Division Amends the EMA Rules

https://www.flrules.org/gateway/ruleNo.asp?id=69L-30.002

Notice of Change/Withdrawal

DEPARTMENT OF FINANCIAL SERVICES

Division of Worker's Compensation

RULE NOS.:        RULE TITLES:

69L-30.002          Definitions

69L-30.003          Qualifications for Expert Medical Advisor Certification

69L-30.004          Application for Expert Medical Advisor Certification

69L-30.005          Selection of Expert Medical Advisors

69L-30.006          Temporary Expert Medical Advisors

69L-30.007          Expert Medical Advisor Responsibilities

69L-30.008          Billing and Reimbursement for Expert Medical Advisor

69L-30.010          Expert Medical Advisor Decertification

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 41 No. 57, March 24, 2015 issue of the Florida Administrative Register.

The changes to the proposed rules are made in response to comments submitted by the staff of the Joint Administrative Procedures Committee. The proposed rules include certain technical changes and clarifications. The changes are as follows:

69L-30.002 Definitions.

For purposes of this rule chapter the following definitions apply:

(1) No change.

(2) “Board eligible” or “board eligibility” means the physician has been determined eligible to take the board certification examination recognized by one or more of the applicable national specialty boards recognized by the State of Florida Department of Health board as eligible to take the board certification examination.

(3) “Department List of Certified Expert Medical Advisors” (hereinafter “Certification List”) is the electronic list of physicians approved as Expert Medical Advisors.

(4) “Expert Medical Advisor” (hereinafter “EMA”) is a physician certified by the Department to render peer review or expert medical consultation, opinions and testimony, within the advisor’s specialty area, to assist Judges of Compensation Claims (“JCC”) and the Department in resolving issues related to reimbursement, differing opinions of health careproviders, and physician and health care services rendered under the Florida Workers’ Compensation health care delivery system.

(5) “Expert Medical Advisor Certification” (hereinafter “EMA Certification”) is the application process through which a physician must demonstrate eligibility by submitting the required information and documentation and satisfactorily completing the online EMA Tutorial to be approved to render expert medical opinions regarding medical services provided under Chapter 440, F.S.

(6) “DWC Expert Medical Advisor Certification Portal,” eff. 01/01/2016 (hereinafter “DWC EMA Website”) is accessible at www.myfloridacfo.com/division/wc/provider.htmland provides physicians with the means to navigate the online EMA certification process and is incorporated by reference herein.

(7) “EMA Certificate” is the written documentation issued by the Department authorizing a physician to perform EMA services pursuant to Section 440.13, F.S.

(8) “EMA Tutorial” means the Florida Department of Financial Services, Division of Workers’ Compensation (“DWC”), Expert Medical Advisor Certification Tutorial, which is accessible online at the DWC EMA Website atwww.myfloridacfo.com/division/wc/provider.html. The EMA Tutorial provides subject matter information and then tests the applicant’s knowledge of Section 440.13, F.S., and applicable administrative rules adopted by the Department.

(9) “Examination” means an Independent Medical Examination as defined in paragraph 440.13(1)(i), F, S.

(10) “Physician” is as defined in paragraph 440.13(1)(p), F.S.

(11) “Temporary EMA” is a physician identified by a JCC or the Department for temporary certification by the Department, who is board certified in a specialty area in which no Certified EMA is available to render the services necessary for the JCC or the Department to fulfill their statutory responsibilities under Chapter 440, F.S. PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.003 Qualifications for Expert Medical Advisor Certification and Re-Certification.

(1) To be certified as an EMA Expert Medical Advisor, a physician shall meet the following qualifications:

(a)(1) Must have correctly answered 95% of the EMA Tutorial review questions been certified  as a health care provider by the Department pursuant Chapter 69L-29, F.A.C., for a period of no less than twelve months prior to the date of the Expert Medical Advisor application; and

(b)(2) Must hold valid licensure, issued by the Florida Department of Health, with “clear and active” status; and

(c)(3) Must demonstrate holdspecialty-board certification or specialty-board eligibility applicable to the specialty for which the applicant seeks certification by submitting proof of current certification or eligibility. If the applicable national-specialty board does not recognize “board eligible” or “board eligibility” status, the applicant must hold board certification for the specialty; and

