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September Regulatory Update: Special Rules Edition

Thursday, October 01, 2015   (0 Comments)
Posted by: Wes Hataway
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The September issue of the Louisiana Register contained several proposed rules which are of interest to our members.  As part of our continued efforts to keep you informed, we have developed the following summaries of the proposed administrative rules.  Please submit any comments or concerns about any of the proposed rules mentioned below to Wes Hataway, LSMS vice president, legal affairs and general counsel at wes@lsms.org prior to the dates designated below each rule discussion.

 

 

Opioid Antagonist Administration


Act 192 of the 2015 Legislative Session authorized the prescription of naloxone or another opioid antagonist without an examination of the individual to whom it may be administered under certain conditions.  The Act also required the LSBME to develop and promulgate a set of best practices for use by a licensed medical practitioner in such circumstances.  The proposed rules are  the Department of Health and Hospital’s attempt to develop rules governing best practices, training, storage, administration, and emergency follow-up procedures for opioid antagonist administration. 

 

Some concerns have been expressed regarding the mandatory registration and extensive training as many feel this creates extra barriers to prescribing. The full text of the rules requirements can be found HEREThe deadline for receipt of all written comments is October 12, 2015.  The deadline for requesting a public hearing is October 9, 2015. 

 

 

OWCA Update to Medical Treatment Schedule – Chronic Pain


The Office of Workers’ Compensation Administration has published a notice of intent to amend its medical treatment schedule in accordance with the mandatory review required by La. R.S. 23:1203.1(H).  The update is voluminous and very clinical in nature.  In an effort to highlight the rule changes, the LSMS has obtained a “red-line” copy of the proposed changes which can be found HERE.

 

As a reminder, all changes to the medical treatment schedule must meet the criteria set forth in La. R.S. 23:1203.1.  In other words, all changes must meet the following:

(1) Rely on specified, comprehensive, and ongoing systematic medical literature review.

(2) Contain published criteria for rating studies and for determining the overall strength of the medical evidence, including the size of the sample, whether the authors and researchers had any financial interest in the product or service being studied, the design of the study and identification of any bias, and the statistical significance of the study.

(3) Are current and the most recent version produced, which shall mean that documented evidence can be produced or verified that the guideline was developed, reviewed, or revised within the previous five years.

(4) Are interdisciplinary and address the frequency, duration, intensity, and appropriateness of treatment procedures and modalities for all disciplines commonly performing treatment of employment-related injuries and diseases.

(5) Are, by statute or rule, adopted by any other state regarding medical treatment for workers' compensation injuries, diseases, or conditions.

These changes DO NOT contain physician input that was originally requested from LSMS and LSIPP members. Furthermore, the changes were not reviewed or approved by the workers compensation Medical Advisory Council. As proposed, it reverts some of the current pain treatment schedule to the Colorado treatment schedule, which providers and payors alike negotiated away from years ago. These changes are being pushed through by the department unnecessarily and have completely bypassed the normal subcommittees’ input, formality and structure.

The deadline for all written comments has been set for October 9, 2015.  A public hearing will take place on October 28, 2015 at LWC 1001 N. 23rd St., Baton Rouge, LA, at 9:30 am. 

  

 

Louisiana State Board of Medical Examiners’ Rules for Complaints and Investigations

 

The passage of Act 441 of the 2015 Legislative Session marked a significant victory for physician rights.  The Act mandated that clearly written due process rules be written and properly implemented by January 1, 2016.  At a minimum, the rules have to address time limits for initiating and completing an investigation and for scheduling an adjudicatory hearing, informal settlement conferences and consent decrees, notice of the hearing, pleadings, discovery, subpoenas, representation by counsel, prehearing conferences, adjudicatory hearing procedures, and notice of the final decision. 

 

The proposed rules can be found HERE.  While the LSMS appreciates the LSBME’s efforts in drafting these rules, we still have concerns regarding the proposals.  Of primary concern is the generous time frames allowed for completion of tasks by the LSBME.  The rules allow for 6 months to screen a compliant in order to determine jurisdiction and sufficient cause.  The rules also allow for 3 years to complete a formal investigation in order to determine whether or not formal charges should be filed. Other key provisions of the proposed rule include:

 

  • The only documents and information that can be gathered during the preliminary review process are those that are necessary to determine jurisdiction or sufficient cause for the complaint.  In other words, wholesale gathering of records during the preliminary review will not be allowed.  A nexus must be shown between the information collected and the complaint alleged.
  • The LSBME may contact the licensee during a preliminary review of the complaint for the purpose of responding to the allegation.  If he is contacted, the licensee must be provided with a brief summary of the complaint or alleged violation and be informed that he has the right to legal counsel.
  • A majority vote of the Board must grant approval to the LSBME to proceed with a formal investigation of the licensee on any complaint.  The licensee must be provided with written notice of the board’s decision within 5 days of the vote.  The notice shall include a summary of the allegations as well as an advisement of the right to legal representation.
  • At the conclusion of the formal investigation, the LSBME must recommend to the Board that the matter be closed if there is insufficient evidence or information to indicate a violation has occurred.  If it is believed there is sufficient information to indicate a violation has occurred, an administrative complaint may be filed as long as a draft has been provided to the licensee along with an opportunity to respond.  The licensee must also be granted the ability to resolve the matter through an informal disposition. 
  • At an administrative hearing, all allegations against the licensee must be proven by a preponderance of the evidence. 

