Last week, the Kentucky Division of Workers’ Claims (DWC) published an emergency regulation that introduces changes to the way that utilization review (UR) will be conducted – and reported – in Kentucky’s workers’ compensation claims.

This comes after the General Assembly passed SB 65, a measure targeted specifically to nullify the DWC’s planned amendments to its rules governing UR.

Governor Beshear vetoed the bill, but the General Assembly voted to override the veto – as well as vetoes of several other bills — during the last days of the legislative session.

This left the DWC with a problem: the proposed version of the UR regulation has been nullified, and the existing version had expired, leaving no UR regulation in effect, according to the DWC’s Statement of Emergency.

By law, the DWC must have a UR regulation in effect, so it has promulgated a new emergency regulation, effective immediately, to fill the gap while an ordinary (non-emergency) regulation is proposed.

This new emergency regulation contains some – but not all – of the changes that the DWC had hoped to introduce later this year.

Here’s what you need to know.

  1. Carriers and Self-Insured Employers Will Have to Submit Annual UR Reports by August 1st of Each Year.

    Notably, the emergency regulation doesn’t make an exception for August 1st of this year. (This may change if stakeholders raise a fuss during the comment period.)

    Per the emergency regulation, carriers and self-insured employers that contract with approved UR vendors will be required to submit reports by August 1st of each year detailing certain data on UR determinations for the preceding year, “including any fiscal year ending on or before June 30.”

    Payers should be able to get most of this data from their UR vendor; however, the report will also need to show how many times UR has been “waived” – meaning that a request for authorization of treatment was approved without being referred to UR.

  2. All UR Preauthorization Reconsiderations Now Follow a Strict Process for Peer-to-Peer Discussions.

    When the DWC adopted the ODG formulary back in 2019, it also adopted a very specific process by which treating providers would request discussions with reviewers after a UR denial of medications.

    The new emergency regulation applies this standard to UR reconsiderations of all treatment – not just medications.

    As usual, a request for reconsideration will have to be made within 14 calendar days of receiving a UR denial; however, now, the requesting medical provider can demand a peer-to-peer discussion with a different reviewer who must be specialty-matched to the requesting medical provider.

    To demand a discussion, the medical provider will need to make sure that their reconsideration request:

    — is submitted electronically;

    — includes at least one or more proposed dates for the discussion, falling on a weekday (Monday-Friday), and no less than 5 business days after the date of the request; and

    — includes a one-hour period between 8:00 a.m. and 6:00 p.m. Eastern for each of those proposed dates during which the discussion may take place.

  3. Preauthorization Requests Will Be Deemed Approved Automatically If the Specialty-Matched Reviewer Doesn’t Attend the Discussion.

    There is a “good cause” exception that allows the reviewer to reschedule the discussion within two business days of the original planned date; however, absent good cause, failure of the reviewer to attend “shall” result in approval of the preauthorization request.

    Conversely, if the requesting provider fails to attend, their absence “may” result in denial of the preauthorization request.

  4. The Planned UR Appeal Process Has Been Removed.

    Under the old proposed amendments, the DWC would have brought on a Medical Director who would have been in charge of performing appeals of UR and bill review determinations.

    The payer would have been assessed a fee for each appeal, and failure to pay that fee could have resulted in penalties to the payer and reversal of the UR or bill review determination.

    The emergency regulation does not contain any reference to a Medical Director or to the previously planned process for appealing UR denials.

  5. The Emergency Regulation is Currently In Effect, but We May See Changes.

    Under Kentucky Law, emergency regulations become effective immediately upon filing and last for 270 days or until replaced by an ordinary regulation.

    The DWC has already proposed an ordinary regulation (803 KAR 25:195) that is identical to the emergency regulation (803 KAR 25:195E).

    Though the emergency regulation is already in effect, it is still subject to a public commentary period, and the DWC may amend it based on comments received.

    The DWC is currently accepting written comments through May 31st, and has scheduled a public hearing for May 31st at 10:00 AM Eastern.

    If you would like details on how to submit comments or how to attend the hearing, click here.

By David Price, Director of Government Affairs

The information in this article is intended for purposes of discussion of public policy. It is not intended as legal advice, nor is it intended to be a complete and accurate restatement of the law as it may exist at the time of reading. By using this site, you confirm that there is no attorney-client relationship between you and the author or publisher. This content should not be used as a substitute for legal advice from your licensed attorney. Please consult a licensed attorney in the appropriate jurisdiction for questions as to how the laws discussed here may affect a specific workers’ compensation claim.