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| Attendant allowances Two employee organizations objected to the change in method of payment to attendants as represented by this section, given the language of section 8111(a). The Preamble to the Proposed Rule (62 FR 67123-67124) sets forth in detail OWCP's reasons for making this change, and OWCP continues to believe that this exercise of the Director's discretion will be beneficial in several ways. As noted in the Preamble, employees currently receiving an attendant's allowance under section 8111(a) will not be affected by this change. Two agencies stated that they support the changes noted in this section, one indicating its belief that this provision will help OWCP to monitor and control medical costs in the future. The other suggested that this section address the desired billing method, either specifically or by cross-reference to subpart I. OWCP concurs, and a cross-reference to Sec. 10.801 has been added. The second agency also suggested that the new provision apply to all cases, and that attendants' allowances currently being paid under section 8111(a) be discontinued. In this agency's view, such a change would reduce workload and avoid any confusion which might result from having two methods of payment. Given the relatively small number of cases affected by this provision, OWCP does not believe that the benefits which would result from changing the method of payment to claimants now receiving augmented compensation for attendants would outweigh the disruption which might result. Sec. 10.801 How are medical bills to be submitted? (a) All charges for medical and surgical
treatment, appliances or supplies furnished to injured employees, except for treatment and
supplies provided by nursing homes, shall be supported by medical evidence as provided in
Sec. 10.800. The physician or provider shall itemize the charges on the standard Health
Insurance Claim Form, HCFA 1500 or OWCP 1500, (for professional charges), the UB-92 (for
hospitals), the Universal Claim Form (for pharmacies), or other form as warranted, and
submit the form promptly to OWCP. Fee schedule (exempted providers) One agency asked if some providers might be exempt from the OWCP fee schedule. In Sec. 10.805(b) and (c), OWCP notes that its fee schedule does not currently cover services provided in nursing homes, nor does it cover appliances, supplies, services or treatment furnished by medical facilities of the U.S. Public Health Service or theDepartments of the Army, Navy, Air Force and Veterans Affairs. Sec. 10.805 What services are covered by the OWCP fee schedule? (a) Payment for medical and other health services furnished by physicians, hospitals and other providers for work-related injuries shall not exceed a maximum allowable charge for such service as determined by the Director, except as provided in this section. (b) The schedule of maximum allowable charges does not apply to charges for services provided in nursing homes, but it does apply to charges for treatment furnished in a nursing home by a physician or other medical professional. (c) The schedule of maximum allowable charges also does not apply to charges for appliances, supplies, services or treatment furnished by medical facilities of the U.S. Public Health Service or the Departments of the Army, Navy, Air Force and Veterans Affairs. One agency supported the changes to OWCP's fee schedule, but asked how the requirement to use the specific billing forms listed inSec. 10.801 would be communicated to providers and employees. These regulations themselves are the primary vehicle for informing providers and employees of OWCP's billing requirements, which will also be communicated via the Internet (from which copies of the forms can be downloaded) and through routine contacts with OWCP claims staff and bill processing units in the various district offices across the country.Sec. 10.801 How are medical bills to be submitted? (a) All charges for medical and surgical treatment, appliances or supplies furnished to injured employees, except for treatment and supplies provided by nursing homes, shall be supported by medical evidence as provided in Sec. 10.800. The physician or provider shall itemize the charges on the standard Health Insurance Claim Form, HCFA1500 or OWCP 1500, (for professional charges), the UB-92 (for hospitals), the Universal Claim Form (for pharmacies), or other form as warranted, and submit the form promptly to OWCP. (b) The provider shall identify each service performed using the Physician's Current Procedural Terminology (CPT) code, the Health Care Financing Administration Common Procedure Coding System (HCPCS) code,the National Drug Code (NDC), or the Revenue Center Code (RCC), with a brief narrative description. Where no code is applicable, a detailed description of services performed should be provided. (c) The provider shall also state each diagnosed condition and furnish the corresponding diagnostic code using the ``International Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-CM), or as revised. A separate bill shall be submitted when the employee is discharged from treatment or monthly, if treatment for the work-related condition is necessary for more than 30 days. (1) (i) Hospitals shall submit charges for medical and surgical treatment or supplies promptly to OWCP on the Uniform Bill (UB-92). The provider shall identify each outpatient radiology service, outpatient pathology service and physical therapy service performed, using HCPCS/CPT codes with a brief narrative description. The charge for each individual service, or the total charge for all identical services, should also appear in the UB-92. (ii) Other outpatient hospital services for which HCPCS/CPT codes exist shall also be coded individually using the coding scheme noted in this paragraph. Services for which there are no HCPCS/CPT codes available can be presented using the RCCs described in the ``National Uniform Billing Data