100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5240

 

Introduced , by Rep. David B. Reis

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 305/8.2

    Amends the Workers' Compensation Act. Requires a recipient of certain pain management medication to sign a written agreement with the prescribing physician agreeing to comply with the conditions of the prescription. Prohibits additional prescriptions while the recipient is noncompliant. Limits the applicability of the lack of pain management as a consideration in awarding benefits. Provides for the disclosure of violations of the agreement upon request by the employer. Requires a prescribing physician to file quarterly reports to obtain payment.


LRB100 19169 JLS 34434 b

 

 

A BILL FOR

 

HB5240LRB100 19169 JLS 34434 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Workers' Compensation Act is amended by
5changing Section 8.2 as follows:
 
6    (820 ILCS 305/8.2)
7    Sec. 8.2. Fee schedule.
8    (a) Except as provided for in subsection (c), for
9procedures, treatments, or services covered under this Act and
10rendered or to be rendered on and after February 1, 2006, the
11maximum allowable payment shall be 90% of the 80th percentile
12of charges and fees as determined by the Commission utilizing
13information provided by employers' and insurers' national
14databases, with a minimum of 12,000,000 Illinois line item
15charges and fees comprised of health care provider and hospital
16charges and fees as of August 1, 2004 but not earlier than
17August 1, 2002. These charges and fees are provider billed
18amounts and shall not include discounted charges. The 80th
19percentile is the point on an ordered data set from low to high
20such that 80% of the cases are below or equal to that point and
21at most 20% are above or equal to that point. The Commission
22shall adjust these historical charges and fees as of August 1,
232004 by the Consumer Price Index-U for the period August 1,

 

 

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12004 through September 30, 2005. The Commission shall establish
2fee schedules for procedures, treatments, or services for
3hospital inpatient, hospital outpatient, emergency room and
4trauma, ambulatory surgical treatment centers, and
5professional services. These charges and fees shall be
6designated by geozip or any smaller geographic unit. The data
7shall in no way identify or tend to identify any patient,
8employer, or health care provider. As used in this Section,
9"geozip" means a three-digit zip code based on data
10similarities, geographical similarities, and frequencies. A
11geozip does not cross state boundaries. As used in this
12Section, "three-digit zip code" means a geographic area in
13which all zip codes have the same first 3 digits. If a geozip
14does not have the necessary number of charges and fees to
15calculate a valid percentile for a specific procedure,
16treatment, or service, the Commission may combine data from the
17geozip with up to 4 other geozips that are demographically and
18economically similar and exhibit similarities in data and
19frequencies until the Commission reaches 9 charges or fees for
20that specific procedure, treatment, or service. In cases where
21the compiled data contains less than 9 charges or fees for a
22procedure, treatment, or service, reimbursement shall occur at
2376% of charges and fees as determined by the Commission in a
24manner consistent with the provisions of this paragraph.
25Providers of out-of-state procedures, treatments, services,
26products, or supplies shall be reimbursed at the lesser of that

 

 

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1state's fee schedule amount or the fee schedule amount for the
2region in which the employee resides. If no fee schedule exists
3in that state, the provider shall be reimbursed at the lesser
4of the actual charge or the fee schedule amount for the region
5in which the employee resides. Not later than September 30 in
62006 and each year thereafter, the Commission shall
7automatically increase or decrease the maximum allowable
8payment for a procedure, treatment, or service established and
9in effect on January 1 of that year by the percentage change in
10the Consumer Price Index-U for the 12 month period ending
11August 31 of that year. The increase or decrease shall become
12effective on January 1 of the following year. As used in this
13Section, "Consumer Price Index-U" means the index published by
14the Bureau of Labor Statistics of the U.S. Department of Labor,
15that measures the average change in prices of all goods and
16services purchased by all urban consumers, U.S. city average,
17all items, 1982-84=100.
18    (a-1) Notwithstanding the provisions of subsection (a) and
19unless otherwise indicated, the following provisions shall
20apply to the medical fee schedule starting on September 1,
212011:
22        (1) The Commission shall establish and maintain fee
23    schedules for procedures, treatments, products, services,
24    or supplies for hospital inpatient, hospital outpatient,
25    emergency room, ambulatory surgical treatment centers,
26    accredited ambulatory surgical treatment facilities,

 

 

