WSR 19-02-091
[Filed January 2, 2019, 10:55 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-18-076.
Title of Rule and Other Identifying Information: Acupuncture, WAC 296-20-01505 Provider types and services not covered, 296-20-03002 Treatment not authorized, and 296-23-238 Acupuncture rules.
Hearing Location(s): On February 5, 2019, at 1:00, at the Department of Labor and Industries (L&I) Headquarters, 7273 Linderson Way S.W., Room S118, Tumwater, WA 98501.
Date of Intended Adoption: April 30, 2019.
Submit Written Comments to: Jami Lifka, L&I, Office of the Medical Director, P.O. Box 44321, Olympia, WA 98504-4321, 7273 Linderson Way S.W., Tumwater, WA 98501, email, fax 360-902-6315, by February 5, 2019.
Assistance for Persons with Disabilities: Contact Jami Lifka, phone 360-902-4941, fax 360-802-6315 [360-902-6315], TTY 711 for 360-902-4941, email, by January 11, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal will allow the department and self-insurers to pay for acupuncture as specified in WAC 296-23-238. When this rule is effective, the acupuncture medical coverage decision's approved conditions will only list "low back pain related to an accepted condition on the claim." Other conditions may be considered at a later date based on the best available scientific and clinical evidence. In addition, the proposed rules will allow acupuncturists, including East Asian medicine practitioners (EAMP), to treat injured workers. EAMPs have fifteen different treatment modalities within their scope of practice (RCW 18.06.010). These proposed rule changes will only apply to acupuncture.
Under Title 51 RCW, treatment allowed on workers' compensation claims must be curative or rehabilitative. As with other treatment used to help injured and ill workers to heal, acupuncture focuses on recovery from workplace injury, functional improvement, and return to work.
L&I used a pilot project as authorized by RCW 34.05.313 to determine how acupuncture treatment can best be incorporated into the workers' compensation setting. Current rules state that the department or self-insurer will not allow nor pay for acupuncture (WAC 296-20-03002) and will not pay for services performed by acupuncturists (WAC 296-20-01505). Under the pilot, these current provisions related to acupuncture and acupuncturists have been waived for pilot participants. Pilot program results have been considered in developing this proposed rule language. The pilot will continue until the adoption and effective date of final rules, after which time the criteria in the proposed rule language will take effect. Acupuncture treatment may then be administered by any L&I provider acting within the scope of their licensure.
Reasons Supporting Proposal: L&I previously reviewed the best available scientific and clinical evidence related to the efficacy and safety of acupuncture and concluded that acupuncture may be effective for treating low back pain. The goal for this pilot is to collect information in order to inform the provision of acupuncture treatment for low back pain to injured workers covered by Washington's workers' compensation system. Data being gathered through the course of the pilot includes functional questionnaires, billing data, and discharge reasons. Through over one year of data gathering, the consistency of the claims, as well as the low error rate in the submitted data, was determined to be sufficient to move forward with finalizing rule language.
Statutory Authority for Adoption: RCW 51.04.020 and 51.04.030.
Statute Being Implemented: RCW 51.04.020 and 51.04.030.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: L&I, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Karen Jost, L&I, 7273 Linderson Way S.W., Tumwater, WA 98501, 360-902-6699; and Enforcement: Vickie Kennedy, L&I, 7273 Linderson Way S.W., Tumwater, WA 98501, 360-902-4997.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jami Lifka, L&I, P.O. Box 44321, Olympia, WA 98504-4321, phone 360-902-4941, fax 360-902-6315, TTY 711 for 360-902-4941, email
The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The associated costs for the proposed rule are medical costs to pay for the treatment that is associated with the workers' compensation claim and effect the premium employers pay. Premiums are based on the risk classifications assigned to an employer and the employer's experience factor.
Under the proposed rule, acupuncture treatment is limited to a maximum of ten visits, may only be used to treat low back pain related to an accepted condition on the claim, and has a maximum cost per visit of $107.78.
The department initiated pilot rule making, filed on September 5, 2017 (WSR 17-18-076) to determine how best to incorporate acupuncture treatment into the workers' compensation setting. The pilot began October 1, 2017. As of October 15, 2018, the provision of acupuncture within the pilot has incurred $276,847.70 in costs on three hundred sixty-nine claims. When the total cost of these three hundred sixty-nine claims is summed, the current incurred cost is near $23.5 million with the current incurred cost and reserved or expected costs is nearly $32.7 million. Therefore, acupuncture represents 1.18 percent and 0.85 percent of the current and projected costs respectively.
