Florida Senate - 2013                                    SB 1662
       
       
       
       By Senator Grimsley
       
       
       
       
       21-00273-13                                           20131662__
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation; amending s.
    3         440.13, F.S.; prohibiting an employer or carrier from
    4         refusing to authorize a health care provider to treat
    5         an injured employee solely because the health care
    6         provider is also the dispensing practitioner;
    7         authorizing a health care provider to dispense and
    8         fill prescriptions for medicines if the health care
    9         provider who is also the dispensing practitioner
   10         receives authorization from an employer or a carrier
   11         to treat an employee; prohibiting the Department of
   12         Financial Services, an employer, or carrier from
   13         requiring the injured employee to use a specified
   14         pharmacy, pharmacist, or dispensing practitioner;
   15         deleting provisions to conform to changes made by the
   16         act; providing the reimbursement amount for
   17         prescription medications; specifying circumstances
   18         under which a provider is required to give a credit to
   19         the insurance carrier or self-insured employer for
   20         each prescription that costs more than a specified
   21         amount; providing for the deposit of the credit;
   22         requiring the department to recalculate the amount of
   23         the provider rebate; prohibiting a physician or the
   24         physician’s assignee from holding an ownership
   25         interest in a licensed pharmaceutical repackaging
   26         entity or to set or cause to be set a repackaged
   27         pharmaceutical average wholesale price; providing an
   28         effective date.
   29  
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Subsections (3) and (12) of section 440.13,
   33  Florida Statutes, are amended, present subsection (17) is
   34  amended and redesignated as subsection (18), and a new
   35  subsection (17) is added to that section, to read:
   36         440.13 Medical services and supplies; penalty for
   37  violations; limitations.—
   38         (3) PROVIDER ELIGIBILITY; AUTHORIZATION.—
   39         (a) As a condition for to eligibility for payment under
   40  this chapter, a health care provider who renders services must
   41  be a certified health care provider and must receive
   42  authorization from the carrier before providing treatment. This
   43  paragraph does not apply to emergency care. An employer or a
   44  carrier may not refuse to authorize a health care provider to
   45  treat an injured employee solely because the health care
   46  provider is also the dispensing practitioner, as defined in s.
   47  465.0276. The department shall adopt rules to administer
   48  implement the certification of health care providers.
   49         (b) A health care provider who renders emergency care shall
   50  must notify the carrier by the close of the third business day
   51  after it has rendered such care. If the emergency care results
   52  in admission of the employee to a health care facility, the
   53  health care provider shall must notify the carrier by telephone
   54  within 24 hours after initial treatment. Emergency care is not
   55  compensable under this chapter unless the injury requiring
   56  emergency care arose as a result of a work-related accident.
   57  Pursuant to chapter 395, all licensed physicians and health care
   58  providers in this state shall be required to make their services
   59  available for emergency treatment of any employee eligible for
   60  workers’ compensation benefits. To refuse to make such treatment
   61  available is cause for revocation of a license.
   62         (c) A health care provider may not refer the employee to
   63  another health care provider, diagnostic facility, therapy
   64  center, or other facility without prior authorization from the
   65  carrier, except when emergency care is rendered. Any referral
   66  must be to a health care provider that has been certified by the
   67  department, unless the referral is for emergency treatment, and
   68  the referral must be made in accordance with practice parameters
   69  and protocols of treatment as provided for in this chapter.
   70         (d) A carrier shall must respond, by telephone or in
   71  writing, to a request for authorization from an authorized
   72  health care provider by the close of the third business day
   73  after receipt of the request. A carrier who fails to respond to
   74  a written request for authorization for referral for medical
   75  treatment by the close of the third business day after receipt
   76  of the request consents to the medical necessity for such
   77  treatment. All such requests must be made to the carrier. Notice
   78  to the carrier does not include notice to the employer.
   79         (e) Carriers shall adopt procedures for receiving,
   80  reviewing, documenting, and responding to requests for
   81  authorization. Such procedures must shall be for a health care
   82  provider certified under this section.