Elements Specifications'', current edition. The provider shall also furnish the diagnostic code using the ICD-9-CM. If the outpatient hospital services include surgical and/or invasive procedures, the provider shall code each procedure using the proper CPT/HCPCS codes and furnishing the corresponding diagnostic codes using the ICD-9-CM. (2) Pharmacies shall itemize charges for prescription medications, appliances, or supplies on the Universal Claim Form and submit them promptly to OWCP. Bills for prescription medications must include the NDC assigned to the product, the generic or trade name of the drug provided, the prescription number, the quantity provided, and the date the prescription was filled. (3) Nursing homes shall itemize charges for appliances, supplies or services on the provider's billhead stationery and submit them promptly to OWCP. (d) By submitting a bill and/or accepting payment, the provider signifies that the service for which reimbursement is sought was performed as described and was necessary. In addition, the provider thereby agrees to comply with all regulations set forth in this subpart concerning the rendering of treatment and/or the process for seeking reimbursement for medical services, including the limitation imposed on the amount to be paid for such services. (e) In summary, bills submitted by providers must: be itemized on the Health Insurance Claim Form (for physicians), the UB-92 (for hospitals), or the Universal Claim Form (for pharmacies); contain the signature or signature stamp of the provider; and identify the procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise, OWCP may return the bill to the provider for correction and resubmission. -Current Sec. 10.104 requires the employee to submit medical evidence in all cases. One agency stated that this requirement is not clearly enunciated in the proposed regulations, in spite of specific references in proposed Secs. 10.210, 10.101, and 10.105, and suggested a change to proposed Sec. 10.115. The program concurs, and a sentence is being added to clarify this point Sec. 10.115 What evidence is needed to establish a claim? Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence required. OWCP may send any request for additional evidence to the claimant and to his or her representative, if any. Evidence should be submitted in writing. The evidence submitted must be reliable, probative and substantial. Each claim for compensation must meet five requirements before OWCP can accept it. These requirements, which the employee must establish to meet his or her burden of proof, are as follows: (a) The claim was filed within the time limits specified by the FECA; (b) The injured person was, at the time of injury, an employee of the United States as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of this part; (c) The fact that an injury, disease or death occurred; (d) The injury, disease or death occurred while the employee was in the performance of duty; and (e) The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship. (f) In all claims, the claimant is responsible for submitting, or arranging for submittal of, a medical report from the attending physician. For wage loss benefits, the claimant must also submit medical evidence showing that the condition claimed is disabling. The rules for submitting medical reports are found in Secs. 10.330 through 10.333. Section 10.102(b)(3) One agency asked for clarification as to whether the medical evidence should be submitted to the employer or to OWCP. As OWCP is the proper recipient, this paragraph has been changed to so state. The agency also stated that the employee should be required to provide the medical evidence to the employer. OWCP strenuously disagrees, as it is the adjudicator of claims for compensation and employers do not have a global need for medical reports supporting such payments. The agency may, however, obtain copies of such medical evidence directly fromOWCP. Therefore, this change has not been made. One labor organization suggested rewording paragraph (a) to state that OWCP's requests for medical evidence in long-term disability cases will ordinarily occur not less than once a year. OWCP is making this change, as the suggested wording reflects long-term OWCP policy with respect to certain severely disabled employees. One agency and another commenter noted that, while the Preamble to the Proposed Rule states that benefits may be suspended for failure to undergo non-invasive testing directed by OWCP, the text of paragraph (b) itself does not so state. A sentence is being added to this section to correct this oversight. Sec. 10.501 What medical evidence is necessary to support continuing receipt of compensation benefits? (a) The employee is responsible for providing sufficient medical evidence to justify payment of any compensation sought. (1) To support payment of continuing compensation, narrative medical evidence must be submitted whenever OWCP requests it but ordinarily not less than once a year. It must contain a physician's rationalized opinion as to whether the specific period of alleged disability is causally related to the employee's accepted injury or illness. (2) The physician's opinion must be based on the facts of the case and the complete medical background of the employee, must be one of reasonable medical certainty and must include objective findings in support of its conclusions. Subjective complaints of pain are not sufficient, in and of themselves, to support payment of continuing compensation. Likewise, medical limitations based solely on the fear of a possible future injury are also not sufficient to support payment of continuing compensation. See Sec. 10.330 for a fuller discussion of medical evidence. (b) OWCP may require any kind of non-invasive testing to determine the employee's functional capacity. Failure to undergo such testing will result in a suspension of benefits. In addition, OWCP may direct the employee to undergo