Verisk Analytics : New Kentucky Workers’ Compensation Law Limits Treatment to 780 Weeks for Certain Claims

On March 30, 2018, Kentucky House Bill (HB-2) was signed into law which makes major changes to the Kentucky workers' compensation statute. The most significant addition is language that limits medical treatment to 780 weeks for permanent partial disability claims. The change is a significant shift from the prior unlimited coverage period for disabled employees.

Overview of the changes

HB-2 amends Kentucky Revised Statutes (KRS 342.020) section to limit future medical treatment to 780 weeks from the date of injury or date of last exposure in permanent partial disability cases. Excluded from the new law are permanent total disability claims and claims involving amputation, loss of hearing, loss of eye(s), loss of teeth, and paralysis.

It is significant to note that the 780 week limit is not a hard cap to medical benefits - meaning the amended provisions allow the employee to obtain a continuation of benefits for care that is reasonably necessary after the 780 week period. To that end, the Kentucky workers' compensation commissioner is required at week 754 to notify the employee of this right in writing. The employee then has up to 75 days prior to the conclusion of the 780 week period to file an application for the continuation of medical benefits. Once an application is filed, an administrative law judge is assigned to review the case and will determinate whether or not to grant the continuation.

Potential WCMSA Impact

In WCMSA Reference Guide (Version 2.6, July 2017), the Centers for Medicare and Medicaid Services (CMS) indicated it would consider applying state medical treatment limitations when reviewing a WCMSA if the parties are able to show '…that the specific WCMSA proposal does not meet the state's list of exemptions to the legislative mandate.' On this point, CMS has recently started (finally) recognizing Georgia's 400 week limitation on future medical treatment for qualifying Georgia workers' compensation cases in certain situations.

Historically, CMS has been slow in recognizing statutory caps on treatment and it is very likely this will occur now in relation to Kentucky's new statutory limits. Unlike the Georgia 400 week limitation, the Kentucky statute leaves open the possibility of continued care after 780 weeks. This is significant since in similar circumstances in the past, CMS has taken the position that without a definitive cut off point, future treatment could extend past the standard limitation and CMS has been reluctant to accept that exposure when approving WCMSAs.

Nevertheless, the recent changes are a new opportunity for stakeholders to present the issue to CMS. For example, there may be an argument to request approval of a WCMSA limiting future treatment after the expiration of the 780 weeks. In this situation, the argument being that a $0.00 MSA should be approved if the parties are able to show that the 780 weeks elapsed for the claim and the carrier is no longer statutorily responsible for ongoing medical treatment. It is unknown whether CMS would accept this argument, and we will need to monitor just how CMS will view the new Kentucky limitations going forward.

How we can help

Identifying and arguing state nuance considerations to reduce costs in a WCMSA is a hallmark of our unique brand of applying both a legal and medical analysis to MSP compliance. ISO Claims Partners will continue to monitor this issue closely and will advocate for you to obtain the best results.

If you have any questions, or would like assistance with arguing the 780 week limitation rule, please do not hesitate to contact Sid Wong at 978.825.8262 or sidney.wong@verisk.com.