For the three hundred sixty-nine claims, the median total costs incurred on the claim was $35,765 with the median costs for acupuncture treatment of $970 (2.7 percent of costs incurred), the average total costs were $88,586 with the average costs for acupuncture treatment of $782 (less than one percent of the cost incurred).
Based on the pilot rule experience, acupuncture treatment represents a small percentage of the costs on the claims receiving it and are limited to medical rate component to the premium and therefore, it is not expected that the costs associated with acupuncture treatment would affect the base rates for a classification or the experience factor of an employer. As such, the proposed rules are not expected to add additional costs.
In addition, the employers pay premiums on a per worker-hour/unit basis for each assigned risk class. Because the premium is based on the number of worker hours, it eliminates the potential for any disproportionate impact on small businesses.
January 2, 2019
Joel Sacks
AMENDATORY SECTION(Amending WSR 94-14-044, filed 6/29/94, effective 7/30/94)
WAC 296-20-01505Provider types and services not covered.
The department will not pay for services performed by the following practitioners:
Christian Science practitioners or theological healers
Noncertified physician assistants
Operating room technicians
Certified surgical technicians
Certified surgical assistants
Any other licensed or unlicensed practitioners not otherwise specifically provided for by the department.
AMENDATORY SECTION(Amending WSR 12-12-059, filed 6/5/12, effective 7/6/12)
WAC 296-20-03002Treatment not authorized.
The department or self-insurer will not allow nor pay for following treatment:
(1) Use of diapulse, thermatic (standard model only), spectrowave and superpulse machines on workers entitled to benefits under the Industrial Insurance Act.
(2) Iontophoresis; prolotherapy; ((acupuncture;)) injections of colchicine; injections of fibrosing or sclerosing agents; and injections of substances other than anesthetic or contrast into the subarachnoid space (intra-thecal injections).
(3) Treatment to improve or maintain general health (i.e., prescriptions and/or injection of vitamins or referrals to special programs such as health spas, swim programs, exercise programs, athletic-fitness clubs, diet programs, social counseling).
(4) Continued treatment beyond stabilization of the industrial condition(s), i.e., maintenance care, except where necessary to monitor prescription of medication necessary to maintain stabilization i.e., anti-convulsive, anti-spasmodic, etc.
(5) After consultation and advice to the department or self-insurer, any treatment measure deemed to be dangerous or inappropriate for the injured worker in question.
(6) Treatment measures of an unusual, controversial, obsolete, or experimental nature (see WAC 296-20-045). Under certain conditions, treatment in this category may be approved by the department or self-insurer. Approval must be obtained prior to treatment. Requests must contain a description of the treatment, reason for the request with benefits and results expected.
(7) Therapeutic medial branch block injections, therapeutic intradiscal injections, and therapeutic facet injections of the spine.
(8) Transcutaneous, interferential, and percutaneous nerve stimulators used in the home setting, and all associated supplies and equipment.
WAC 296-23-238Acupuncture rules.
(1) The department or self-insurer may pay for acupuncture treatment when ordered by the worker's attending provider or physician assistant and only for specific conditions related to the accepted condition on a claim and per department policy.
(2) The department may amend the list of covered conditions for acupuncture treatment as documented in the medical coverage decision on acupuncture.
(3) Acupuncture services may be administered by a provider acting within the scope of their licensure.
(4) The department or self-insurer will pay for a maximum of one acupuncture treatment per day for not more than ten visits per worker's compensation claim.
(5) The acupuncture provider must submit documentation of functional status to the attending provider and the department or the self-insurer at baseline, at the middle visit and following the end of treatment or ten visits, whichever comes first. Providers must use validated instruments per department policy to track and document the worker's pain and functional status during the course of acupuncture treatment.
(6) The department or self-insurer may review the quality of acupuncture services provided to workers.
(7) Providers should refer to WAC 296-20-01002 for the definition of "proper and necessary treatment." See WAC 296-20-010 for general information and WAC 296-20-125 for billing procedures.
(8) Billing codes, reimbursement levels and payment policies for acupuncture are listed in the department's Medical Aid Rules and Fee Schedules.