   83         (f) By accepting payment under this chapter for treatment
   84  rendered to an injured employee, a health care provider consents
   85  to the jurisdiction of the department as provided set forth in
   86  subsection (11) and to the submission of all records and other
   87  information concerning such treatment to the department in
   88  connection with a reimbursement dispute, audit, or review as
   89  provided by this section. The health care provider must further
   90  agree to comply with any decision of the department rendered
   91  under this section.
   92         (g) The employee is not liable for payment for medical
   93  treatment or services provided pursuant to this section except
   94  as otherwise provided in this section.
   95         (h) The provisions of s. 456.053 are applicable to
   96  referrals among health care providers, as defined in subsection
   97  (1), treating injured workers.
   98         (i) Notwithstanding paragraph (d), a claim for specialist
   99  consultations, surgical operations, physiotherapeutic or
  100  occupational therapy procedures, X-ray examinations, or special
  101  diagnostic laboratory tests that cost more than $1,000 and other
  102  specialty services that the department identifies by rule is not
  103  valid and reimbursable unless the services have been expressly
  104  authorized by the carrier, or unless the carrier has failed to
  105  respond within 10 days to a written request for authorization,
  106  or unless emergency care is required. The insurer shall
  107  authorize such consultation or procedure unless the health care
  108  provider or facility is not authorized or certified, unless such
  109  treatment is not in accordance with practice parameters and
  110  protocols of treatment established in this chapter, or unless a
  111  judge of compensation claims has determined that the
  112  consultation or procedure is not medically necessary, not in
  113  accordance with the practice parameters and protocols of
  114  treatment established in this chapter, or otherwise not
  115  compensable under this chapter. Authorization of a treatment
  116  plan does not constitute express authorization for purposes of
  117  this section, except to the extent the carrier provides
  118  otherwise in its authorization procedures. This paragraph does
  119  not limit the carrier’s obligation to identify and disallow
  120  overutilization or billing errors.
  121         (j) Notwithstanding anything in this chapter to the
  122  contrary, a sick or injured employee is shall be entitled, at
  123  all times, to free, full, and absolute choice in the selection
  124  of the pharmacy or pharmacist dispensing and filling
  125  prescriptions for medicines required under this chapter. It is
  126  expressly forbidden for the department, an employer, or a
  127  carrier, or any agent or representative of the department, an
  128  employer, or a carrier, to select the pharmacy or pharmacist
  129  which the sick or injured employee must use; condition coverage
  130  or payment on the basis of the pharmacy or pharmacist utilized;
  131  or to otherwise interfere in the selection by the sick or
  132  injured employee of a pharmacy or pharmacist.
  133         (k) If a health care provider who is also the dispensing
  134  practitioner, as defined in s. 465.0276, receives authorization
  135  from an employer or a carrier to treat an employee pursuant to
  136  paragraph (a), the health care provider may dispense and fill
  137  prescriptions for medicines under this chapter. For purposes of
  138  dispensing and filling prescriptions for medicines, the
  139  department, employer, or carrier, or an agent or representative
  140  of the department, employer, or carrier, may not select the
  141  pharmacy, pharmacist, or dispensing practitioner that the
  142  employee must use.
