Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-14-095.

     Title of Rule and Other Identifying Information: Amending chapter 296-20 WAC, Medical aid rules. SSB 5801 (chapter 6, Laws of 2011) amends RCW 51.36.010. SSB 5801 directs the department of labor and industries (L&I) to establish a health care provider network to treat injured workers of employers insured with L&I and of self-insured employers and to expand the centers for occupational health and education (COHEs). Rules are necessary to implement the changes required in SSB 5801. This third rule-making phase is proposed to ensure that existing department rules do not conflict or create confusion with the network implementation.

     Hearing Location(s): Department of Labor and Industries Tumwater Building, Room S117, 7273 Linderson Way S.W., Tumwater, WA 98501, on September 28, 2012, at 3 p.m.

     Date of Intended Adoption: November 13, 2012.

     Submit Written Comments to: Jami Lifka, Department of Labor and Industries, Office of the Medical Director, P.O. Box 44321, Olympia, WA 98501 OR e-mail Jami.Lifka@Lni.wa.gov OR fax (360) 902-6315 and received no later than 5 p.m. September 28, 2012.

     Assistance for Persons with Disabilities: Contact office of information and assistance by September 1, 2012, TTY (360) 902-5797 or (360) 902-4941.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This is the third rule-making phase being proposed to successfully establish and implement the intent of SSB 5801.

     (1) The first rule-making phase adopted minimum standards for credentials of health care providers in the statewide health care provider network and to clarify what constitutes patterns of risk of harm or death that determines L&I may remove a provider from the network or take other appropriate action.

     (2) The second rule-making process amended existing rules to allow injured and ill workers to see a provider of their choice for the initial visit and to inform health care providers and workers when care must be transferred to a network provider.

     (3) This third rule-making is necessary to address existing department rules that may conflict with the network implementation. Changes to the following WACs are proposed for consistency or clarification: WAC 296-20-01010, 296-20-01020, 296-20-02705, and 296-20-03015.

     Reasons Supporting Proposal: This third rule making is necessary so that health care providers, state fund, employers, and injured and ill workers have a clear understanding of this new health care provider network and their rights and requirements under SSB 5801.

     Statutory Authority for Adoption: SSB 5801 (as it amends

RCW 51.36.010), RCW 51.04.020, and 51.04.030.

     Statute Being Implemented: RCW 51.36.010.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Governor Gregoire, 2011 legislators, the governor's interim workgroup made up of representatives of state fund and self-insured businesses and workers, L&I, private, public, and governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Leah Hole-Curry, Medical Administrator, Office of the Medical Director, (360) 902-4996; and Enforcement: Beth Dupre, Assistant Director for Insurance Services, (360) 902-4209.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department did not prepare a small business economic impact statement because it determined that the proposed rules will not have a disproportionate impact on small businesses.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Leah Hole-Curry, Department of Labor and Industries, P.O. Box 44321, Olympia, WA 98504-4321, phone (360) 902-4996, fax (360) 902-6315, e-mail Leah.Hole-Curry@Lni.wa.gov.

August 21, 2012

Judy Schurke

Director

OTS-4969.1

AMENDATORY SECTION(Amending WSR 12-02-058, filed 1/3/12, effective 2/3/12)

WAC 296-20-01010   Scope of health care provider network.   (1) The rules establish the development, enrollment, and oversight of a network of health care providers approved to treat injured workers. The health care provider network rules apply to care for workers covered by Washington state fund and self-insured employers.

     (2) As of January 1, 2013, the following types of health care providers (hereafter providers) must be enrolled in the network with an approved provider agreement to provide and be reimbursed for care to injured workers in Washington state beyond the initial office or emergency room visit:

     (a) Medical physicians and surgeons;

     (b) Osteopathic physicians and surgeons;

     (c) Chiropractic physicians;

     (d) Naturopathic physicians;

     (e) Podiatric physicians and surgeons;

     (f) Dentists;

     (g) Optometrists;

     (h) Advanced registered nurse practitioners; and

     (i) Physician assistants.

     (3) The requirement in subsection (2) of this section does not apply to providers who practice exclusively in acute care hospitals or within inpatient settings in the following specialties:

     (a) Pathologists;

     (b) Consulting radiologists working within a hospital radiology department;

     (c) Anesthesiologists or certified registered nurse anesthetists (CRNAs) except anesthesiologists and CRNAs with pain management practices in either hospital-based or ambulatory care settings;

     (d) Emergency room providers; or

     (e) Hospitalists.

     (4) The department may phase implementation of the network to ensure access within all geographic areas. The director of the department shall determine, at his/her discretion, whether to establish or expand the network, after consideration of the following:

     • The percent of injured workers statewide who have access to at least five primary care providers within fifteen miles, compared to a baseline established within the previous twelve months;

     • The percent of injured workers by county who have access to at least five primary care providers within fifteen miles, compared to a baseline established within the previous twelve months; and

     • The availability within the network of a broad variety of specialists necessary to treat injured workers.