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1    prescriptions filled and dispensed outside of a licensed
2    pharmacy, dental services, and professional services. This
3    fee schedule shall be based on the fee schedule amounts
4    already established by the Commission pursuant to
5    subsection (a) of this Section. However, starting on
6    January 1, 2012, these fee schedule amounts shall be
7    grouped into geographic regions in the following manner:
8            (A) Four regions for non-hospital fee schedule
9        amounts shall be utilized:
10                (i) Cook County;
11                (ii) DuPage, Kane, Lake, and Will Counties;
12                (iii) Bond, Calhoun, Clinton, Jersey,
13            Macoupin, Madison, Monroe, Montgomery, Randolph,
14            St. Clair, and Washington Counties; and
15                (iv) All other counties of the State.
16            (B) Fourteen regions for hospital fee schedule
17        amounts shall be utilized:
18                (i) Cook, DuPage, Will, Kane, McHenry, DeKalb,
19            Kendall, and Grundy Counties;
20                (ii) Kankakee County;
21                (iii) Madison, St. Clair, Macoupin, Clinton,
22            Monroe, Jersey, Bond, and Calhoun Counties;
23                (iv) Winnebago and Boone Counties;
24                (v) Peoria, Tazewell, Woodford, Marshall, and
25            Stark Counties;
26                (vi) Champaign, Piatt, and Ford Counties;

 

 

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1                (vii) Rock Island, Henry, and Mercer Counties;
2                (viii) Sangamon and Menard Counties;
3                (ix) McLean County;
4                (x) Lake County;
5                (xi) Macon County;
6                (xii) Vermilion County;
7                (xiii) Alexander County; and
8                (xiv) All other counties of the State.
9        (2) If a geozip, as defined in subsection (a) of this
10    Section, overlaps into one or more of the regions set forth
11    in this Section, then the Commission shall average or
12    repeat the charges and fees in a geozip in order to
13    designate charges and fees for each region.
14        (3) In cases where the compiled data contains less than
15    9 charges or fees for a procedure, treatment, product,
16    supply, or service or where the fee schedule amount cannot
17    be determined by the non-discounted charge data,
18    non-Medicare relative values and conversion factors
19    derived from established fee schedule amounts, coding
20    crosswalks, or other data as determined by the Commission,
21    reimbursement shall occur at 76% of charges and fees until
22    September 1, 2011 and 53.2% of charges and fees thereafter
23    as determined by the Commission in a manner consistent with
24    the provisions of this paragraph.
25        (4) To establish additional fee schedule amounts, the
26    Commission shall utilize provider non-discounted charge

 

 

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1    data, non-Medicare relative values and conversion factors
2    derived from established fee schedule amounts, and coding
3    crosswalks. The Commission may establish additional fee
4    schedule amounts based on either the charge or cost of the
5    procedure, treatment, product, supply, or service.
6        (5) Implants shall be reimbursed at 25% above the net
7    manufacturer's invoice price less rebates, plus actual
8    reasonable and customary shipping charges whether or not
9    the implant charge is submitted by a provider in
10    conjunction with a bill for all other services associated
11    with the implant, submitted by a provider on a separate
12    claim form, submitted by a distributor, or submitted by the
13    manufacturer of the implant. "Implants" include the
14    following codes or any substantially similar updated code
15    as determined by the Commission: 0274
16    (prosthetics/orthotics); 0275 (pacemaker); 0276 (lens
17    implant); 0278 (implants); 0540 and 0545 (ambulance); 0624
18    (investigational devices); and 0636 (drugs requiring
19    detailed coding). Non-implantable devices or supplies
20    within these codes shall be reimbursed at 65% of actual
21    charge, which is the provider's normal rates under its
22    standard chargemaster. A standard chargemaster is the
23    provider's list of charges for procedures, treatments,
24    products, supplies, or services used to bill payers in a
25    consistent manner.
26        (6) The Commission shall automatically update all

 

 