  143         (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM
  144  REIMBURSEMENT ALLOWANCES.—
  145         (a) A three-member panel is created, consisting of the
  146  Chief Financial Officer, or the Chief Financial Officer’s
  147  designee, and two members to be appointed by the Governor,
  148  subject to confirmation by the Senate, one member who, on
  149  account of present or previous vocation, employment, or
  150  affiliation, is shall be classified as a representative of
  151  employers, the other member who, on account of previous
  152  vocation, employment, or affiliation, is shall be classified as
  153  a representative of employees. The panel shall determine
  154  statewide schedules of maximum reimbursement allowances for
  155  medically necessary treatment, care, and attendance provided by
  156  physicians, hospitals, ambulatory surgical centers, work
  157  hardening programs, pain programs, and durable medical
  158  equipment. The maximum reimbursement allowances for inpatient
  159  hospital care is shall be based on a schedule of per diem rates,
  160  to be approved by the three-member panel no later than March 1,
  161  1994, to be used in conjunction with a precertification manual
  162  as determined by the department, including maximum hours in
  163  which an outpatient may remain in observation status, which may
  164  shall not exceed 23 hours. All compensable charges for hospital
  165  outpatient care are shall be reimbursed at 75 percent of usual
  166  and customary charges, except as otherwise provided by this
  167  subsection. Annually, The three-member panel shall annually
  168  adopt schedules of maximum reimbursement allowances for
  169  physicians, hospital inpatient care, hospital outpatient care,
  170  ambulatory surgical centers, work-hardening programs, and pain
  171  programs. An individual physician, hospital, ambulatory surgical
  172  center, pain program, or work-hardening program is shall be
  173  reimbursed either the agreed-upon contract price or the maximum
  174  reimbursement allowance in the appropriate schedule.
  175         (b) It is the intent of the Legislature to increase the
  176  schedule of maximum reimbursement allowances for selected
  177  physicians effective January 1, 2004, and to pay for the
  178  increases through reductions in payments to hospitals. Revisions
  179  developed pursuant to this subsection are limited to the
  180  following:
  181         1. Payments for outpatient physical, occupational, and
  182  speech therapy provided by hospitals are shall be reduced to the
  183  schedule of maximum reimbursement allowances for these services
  184  which applies to nonhospital providers.
  185         2. Payments for scheduled outpatient nonemergency
  186  radiological and clinical laboratory services that are not
  187  provided in conjunction with a surgical procedure are shall be
  188  reduced to the schedule of maximum reimbursement allowances for
  189  these services which applies to nonhospital providers.
  190         3. Outpatient reimbursement for scheduled surgeries are
  191  shall be reduced from 75 percent of charges to 60 percent of
  192  charges.
  193         4. Maximum reimbursement for a physician licensed under
  194  chapter 458 or chapter 459 is shall be increased to 110 percent
  195  of the reimbursement allowed by Medicare, using appropriate
  196  codes and modifiers or the medical reimbursement level adopted
  197  by the three-member panel as of January 1, 2003, whichever is
  198  greater.
  199         5. Maximum reimbursement for surgical procedures is shall
  200  be increased to 140 percent of the reimbursement allowed by
  201  Medicare or the medical reimbursement level adopted by the
  202  three-member panel as of January 1, 2003, whichever is greater.
  203         (c) As to reimbursement for a prescription medication, the
  204  reimbursement amount for a prescription shall be the average
  205  wholesale price plus $4.18 for the dispensing fee, except where
  206  the carrier has contracted for a lower amount. Fees for
  207  pharmaceuticals and pharmaceutical services shall be
  208  reimbursable at the applicable fee schedule amount. Where the
  209  employer or carrier has contracted for such services and the
  210  employee elects to obtain them through a provider not a party to
  211  the contract, the carrier shall reimburse at the schedule,
  212  negotiated, or contract price, whichever is lower. No such
  213  contract shall rely on a provider that is not reasonably
  214  accessible to the employee.
  215         (c)(d) Reimbursement for all fees and other charges for
  216  such treatment, care, and attendance, including treatment, care,
  217  and attendance provided by any hospital or other health care
  218  provider, ambulatory surgical center, work-hardening program, or
  219  pain program, may must not exceed the amounts provided by the
  220  uniform schedule of maximum reimbursement allowances as
  221  determined by the panel or as otherwise provided in this
  222  section. This subsection also applies to independent medical
  223  examinations performed by health care providers under this
  224  chapter. In determining the uniform schedule, the panel shall
  225  first approve the data which it finds representative of
  226  prevailing charges in the state for similar treatment, care, and
  227  attendance of injured persons. Each health care provider, health
  228  care facility, ambulatory surgical center, work-hardening
  229  program, or pain program receiving workers’ compensation
  230  payments shall maintain records verifying their usual charges.
