Fee Schedule.

Conclusion

While the 5% overall fee increase set forth in the Proposed Fee Schedule would raise expected reimbursement rates for a multitude of providers, the elimination and/or reduction of certain CPT Codes would also negatively impact certain physicians, chiropractors, and ASCs, specializing in the performance EDX, MUA, ROM and MMT testing. If enacted, these providers would see a crippling reduction in revenue, which would not be offset by any fee increases for a period of 18 months (i.e. the delay set forth in the 34^th Amendment to Regulation 83).

The foregoing constitutes an initial brief overview of the impact of the Proposed Fee Schedule on the Firm’s No-Fault clients. The Firm’s comments are applicable if and only if the Proposed Fee Schedule is eventually implemented in its current form, which is an uncertainty at this juncture. It is the Firm’s understanding that the WCB has received numerous comments from both provider trade groups and insurers, which may affect whether or not the Proposed Fee Schedule will be implemented in its current form, if at all. The Firm will provide additional updates as they are made available. In the interim, the Firm encourages its clients to speak directly with their billing and coding professionals to obtain a more in depth understanding of all the services which would be impacted by the Proposed Fee Schedule if it were to be implemented in its current form.