(d)(4) Must demonstrate experience in the assignment of permanent impairment ratings greater than zero (0%) to Florida’s injured employees, pursuant to Rule 69L-7.604, F.A.C., within the two-year period immediately preceding the date of application by submitting a minimum of two (2) copies of a completed DFS-F5-DWC-25, Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form, as incorporated in Rule 69L-7.710(2)(d), F.A.C., assigning a permanent impairment rating; and

(e)(5) Must demonstrate experience in performing Independent Medical Examinations independent medical examinations pursuant to subsections 440.13(2) or 440.13(5), F.S., by submitting a minimum of two (2) copies of a completed Independent Medical Examination reports for a determination of the appropriateness of medical treatment being recommended or provided to an injured employee or for a determination of the injured employee’s disability and physical limitations, within the two-year period immediately preceding the date of application; and

(f)(6) Must have completed twenty hours of continuing medical education (CME),specifically related to the physician’s practitioner’s field of specialty, within the two-year period immediately preceding the date of application. Proof of required CMEs must be provided at time of application.Completion of courses required for licensure by the Florida Department of Health addressing Domestic Violence, HIV-AIDS and Prevention of Medical Errors will not be applied to the medical continuing education requirements for EMA Certification.Expert Medical Advisor certification; and

(7) Must possess knowledge of the Florida Statutes related to workers’ compensation, specifically Sections 440.02, 440.09, 440.093, 440.102, 440.105, 440.13, 440.134, 440.15(3), 440.15(5), 440.151, 440.20 and 440.491; and possess knowledge of the Florida Administrative Code Rules 69L-7.602 and 69L-7.020 related to workers’ compensation.

(2) A physician who has  performed services as a Temporary EMA  for either a JCC or the Department within the two-year period immediately preceding the date of application for certification shall not be required to meet the requirements of subparagraphs (1) (d) and (e) of this rule.

(3) An EMA applying for renewal prior to or no more than 90 days after the expiration of the EMA’s most current certification period shall not be required to meet the requirement of subparagraph (1) (a) of this rule.

(4) A physician who, pursuant to a final order, has been found to have engaged in standard of care or billing violations pursuant to subsections 440.13(8) and (13), F.S., shall not be certified as an EMA.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.004 Application Process for Expert Medical Advisor Certification.

(1) A physician shall apply for Expert Medical Advisor certification by satisfactorily completing the onlineEMA Tutorial that is accessible through the DWC EMA Website at www.myfloridacfo.com/division/wc/provider.html, pursuant to Rule 69L-30.002(6), F.A.C submitting a signed, legible and accurately completed Expert Medical Advisor Certification Application, DFS Form 3160-0021, to the following address: Division of Workers’ Compensation, Office of Medical Services, c/o Department of Financial Services, 200 E. Gaines Street, Tallahassee, FL 32399-4232. The Expert Medical Advisor Certification Application, DFS Form 3160-0021, revised May 2006, is incorporated by reference into Chapter 69L-30, F.A.C., and may be obtained from the Office of Medical Services, c/o Department of Financial Services, Division of Workers’ Compensation’s website: www.myfloridacfo.com/wc/forms.html#7.

(2) As part of the EMA Expert Medical Advisor certification application process, the physician shall agree to provide consultation or services in accordance with the timetables set forth in Chapter 440, F.S., and abide by rules adopted by the Department may appoint a physician including, but not limited to, rules pertaining to procedures for review of the services rendered by health care providers and preparation ofreports and testimony or recommendations for submission to the Department or JCC judge of compensation claims.

(3) The certification applicationprocess shall be considered properly completed when the physician correctly answers 95% of the online EMA Tutorial questions and uploads to the above-referenced DWC EMA Website accompaniedby the following the required documentation, establish that the qualifications for Expert Medical Advisor certification asset forth in Rule 69L-30.003, F.A.C., have been met Failure to properly complete the certification process shall result in the application being rejected. Subject to the limitations in this rule chapter, a rejected applicant can immediately re-apply.

(a) To document specialty-board certification or specialty-board eligibility, the applicant must submit a copy of a current certificate of national specialty-board certification or written proof of specialty-board eligibility and documentation that indicates any expiration date for specialty-board certification or specialty-board eligibility applicable to the specialty for which the applicant seeks certification.