     The department may expand the health care provider network scope to include additional providers not listed in subsection (2) of this section, listed in subsection (3) of this section, and to out-of-state providers. For providers outside the scope of the health care provider network rule, the department and self-insured employers may reimburse for treatment beyond the initial office or emergency room visit.

[Statutory Authority: RCW 51.36.010, 51.04.020, and 51.04.030. 12-02-058, § 296-20-01010, filed 1/3/12, effective 2/3/12.]

     (2) The department will notify providers of incomplete applications, including when credentialing information obtained from other sources materially varies from information on the provider application. The provider may submit a supplement to the application with corrections or supporting documents to explain discrepancies within thirty days of the date of the notification from the department. Incomplete applications will be considered withdrawn within forty-five days of notification.

     (3) The provider must produce adequate and timely information and timely attestation to support evaluation of the application. The provider must produce information and respond to department requests for information that will help resolve any questions regarding qualifications within the time frames specified in the application or by the department.

     (4) The department's medical director or designee is authorized to approve, deny, or further review complete applications consistent with department rules and policies. Providers will be notified in writing of their approval or denial, or that their application is under further review within a reasonable period of time.

     (5) Providers who meet the minimum provider network standards, have not been identified for further review, and are in compliance with department rules and policies, will be approved for enrollment into the network.

     (6) Enrollment of a provider is effective no earlier than the date of the approved provider application. The department and self-insured employers will not pay for care provided to workers prior to application approval, regardless of whether the application is later approved or denied, except as provided in ((this)) subsection (7) of this section.

     (7) The department and self-insured employers may pay a provider without an approved application only when:

     (a) The provider is outside the scope of the provider network per WAC 296-20-01010; or

     (b) The provider is provisionally enrolled by the department after it obtains:

     (i) Verification of a current, valid license to practice;

     (ii) Verification of the past five years of malpractice claims or settlements from the malpractice carrier or the results of the National Practitioner Data Bank (NPDB) or Healthcare Integrity and Protection Data Bank (HIPDB) query; and

     (iii) A current and signed application with attestation.

     (c) A provider may only be provisionally enrolled once and for no more than sixty calendar days. Providers who have previously participated in the network are not eligible for provisional enrollment.

[Statutory Authority: RCW 51.36.010, 51.04.020, and 51.04.030. 12-02-058, § 296-20-01020, filed 1/3/12, effective 2/3/12.]

     (2) The department may develop treatment or diagnostic guidelines to improve outcomes for workers receiving covered health services. As appropriate to the subject matter, the department may develop these guidelines in collaboration with the ((department's formal advisory)) following committees:

     • The industrial insurance medical advisory committee;

     • The industrial insurance chiropractic advisory committee.

     • The Washington state pharmacy and therapeutics committee.

     • The Washington state health technology assessment clinical committee.

     (3) In the process of implementing these guidelines, the department may find it necessary to make a formal medical coverage decision on one or more of the treatment or diagnostic options. The department, not the advisory committees, is responsible for implementing treatment guidelines and for making coverage decisions that result from such implementation.

     (4) Network providers are required to follow the department's evidence-based coverage decisions, treatment guidelines, and policies.

[Statutory Authority: 2007 c 282, RCW 51.04.02 [51.04.020], 51.04.030. 08-02-020, § 296-20-02705, filed 12/21/07, effective 1/21/08. Statutory Authority: RCW 51.04.020, 70.14.050. 04-08-040, § 296-20-02705, filed 3/30/04, effective 5/1/04. Statutory Authority: RCW 51.04.020 and 51.04.030. 00-01-037, § 296-20-02705, filed 12/7/99, effective 1/8/00.]

     • Notify the attending ((physician)) provider of concerns regarding the medications such as drug interactions, adverse reactions, prescriptions by other providers;

     • Require that the attending ((physician)) provider send a treatment plan addressing the drug concerns;

     • Request a consultation from an appropriate specialist;

     • Request that the attending ((physician)) provider consider reducing the prescription, and provide information to the injured worker on chemical dependency programs, if indicated;

     • Limit payment for drugs on a claim to one prescribing ((doctor)) provider.

     (2) If the attending ((physician)) provider or worker does not comply with these requests, or if the probability of imminent harm to the worker is high, the department or self-insurer may discontinue payment for the drug after adequate prior notification has been given to the worker, pharmacy and physician.

     (3) ((Physician)) Provider failure to reduce or terminate prescription of controlled substances, habit forming or addicting medications, or dependency inducing medications, after department or self-insurer request to do so for an injured worker may result in a transfer of the worker to another ((physician)) network provider of the worker's choice. (See WAC 296-20-065.)

     (4) Other corrective actions, up to and including removal from the provider network, may be taken in accordance with WAC 296-20-015, Who may treat, and WAC 296-20-01100, Risk of harm.

[Statutory Authority: RCW 51.04.020 and 51.04.030. 00-01-040, § 296-20-03015, filed 12/7/99, effective 1/20/00.]