  231  In establishing the uniform schedule of maximum reimbursement
  232  allowances, the panel must consider:
  233         1. The levels of reimbursement for similar treatment, care,
  234  and attendance made by other health care programs or third-party
  235  providers;
  236         2. The impact upon cost to employers for providing a level
  237  of reimbursement for treatment, care, and attendance which will
  238  ensure the availability of treatment, care, and attendance
  239  required by injured workers;
  240         3. The financial impact of the reimbursement allowances
  241  upon health care providers and health care facilities, including
  242  trauma centers as defined in s. 395.4001, and its effect upon
  243  their ability to make available to injured workers such
  244  medically necessary remedial treatment, care, and attendance.
  245  The uniform schedule of maximum reimbursement allowances must be
  246  reasonable, must promote health care cost containment and
  247  efficiency with respect to the workers’ compensation health care
  248  delivery system, and must be sufficient to ensure availability
  249  of such medically necessary remedial treatment, care, and
  250  attendance to injured workers; and
  251         4. The most recent average maximum allowable rate of
  252  increase for hospitals determined by the Health Care Board under
  253  chapter 408.
  254         (d)(e) In addition to establishing the uniform schedule of
  255  maximum reimbursement allowances, the panel shall:
  256         1. Take testimony, receive records, and collect data to
  257  evaluate the adequacy of the workers’ compensation fee schedule,
  258  nationally recognized fee schedules and alternative methods of
  259  reimbursement to certified health care providers and health care
  260  facilities for inpatient and outpatient treatment and care.
  261         2. Survey certified health care providers and health care
  262  facilities to determine the availability and accessibility of
  263  workers’ compensation health care delivery systems for injured
  264  workers.
  265         3. Survey carriers to determine the estimated impact on
  266  carrier costs and workers’ compensation premium rates by
  267  implementing changes to the carrier reimbursement schedule or
  268  implementing alternative reimbursement methods.
  269         4. Submit recommendations on or before January 1, 2003, and
  270  biennially thereafter, to the President of the Senate and the
  271  Speaker of the House of Representatives on methods to improve
  272  the workers’ compensation health care delivery system.
  273  
  274  The department, as requested, shall provide data to the panel,
  275  including, but not limited to, utilization trends in the
  276  workers’ compensation health care delivery system. The
  277  department shall provide the panel with an annual report
  278  regarding the resolution of medical reimbursement disputes and
  279  any actions pursuant to subsection (8). The department shall
  280  provide administrative support and service to the panel to the
  281  extent requested by the panel.
  282         (17)REIMBURSEMENT FOR PRESCRIPTION MEDICATION.—The
  283  reimbursement amount for prescription medication is the average
  284  wholesale price plus $4.18 for the dispensing fee, unless the
  285  carrier and the provider seeking reimbursement have directly
  286  contracted with each other for a lower reimbursement amount.
  287         (a)If a prescription has been repackaged or relabeled, the
  288  provider shall give a $15 credit to the insurance carrier or
  289  self-insured employer for each prescription that costs more than
  290  $25. The credit must be reflected in the Explanation of Bill
  291  Review provided by the carrier or employer. The credit does not
  292  apply if the carrier and the provider seeking reimbursement have
  293  directly contracted with each other for a lower reimbursement
  294  amount. Any credit to a self-insured employer must be directly
  295  deposited to the self-insurance fund of the entity. Beginning
  296  July 1, 2015, and every 2 years thereafter, the Department of
  297  Financial Services shall recalculate the amount of the provider
  298  rebate based on actual claim data submitted to the department
  299  for the previous 2 years.
  300         (b)A physician or the physician’s assignee may not hold an
  301  ownership interest in a licensed pharmaceutical repackaging
  302  entity and may not set or cause to be set a repackaged
  303  pharmaceutical average wholesale price.
  304         (18)(17)PENALTIES.—A person who fails Failure to comply
  305  with this section violates the provisions shall be considered a
  306  violation of this chapter and is subject to penalties as
  307  provided for in s. 440.525.
  308         Section 2. This act shall take effect July 1, 2013.