(b) To demonstrate experience in the assignment of permanent impairment ratings to Florida’s injured employees, pursuant to Rule 69L-7.604, F.A.C., the applicant must submit five completed DFS-F5-DWC-25 forms(with all patient identification redacted) indicating assignment of the date of maximum medical improvement and calculation of the permanent impairment rating for injured employee evaluations completed within the two-year period immediately preceding the date of application; and

(c) To demonstrate experience in performing independent medical examinations pursuant to Section 440.13(2) or 440.13(5), F.S., the applicant must submit copies of five independent medical examination reports (with all patient identification redacted) written for workers’ compensation injured employees within the two-year period immediately preceding the date of application; and

(d) To demonstrate completion of twenty hours of continuing medical education specifically related to the practitioner’s field of specialty, the applicant must submit copies of certificates of completion for twenty hours of continuing medical education, related to the specialty field of practice, completed within the two-year period immediately preceding the date of application. Certificates for courses required for licensure by the Florida Department of Health addressing Domestic Violence, HIV-AIDS and Prevention of Medical Errors will not be applied to the medical education requirements for Expert Medical Advisor certification; and

(4) Successful applicants shall receive an electronically generated EMA Certificate issued by the Department’sDivision of Workers’ Compensation. To demonstrate knowledge of Florida Workers’ Compensation, the physician must attest to knowledge of the Florida Statutes related to workers’ compensation, specifically Sections 440.02, 440.09, 440.093, 440.102, 440.105, 440.13, 440.134, 440.15(3), 440.15(5), 440.151, 440.20 and 440.491, F.S.; and knowledge of the Florida Administrative Code Rules 69L-7.602 and 69L-7.020. If an Expert Medical Advisor applicant is not otherwise familiar with the statutes and rules identified above, he/she may attest to familiarity with those rules and statutes upon completion of the Workers’ Compensation Health Care Provider Educational Tutorial available on the Department of Financial Services, Division of Workers’ Compensation’s website: www.myfloridacfo.com/wc.

(5) Upon issuance of the EMA Certificate, the following provider information will be recorded on the Certification List:

(a) Certificate expiration date;

(b) First and Last Name;

(c) DOH license number and licensure status;

(d) Place of business, name, address(es) and telephone number(s); and

(e) Specialty board affiliation(s) and sub-specialty(ies) and certification status.

(6)(5)The Department shall deny applications that do not meet the minimum requirements set forth in Rule 69L-30.003, F.A.C. will review the Expert Medical Advisor certification application, pursuant to the requirements of Section 120.60, Florida Statutes, and notify the applicant of any deficiencies. If the Department does not receive, within 30-calendar days of the applicant’s receipt of notice of deficiencies, information curing all deficiencies identified by the Department, of deficiencies, the Expert Medical Advisor Certification Application will be denied.

(6) Throughout the certification period, the Expert Medical Advisor shall notify the Department:

(a) If specialty-board certification has expired.

(b) If Florida Department of Health license status is changed from “clear and active.”

(c) Of any change in address or contact information.

(7) Expert Medical Advisor Certifications shall be for a period of two years. If at any time during the certification period, the physician no longer meets all qualifications for Expert Medical Advisor certification, the EMAExpert Medical Advisor certification shall be decertified and removed from the Certification List revoked.

(8) An EMA who fails to obtain certification renewal before the expiration of the two year certification period is ineligible to perform EMA services and will be removed from the Certification List until such time as the EMA re-applies and his/her re-certification is approved.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.005 Selection of Expert Medical Advisors.

(1) All individuals on the Certification List are eligible contracted to provide EMA services for through certification as an Expert Medical Advisor will be placed on an Department list of certified Expert Medical Advisors eligible for selection as an Expert Medical Advisor by the Department or a JCCjudge of compensation claims.

(2) When Expert Medical Advisorservices are needed by the Department, the Department shall:

(a) Select an EMA Expert Medical Advisor from the Certification ListDepartment’s list of certified Expert Medical Advisors; and

(b) Make the necessary arrangements for the EMA Expert Medical Advisor to provide the Expert Medical Advisorservices.

(3) When Expert Medical Advisorservices are needed in a proceeding before a JCC judge of compensation claims, the JCC judge of compensation claimsshall:

(a) Select an EMA Expert Medical Advisor from the Certification List Department’s list of certified Expert Medical; and

(b) Make the necessary arrangements for the EMA Expert Medical Advisorto provide the Expert Medical Advisor services.

(4) Upon receiving notice of selection by the Department or JCC judge of compensation claims as anExpert Medical Advisor, the EMA physician shall disclose any conflict of interest related to the case for which the physician was selected and shall decline selection if a conflict of interest, pursuant to Rule 69L-30.007, F.A.C., exists as an Expert Medical Advisor.