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1    codes and associated rules with the version of the codes
2    and rules valid on January 1 of that year.
3    (a-2) For procedures, treatments, services, or supplies
4covered under this Act and rendered or to be rendered on or
5after September 1, 2011, the maximum allowable payment shall be
670% of the fee schedule amounts, which shall be adjusted yearly
7by the Consumer Price Index-U, as described in subsection (a)
8of this Section.
9    (a-3) Prescriptions filled and dispensed outside of a
10licensed pharmacy shall be subject to a fee schedule that shall
11not exceed the Average Wholesale Price (AWP) plus a dispensing
12fee of $4.18. AWP or its equivalent as registered by the
13National Drug Code shall be set forth for that drug on that
14date as published in Medi-Span Medispan.
15    (a-4) As a condition of receiving pain management that
16requires prescribing a Schedule II, III, or IV controlled
17substance, as provided in the Illinois Controlled Substances
18Act, the injured or disabled patient shall sign a formal
19written agreement with the physician prescribing the Schedule
20II, III, or IV controlled substance acknowledging the
21conditions under which the injured or disabled patient shall
22continue to be prescribed a Schedule II, III, or IV controlled
23substance and agreeing to comply with those conditions. The
24pain management agreement shall outline the risks and benefits
25of opioid use, the conditions under which opioids will be
26prescribed, and the responsibilities of the prescribing

 

 

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1physician and the injured or disabled patient.
2    An agreement made pursuant to this subsection shall be
3reviewed, updated, and renewed every 6 months.
4    (a-4.1) If the injured or disabled patient violates any of
5the conditions of the agreement on more than one occasion, the
6injured or disabled patient's right to pain management through
7the prescription of a Schedule II, III, or IV controlled
8substance under this Act shall be suspended pursuant to
9subsection (d) of Section 19 of this Act until the injured or
10disabled patient becomes compliant with the pain management
11agreement.
12    (a-4.2) For injuries occurring on or after the effective
13date of this amendatory Act of the 100th General Assembly, if
14the violation occurs prior to a finding that the injured
15employee is eligible for benefits as provided in Section 8
16through either a judgment entered by a court, a decision of the
17Commission, or a settlement agreement approved by the
18Commission, the incapacity to work due to lack of pain
19management shall not be considered when determining whether the
20injured employee is entitled to benefits as provided in Section
218.
22    (a-4.3) A physician may disclose the employee's violation
23of the formal written agreement on the physician's own
24initiative. Upon request of the employer, a physician shall
25disclose the employee's violation of the formal written
26agreement provided in this Section.

 

 

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1    (a-4.4) The formal written agreement shall include a notice
2disclosing to the employee in capitalized, conspicuous
3lettering on the face of the agreement the consequences for
4violating the terms of the agreement as provided for in this
5Section.
6    (a-4.5) If an injured employee's pain management benefits
7are terminated pursuant to alleged violations of the formal
8agreement as provided in this Section, the employee may file a
9request for an expedited hearing pursuant to subsection (d) of
10Section 19 of this Act.
11    (a-4.6) Any prescribing physician requiring a written
12agreement with an injured or disabled patient pursuant to this
13Section shall have a rebuttable presumption of non-liability
14under Part 17 of Article II of the Code of Civil Procedure for
15injuries caused by the lack of access to Schedule II, III, or
16IV controlled substances if a violation of the agreement
17results in termination of pain management benefits pursuant to
18this Section.
19    (a-5) As used in this Section, "chronic pain" means pain
20that is unrelated to cancer, that is incident to surgery, and
21that persists beyond the period of expected healing after an
22acute injury episode or is pain that persists beyond 180 days
23following the onset of the pain.
24    (a-5.1) To receive reimbursement for a Schedule II, III, or
25IV controlled substance for chronic pain, the physician seeking
26reimbursement shall submit a written report to the payer not

 

 

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1later than 90 days after the initial Schedule II, III, or IV
2controlled substance prescription fill for chronic pain and
3every 90 days thereafter. The written report shall include all
4of the following:
5        (1) A review and analysis of the relevant prior medical
6    history, including any consultations that have been
7    obtained and a review of data received from an automated
8    prescription drug monitoring program in the treating
9    jurisdiction for identification of past history of
10    narcotic use and any concurrent prescriptions.
11        (2) A summary of conservative care rendered to the
12    injured or disable patient that focused on increased
13    function and return to work.
14        (3) A statement on why prior or alternative
15    conservative measures were ineffective or contraindicated.
16        (4) A statement that the attending physician has
17    considered the results obtained from appropriate
18    industry-accepted screening tools to detect factors that
19    may significantly increase the risk of abuse or adverse
20    outcomes including a history of alcohol or other substance
21    abuse.
22        (5) A treatment plan which includes all of the
23    following:
24            (A) Overall treatment goals, functional progress,
25        and demonstrated progress.
26            (B) Periodic urine drug screens.