The LSMS has already requested a formal hearing on the rules which will be held on October 26, 2015.  In anticipation of this meeting, we want to hear from you.  Please review the proposed rules and send us your feedback.  Send all comments to Vice President of Legal Affairs Wes Hataway at wes@lsms.orgThe LSBME has set an October 21, 2015, deadline for written comments. 

  

 

Federally Qualified Health Centers Service Limits


The Department of Health and Hospitals, Bureau of Health Services Financing previously amended the provisions governing federally qualified health centers (FQHC’s) to provide Medicaid reimbursement for diabetes self-management training services.  The department now proposes to amend the provisions governing FQHC service limits in order to remove the 12 visits per year limit for Medicaid recipients 21 years of age and older.  Accordingly, it is proposed that no limits be placed on such visits. 

 

The proposed rule can be found HERE. All written comments regarding this rule change are due to DHH by October 30, 2015.  A public hearing will be held on October 29, 2015, at 9:30 am at the Bienville Building located at 628 North Fourth St., Baton Rouge, LA.

  

 

Outpatient Hospital Services/Outpatient Clinics Service Limits


In compliance with federal regulations, the DHH, Bureau of Health Services Financing previously amended the provisions governing outpatient hospital services to remove the visit limits on emergency room services.  The department now proposes to amend the provisions governing outpatient hospital services in order to remove the 12 visits per year limit on physician services provided in a clinic in an outpatient hospital setting.  Accordingly, it is proposed that no limits be placed on such visits. 

 

The proposed rule can be found HERE. All written comments regarding this rule change are due to DHH by October 30, 2015.  A public hearing will be held on October 29, 2015, at 9:30 am at the Bienville Building located at 628 North Fourth St., Baton Rouge, LA.

  

 

Medicaid Outpatient Physician Services Limits


The Medicaid program provides coverage and reimbursement for outpatient physician visits in the Professional Services Program.  The proposed rules place no limits on the number of physician visits payable by the Medicaid program for eligible recipients. 

 

The proposed rule can be found HERE. All written comments regarding this rule change are due to DHH by October 30, 2015.  A public hearing will be held on October 29, 2015, at 9:30 am at the Bienville Building located at 628 North Fourth St., Baton Rouge, LA.

  

 

Medicaid Rural Health Clinic Visits


DHH proposes to amend the provisions governing rural health clinic service limits in order to remove the 12 visits per year limits for Medicaid recipients 21 years of age or older.  Further, the department proposes no limits be placed on such visits. 

 

The proposed rule can be found HERE. All written comments regarding this rule change are due to DHH by October 30, 2015.  A public hearing will be held on October 29, 2015, at 9:30 am at the Bienville Building located at 628 North Fourth St., Baton Rouge, LA.

  

 

Medical Marijuana

 

Act 261 of the 2015 Legislative Session required the Louisiana State Board of Medical Examiners to promulgate rules and regulations authorizing physicians licensed to practice in this state to prescribe marijuana for therapeutic use by patients no later than January 1, 2016.  Of course, the use of the word “prescribe” negates the ability of the physician to provide medical marijuana for their patients.  Under federal law, marijuana is classified as a Schedule 1 drug thereby making it illegal to be prescribed.  With that caveat in mind, the proposed rules contains the following highlights:

  • A warning that federal law classifies marijuana as a Schedule I drug and accordingly, prescribing marijuana may subject the prescriber to criminal, civil and administrative consequences.
  • Expands the definition of “prescribe” to potentially include “written request”, “recommendation”, or “order”.   However, the rules again warn prescribers that labelling a prescription as any of the preceding terms could run contrary to federal law.  It is our belief that the Board is putting the rules in a posture to allow for flexibility to the prescriber if the word “prescribe” in Act 261 is amended in future legislative sessions.
  • Requires prescribers of marijuana to be registered with the Board.  It also disallows prescribers from writing scripts for more than 100 patients, examining patients where marijuana is on-site, delegating the authority to diagnosis a patient to another health professional, or have an ownership interest in a licensed marijuana distributor or producer. 
  • Creates a process for application and registration with the board to be allowed to prescribe medical marijuana.  The proposed rules also lists those that will be ineligible to apply/register (previously convicted of a drug offense, prior treatment for substance abuse, and/or is being formally investigated by the board)
  • Requires continuing obligations of the prescriber if he prescribes medical marijuana.  The obligations include utilizing the Prescription Monitoring Program, documenting an independent treatment plan in the patient’s record, and re-examination of the patient every 90 days.
  • Creates a form which shall be utilized when “prescribing” medical marijuana. 

The full proposed rules can be found HEREAll written comments are to be sent to the LSBME by October 21, 2015.  A public hearing has been tentatively scheduled for October 26, 2015. 

  

 


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Ph: 800.375.9508 | 225.763.8500
Fax: 225.768.5601

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