(5) A physician who has been disciplined for a violation decertifiedpursuant to Section 440.13, F.S. Chapter 69L-29, F.A.C., and/or has ever been decertified pursuant to Rule 69L-30.010, F.A.C., or who, pursuant to a final order, has been found to have violated Chapter 440, F.S., shall not be certified as an EMA Expert Medical Advisor.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.006Temporary Expert Medical Advisors.

(1) When a JCC judge of compensation claims cannot identify an EMA needs Expert Medical Advisor services and there is no Expert Medical Advisor from the physicians on the Certification ListDepartment’s list of certified Expert Medical Advisor who meets the needs of the judge of compensation claims and is available to provide the Expert Medical Advisor services needed, the JCC judge of compensation claims may propose a specific physician for temporary Expert Medical Advisor certification by the Department.

(2) The Department will certify the specificphysician proposed by the JCC judge of compensation claims as a Temporary EMA for a specific case, Expert Medical Advisor if one of the following is met:

(a) All parties in a proceeding before the JCC judge of compensation claims stipulate to the qualifications of the medical specialty-board certified or board eligible physician to provide Expert Medical Advisor services in the JCC judge of compensation claims proceeding; or

(b) The physician has a clearvalid and active license to practice medicine, has medical specialty-board certification or is board eligible, and the JCC judge of compensation claims has established that the physician has training or experience applicable to the specific medical issue before the JCC judge of compensation claims.

(3) Certification as a temporary Expert Medical Advisor shall be limited to the specific case for which the judge of compensation claims proposed the physician for temporary Expert Medical Advisor certification.

(3)(4) A physician who has been disciplined for a violation decertified pursuant to Section 440.13, F.S., Chapter 69L-29, F.A.C., and/or has ever been decertified  to Rule 69L-30.010, F.A.C.,shall not be certified as a Temporary EMA Expert Medical Advisor.

(4)(5) Upon receiving notice of selection by the JCC judge of compensation claims as a Temporary EMA Expert Medical Advisor, the physician shall disclose any conflict of interest related to the case for which the physician was selected and shall decline selection as a Temporary EMA if a conflict of interest, pursuant toRule 69L-30.007, F.A.C., exists Expert Medical Advisor.

(5) When the Department needs EMA services and there is no EMA on the Certification List who meets the needs of the Department or who is available to provide the EMA services needed, the Department may certify aphysician as a Temporary EMA, for a specific case, if the physician:

(a) Holds a clear active medical license or a valid Florida medical school teaching certificate pursuant to Sections 458.3145, 459.0077, 463.0057 or 466.002, F.S.; and

(b) Holds board certification or is board eligible in the specialty area needed by the Department to fulfill its responsibilities under subsections 440.13(9) and (11), F. S.

(6) Upon receiving notice of selection by the Department as a Temporary EMA, the physician shall disclose any conflict of interest related to the case for which the physician was selected and shall decline selection, if a conflict of interest, pursuant to Rule 69L-30.007, F.A.C., exists.

(7) Any physician certified as a Temporary EMA shall have the same duties and responsibilities under this rule chapter as a certified EMA.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.007 Expert Medical Advisor Responsibilities.

(1) A physician shall disclose any conflict of interest upon receiving notice of selection as an EMA or Temporary EMA Expert Medical Advisor and shall not accept selection if a conflict of interest exists. For the purposes of this rule, “conflict of interest” means that any of the following matters may exist, potentially influencing the EMA’s Expert Medical Advisor’s opinions and decisions while fulfilling responsibilities to evaluate the medical care provided the injured employee by the examining physician:

(a) through (b) No change.

(2) An EMA shall be responsible for notifying the Department of any change in the physician’s license or board certification status or change in address or contact information, within 30 days of the change. EMAs may notify the Department by updating their profiles through the DWC EMA Website at www.myfloridacfo.com/division/wc/provider.html, or by emailing the Department at workers.compmedservice@myfloridacfo.com. EMAs may also forward documentation regarding such changes to the Division of Workers’ Compensation, Medical Services Section, c/o Department of Financial Services,200 E. Gaines Street, Tallahassee, Florida, 32399-4232.

(3)(2) When the  JCC judge of compensation claimsselects an EMA or Temporary EMA Expert Medical Advisor, the EMA or Temporary EMA Expert Medical Advisor shall complete and submit a written report to the JCCjudge of compensation claims within 15 calendar days following receipt of all medical records and, when appropriate, the examination of the injured employee. The medical records to which may be submitted to an ExpertMedical Advisor shall be within the discretion of the JCC judge of compensation claims.