 

 

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1            (C) A conscientious effort to reduce pain through
2        the use of non-opioid medications, alternative
3        non-pharmaceutical strategies, or both.
4            (D) Consideration of weaning the injured worker
5        from opioid use including, but not limited to,
6        detoxification.
7    (a-5.2) A provider may bill the additional services
8required for compliance with this Section utilizing CPT
9procedure code 99215 for the initial 90-day report and all
10subsequent follow-up reports at 90-day intervals.
11    (a-5.3) A payor is not required to reimburse and the
12injured or disabled worker is not be liable for the chronic
13pain services if the physician reporting and treatment plan
14requirements pursuant to subsection (a-5.1) are not met. If the
15injured or disabled patient is in the process of weaning or
16weaning has been approved by the payor, denial of reimbursement
17shall occur only after a period of time, as established by
18evidence-based medicine and national guidelines, is provided
19for the weaning of the injured or disabled patient from the
20Schedule II, III, or IV controlled substance medication or
21alternative means of pain management have been offered.
22    (a-6) A payor who denies benefits in compliance with
23subsection (a-4.1) or subsection (a-5.3), performs utilization
24review as provided in Section 8.7, and finds the care to be
25inconsistent with national guidelines and protocols and that
26the prescriber failed to respond to the utilization review

 

 

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1determination with a variance from the standards of care used
2in the utilization review that justifies the care is reasonably
3required and necessary to cure or relieve the effects of his or
4her injury, is rebuttably presumed to have acted in good faith
5and not subject to penalties under subsections (k) and (l) of
6Section 19.
7    The changes made by this amendatory Act of the 100th
8General Assembly apply to injuries on or after the effective
9date of this amendatory Act of the 100th General Assembly.
10Beginning 6 months after the effective date of this amendatory
11Act of the 100th General Assembly, the changes made by this
12amendatory Act of the 100th General Assembly apply to injuries
13incurred prior to the effective date of this amendatory Act of
14the 100th General Assembly.
15    (b) Notwithstanding the provisions of subsection (a), if
16the Commission finds that there is a significant limitation on
17access to quality health care in either a specific field of
18health care services or a specific geographic limitation on
19access to health care, it may change the Consumer Price Index-U
20increase or decrease for that specific field or specific
21geographic limitation on access to health care to address that
22limitation.
23    (c) The Commission shall establish by rule a process to
24review those medical cases or outliers that involve
25extra-ordinary treatment to determine whether to make an
26additional adjustment to the maximum payment within a fee

 

 

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1schedule for a procedure, treatment, or service.
2    (d) When a patient notifies a provider that the treatment,
3procedure, or service being sought is for a work-related
4illness or injury and furnishes the provider the name and
5address of the responsible employer, the provider shall bill
6the employer directly. The employer shall make payment and
7providers shall submit bills and records in accordance with the
8provisions of this Section.
9        (1) All payments to providers for treatment provided
10    pursuant to this Act shall be made within 30 days of
11    receipt of the bills as long as the claim contains
12    substantially all the required data elements necessary to
13    adjudicate the bills.
14        (2) If the claim does not contain substantially all the
15    required data elements necessary to adjudicate the bill, or
16    the claim is denied for any other reason, in whole or in
17    part, the employer or insurer shall provide written
18    notification, explaining the basis for the denial and
19    describing any additional necessary data elements, to the
20    provider within 30 days of receipt of the bill.
21        (3) In the case of nonpayment to a provider within 30
22    days of receipt of the bill which contained substantially
23    all of the required data elements necessary to adjudicate
24    the bill or nonpayment to a provider of a portion of such a
25    bill up to the lesser of the actual charge or the payment
26    level set by the Commission in the fee schedule established

 

 