a second opinion or referee examination in any case it deems appropriate (see Secs. 10.320 and 10.321). One commenter disagreed with the statement that ``an injury caused by medical malpractice in treating an injury covered by the FECA is also an injury covered under the FECA,'' and argued that such coverage should not result from the medical malpractice of a private physician. However, since the statement in question is based on ECAB cases where coverage has been found under these circumstances, such as in Bonnie D.Jefferson, 34 ECAB 1426 (1983), the suggested modification of Sec. 10.717 would be directly contrary to the ECAB's interpretation of the FECA, and it is therefore considered unwarranted.Sec. 10.717 Is a settlement or judgment received as a result of allegations of medical malpractice in treating an injury covered by the FECA a gross recovery that must be reported to OWCP or SOL? Since an injury caused by medical malpractice in treating an injury covered by the FECA is also an injury covered under the FECA, any recovery in a suit alleging such an injury is treated as a gross recovery that must be reported to OWCP or SOL. Sec. 10.331 How and when should the medical report be submitted?(a) Form CA-16 may be used for the initial medical report; Form CA-20 may be used for the initial report and for subsequent reports; and Form CA-20a may be used where continued compensation is claimed. Use of medical report forms is not required, however. The report may also be made in narrative form on the physician's letterhead stationery. The report should bear the physician's signature or signature stamp. OWCP may require an original signature on the report. (b) The report shall be submitted directly to OWCP as soon as possible after medical examination or treatment is received, either by the employee or the physician. (See also Sec. 10.210.) The employer may request a copy of the report from OWCP. The employer should use Form CA-17 to obtain interim reports concerning the duty status of an employee with a disabling injury. Medical (special equipment requests) A commenter also questioned the statement that OWCP ``will not approve an elaborate appliance or service where a more basic one is suitable'', positing that OWCP will oppose use of higher-cost diagnostic tests (for instance MRIs, in comparison with x-rays) in a misguided attempt to cut costs. This conclusion is incorrect. The statement is intended to address requests for special equipment, such as exercise bicycles, and special services, such as health club memberships, when prescribed to treat the effects of an injury. OWCP will not pay for a top-of-the-line appliance or service where a less expensive equivalent exists. However, in matters of diagnosis and treatment, OWCP does not and will not attempt to second-guess physicians.Sec. 10.310 What are the basic rules for obtaining medical care? (a) The employee is entitled to receive all medical services, appliances or supplies which a qualified physician prescribes or recommends and which OWCP considers necessary to treat the work-related injury. The employee need not be disabled to receive such treatment. If there is any doubt as to whether a specific service, appliance or supply is necessary to treat the work-related injury, the employee should consult OWCP prior to obtaining it. (b) Any qualified physician or qualified
hospital may provide such services, appliances and supplies. A qualified provider of
medical support services may also furnish appropriate services, appliances, and supplies.
OWCP may apply a test of cost-effectiveness to appliances and supplies. With respect to
prescribed medications, OWCP may require the use of generic
equivalents where they are available. It stated that such an approach would be ``deeply unproductive'' without giving any reason for this belief. The organization also posited that the mandatory aspect was proposed so that the costs associated with OWCP nurses would be shifted to the employing agencies, but in fact, the costs are already charged back to the agencies. In addition, the organization argued that since section 8104(a) of the FECA only allows OWCP to direct ``permanently disabled'' employees to undergo vocational rehabilitation, OWCP could not impose the sanctions described in Sec. 10.519 (which are derived from section 8113(b) against employees who refuse to cooperate with OWCP nurses unless they were ``permanently disabled.'' Pursuant to section 8104(a), OWCP has the discretionary authority to ``direct a permanently disabled individual whose disability is compensable'' to undergo vocational rehabilitation. The ECAB has repeatedly held that a ``permanently disabled individual'' refers to an employee with a loss of wage-earning capacity, since the intent of Congress in enacting section 8104(a) was to provide disabled employees with the services necessary to overcome or lessen their disability. See, e.g., Wayne E. Vincent, 6 ECAB 1024 (1954); Joseph C. Reuter, 11 ECAB 296 (1960); Gary L. Loser, 38 ECAB 673 (1987). Consistent with these rulings, OWCP's policy is to presume that an injured employee who has a loss of wage-earning capacity is ``permanently disabled,'' for purposes of Sec. 10.519 only, unless and until the employee proves that the disability is not permanent, and to intervene in the early stages of disability cases to help employees return to some type of work as soon as possible. Since nursing services have been shown to be one of the most effective vocational rehabilitation services that can be provided to employees in the weeks immediately following their injuries, Sec. 10.519 allows OWCP to impose sanctions against employees who refuse to cooperate with its nurses. However, in light of the apparent confusion regarding the scope of this regulation, Sec. 10519 is revised to better describe OWCP's policy. Sec. 10.519 What action will OWCP take if an employee refuses to undergo vocational rehabilitation? Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled employee to undergo vocational rehabilitation. To ensure that vocational rehabilitation services are available to all who might be entitled to benefit from them, an injured employee who has a loss of wage-earning capacity shall be presumed to be ``permanently disabled,''for purposes of this section only, unless and until the employee proves that the disability is not permanent. If an employee without good cause fails or refuses to apply for, undergo, participate in, or continue to participate in a vocational rehabilitation effort when so directed, OWCP will act as follows: (a) Where a suitable job has been identified, OWCP will reduce the employee's future monetary compensation based on the amount which would likely have been his or her wage-earning capacity had he or she undergone vocational rehabilitation. OWCP will determine this amount in accordance with the job identified through the vocational rehabilitation planning process, which includes meetings with the OWCP nurse and the employer. The reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP. (b) Where a suitable job has not been identified, because the failure or refusal occurred in the early but necessary stages of a vocational rehabilitation effort (that is, meetings with the OWCP nurse, interviews, testing, counseling, functional capacity evaluations, and work evaluations), OWCP cannot determine what would have been the employee's wage-earning capacity. (c) Under the circumstances identified in
paragraph (b) of this section, in the absence of evidence to the contrary, OWCP will
assume that the vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and OWCP will reduce the employee's monetary
compensation accordingly (that is, to zero). This reduction will remain in effect until
such time as the employee acts in good faith to comply with the direction of OWCP. Allowing OWCP to consider reimbursing an employee for the amount in excess of the fee schedule in Sec. 10.802(g) contravened the fee schedule and would lead to an undesirable increase in agency chargeback costs. As noted above in response to similar comments regarding Sec. 10.337, subsections (e), (f), and (g) of Sec. 10.802 have been modified consistent with the changes to Sec. 10.337. Sec. 10.802 How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses? (e) An employee will be only partially reimbursed for a medical expense if the amount he or she paid to a provider for the service exceeds the maximum allowable charge set by the Director's schedule. If this happens, OWCP shall advise the employee of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid which exceeds the maximum allowable charge. The provider may request reconsideration of the fee determination as set forth in Sec. 10.812. (f) If the provider fails to make appropriate refund to the employee, or to credit the employee's account, within 60 days after the employee requests a refund of any excess amount, or the date of a subsequent reconsideration decision which continues to disallow all or a portion of the appealed amount, OWCP shall initiate exclusion procedures as provided by Sec. 10.815. (g) If the provider does not refund
to the employee or credit to his or her account the amount of money paid in excess of the
charge which OWCP allows, the employee should submit documentation of the attempt to
obtain such refund or credit to OWCP. OWCP may make reasonable reimbursement to the
employee after reviewing the facts and circumstances of the case. Sec. 10.303 Should the employer use a Form CA-16 to authorize medical testing when an employee is exposed to a workplace hazard just once? (a) Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a work-related injury entitling an employee to medical treatment under the FECA. The employer therefore should not use a Form CA-16 to authorize medical testing for an employee who has merely been exposed to a workplace hazard, unless the employee has sustained an identifiable injury or medical condition as a result of that exposure. OWCP will authorize preventive treatment only under certain well-defined circumstances (see Sec. 10.313). (b) Employers may be required under
other statutes or regulations to provide their employees with medical testing and/or other
services in situations described in paragraph (a) of this section. For example,
regulations issued by the Occupational Safety and Health Administration at 29 CFR
chapter XVII require employers to provide their employees with medical
consultations and/or examinations when they either exhibit symptoms consistent with exposure to a workplace hazard, or when an
identifiable event such as a spill, leak or explosion occurs and results in the likelihood
of exposure to a workplace hazard. In addition, 5 U.S.C.7901 authorizes
employers to establish health programs whose staff can perform tests for workplace
hazards, counsel employees for exposure or feared exposure to such hazards, and provide
health care screening and other associated services. Three employee organizations suggested that the employer be specifically instructed to ``ad6ise the employee of the right to initial choice of physician'', parallel to the language of proposed Sec. 10.211(b) with respect to the employee's right to COP. This change has been made Sec. 10.300 What are the basic rules for authorizing emergency medical care? (d) The employer should advise the
employee of the right to his or her initial choice of physician. The employer shall allow
the employee to select a qualified physician, after advising him or her of those
physicians excluded under subpart I of this part. The physician may be in private
practice, including a health maintenance organization (HMO), or employed by a Federal
agency such as the Department of the Army, Navy, Air Force, or Veterans Affairs. Any
qualified physician may provide initial treatment of a work-related injury in an
emergency. See also Sec. 10.825(b). |
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