(4)(3) When the Department selects an EMA or Temporary EMA Expert Medical Advisor and provides the complete medical record for the treatment under review, the EMA or Temporary EMAExpert Medical Advisor shall complete and submit a written report to the Department within 15 calendar days 15-calendar days following receipt of all medical records. Should an EMA find it necessary to perform an examination of the injured employee, the EMA’s written report shall be submitted to the Department within 15 calendar days following the completion of such examination.

(5)(4) The EMAor Temporary EMA Expert Medical Advisor shall furnish a copy of the written report to the insurer and to the injured employee pursuant to paragraph Section440.13(9)(d), F.S.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.008 Billing and Reimbursement for Expert Medical Advisor Services.

(1) Within 30 calendar days following submittal completion of the written report, the EMA physician must submit billing, per the contract with the Department or JCC, for Expert Medical Advisorservices on the Department approved or judge of compensation claims approved invoice, as applicable, documenting total number of hours and total dollar charges for the contracted services.

(2) In a judge of compensation claims proceeding, If additional diagnostic testing is required for the EMA Expert Medical Advisor to render a medical opinion, charges for diagnostic testing shall:

(a) Require prior authorization from the JCC judge of compensation claims or of the Department; and

(b) Be billed in accordance with Rule 69L-7.710 69L-7.602, F.A.C.; and

(c) No change.

(3) Within 45 calendar days from receipt of both the Expert Medical Advisor’s copy of the written report and invoice, reimbursement shall be rendered to the EMA Expert Medical Advisor pursuant to paragraph Section 440.13(9)(f), F.S.

(4) Hourly reimbursement for EMA Expert Medical Advisor services shall be include reimbursement for all services rendered except specialty-diagnostic testing.

(5) Reimbursement for Expert Medical Advisor services, pursuant to an EMA Expert Medical Advisor Contract, in accordance with subsections 69L-30.005(2) and (3), F.A.C., shall be as follows:

(a) Except as provided in paragraph (b), For an Expert Medical Advisor selected by the Department pursuant to subsection 69L-30.005(2), F.A.C., reimbursement for shall not exceed $300.00 $200.00 per hour,for no more than 8 hours per case, not including reasonable expenses associated with travel, when applicable, which will be reimbursed in accordance with Section 112.061 112.081, F.S. The review shall not exceed 8 hours per case unless specifically approved in writing by the Department or JCC, as applicable.

(b) When an examination of an injured employee is required for the EMA to render a medical opinion, charges for an examination shall:

1. Require prior authorization from the requesting party;

2. Be billed in accordance with Rule 69L-7.710, F.A.C.; and

3. Be reimbursed in accordance with the appropriate Florida Division of Workers’ Compensation reimbursement manual in effect on the date services were rendered. For an Expert Medical Advisor selected by a judge of compensation claims pursuant to subsection 69L-30.005(3), F.A.C., reimbursement shall not exceed $300.00 per hour, nor more than 8 hours per case, not including reasonable expenses associated with travel, when applicable, which will be reimbursed in accordance with Section 112.081, F.S.

(c) An EMA shall be reimbursed for travel and other administrative expenses consistent with the terms of the contract between the EMA and the Department.

(d) Fees for EMA deposition testimony are limited to $200 per hour, pursuant to subsection 440.13(10), F.S.

PROPOSED EFFECTIVE DATE: March 1, 2016

69L-30.010 Expert Medical Advisor Decertification.

(1) An EMA Expert Medical Advisor shall be decertified and removed from the Certification List for any one of the following:

(a) Pursuant to a final order,the EMA physician was found to have engaged in a standard of care or billing violation under subsections 440.13, (8) and (13), F.S.; or removed from the list of physicians authorized to provide services to workers’ compensation injured employees.

(b) The EMA physician fails to report a conflict of interest and decline selection in a case assignment as required in Rule 69L-30.004, F.A.C.; or

(c) The EMA no longer meets the criteria for EMA status pursuant to Rule 69L-30.003, F.A.C.

(2) An EMA If anExpert Medical Advisor is decertified by the Department, for any reason other than that described in (1)(c) above, the physician shall not be eligible for re-certification certificationas an EMA Expert Medical Advisor in the future.

PROPOSED EFFECTIVE DATE: March 1, 2016

The remainder of the proposed rule reads as previously published.