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1    in this Section, the bill, or portion of the bill, shall
2    incur interest at a rate of 1% per month payable to the
3    provider. Any required interest payments shall be made
4    within 30 days after payment.
5    (e) Except as provided in subsections (e-5), (e-10), and
6(e-15), a provider shall not hold an employee liable for costs
7related to a non-disputed procedure, treatment, or service
8rendered in connection with a compensable injury. The
9provisions of subsections (e-5), (e-10), (e-15), and (e-20)
10shall not apply if an employee provides information to the
11provider regarding participation in a group health plan. If the
12employee participates in a group health plan, the provider may
13submit a claim for services to the group health plan. If the
14claim for service is covered by the group health plan, the
15employee's responsibility shall be limited to applicable
16deductibles, co-payments, or co-insurance. Except as provided
17under subsections (e-5), (e-10), (e-15), and (e-20), a provider
18shall not bill or otherwise attempt to recover from the
19employee the difference between the provider's charge and the
20amount paid by the employer or the insurer on a compensable
21injury, or for medical services or treatment determined by the
22Commission to be excessive or unnecessary.
23    (e-5) If an employer notifies a provider that the employer
24does not consider the illness or injury to be compensable under
25this Act, the provider may seek payment of the provider's
26actual charges from the employee for any procedure, treatment,

 

 

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1or service rendered. Once an employee informs the provider that
2there is an application filed with the Commission to resolve a
3dispute over payment of such charges, the provider shall cease
4any and all efforts to collect payment for the services that
5are the subject of the dispute. Any statute of limitations or
6statute of repose applicable to the provider's efforts to
7collect payment from the employee shall be tolled from the date
8that the employee files the application with the Commission
9until the date that the provider is permitted to resume
10collection efforts under the provisions of this Section.
11    (e-10) If an employer notifies a provider that the employer
12will pay only a portion of a bill for any procedure, treatment,
13or service rendered in connection with a compensable illness or
14disease, the provider may seek payment from the employee for
15the remainder of the amount of the bill up to the lesser of the
16actual charge, negotiated rate, if applicable, or the payment
17level set by the Commission in the fee schedule established in
18this Section. Once an employee informs the provider that there
19is an application filed with the Commission to resolve a
20dispute over payment of such charges, the provider shall cease
21any and all efforts to collect payment for the services that
22are the subject of the dispute. Any statute of limitations or
23statute of repose applicable to the provider's efforts to
24collect payment from the employee shall be tolled from the date
25that the employee files the application with the Commission
26until the date that the provider is permitted to resume

 

 

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1collection efforts under the provisions of this Section.
2    (e-15) When there is a dispute over the compensability of
3or amount of payment for a procedure, treatment, or service,
4and a case is pending or proceeding before an Arbitrator or the
5Commission, the provider may mail the employee reminders that
6the employee will be responsible for payment of any procedure,
7treatment or service rendered by the provider. The reminders
8must state that they are not bills, to the extent practicable
9include itemized information, and state that the employee need
10not pay until such time as the provider is permitted to resume
11collection efforts under this Section. The reminders shall not
12be provided to any credit rating agency. The reminders may
13request that the employee furnish the provider with information
14about the proceeding under this Act, such as the file number,
15names of parties, and status of the case. If an employee fails
16to respond to such request for information or fails to furnish
17the information requested within 90 days of the date of the
18reminder, the provider is entitled to resume any and all
19efforts to collect payment from the employee for the services
20rendered to the employee and the employee shall be responsible
21for payment of any outstanding bills for a procedure,
22treatment, or service rendered by a provider.
23    (e-20) Upon a final award or judgment by an Arbitrator or
24the Commission, or a settlement agreed to by the employer and
25the employee, a provider may resume any and all efforts to
26collect payment from the employee for the services rendered to

 

 

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1the employee and the employee shall be responsible for payment
2of any outstanding bills for a procedure, treatment, or service
3rendered by a provider as well as the interest awarded under
4subsection (d) of this Section. In the case of a procedure,
5treatment, or service deemed compensable, the provider shall
6not require a payment rate, excluding the interest provisions
7under subsection (d), greater than the lesser of the actual
8charge or the payment level set by the Commission in the fee
9schedule established in this Section. Payment for services
10deemed not covered or not compensable under this Act is the
11responsibility of the employee unless a provider and employee
12have agreed otherwise in writing. Services not covered or not
13compensable under this Act are not subject to the fee schedule
14in this Section.
15    (f) Nothing in this Act shall prohibit an employer or
16insurer from contracting with a health care provider or group
17of health care providers for reimbursement levels for benefits
18under this Act different from those provided in this Section.
19    (g) On or before January 1, 2010 the Commission shall
20provide to the Governor and General Assembly a report regarding
21the implementation of the medical fee schedule and the index
22used for annual adjustment to that schedule as described in
23this Section.
24(Source: P.A. 97-18, eff. 6-28-11.)