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SENATE FLOOR VERSION
April 9, 2024
ENGROSSED HOUSE
BILL NO. 3508 By: Sneed of the House
and
McCortney of the Senate
An Act relating to the Employee Group Insurance
Division; transferring the Employee Group Insurance
Division from the Office of Management and Enterprise
Services to the Oklahoma Health Care Authority;
amending 36 O.S. 2021, Section 6802, which relates to
definitions for the Oklahoma Telemedicine Act;
transferring the Employee Group Insurance Division
from the Office of Management and Enterprise Services
to the Oklahoma Health Care Authority; amending 63
O.S. 2021, Section 2 -309I, as amended by Section 1,
Chapter 257, O.S.L. 2022 (63 O.S. Supp. 2023, Section
2-309I), which relates to prescription requirements
for opioids and benzod iazepines; transferring the
Employee Group Insurance Division from the Office of
Management and Enterprise Services to the Oklahoma
Health Care Authority; amending 74 O.S. 2021, Section
1304.1, which relates to Oklahoma Employees Insurance
and Benefits Board; transferring the Employee Group
Insurance Division from the Office of Management and
Enterprise Services to the Oklahoma Heal th Care
Authority; amending 85A O.S. 2021, Section 50, which
relates to employer required to provide prompt
medical treatment and fee schedule; transferring the
Employee Group Insurance Division from the Office of
Management and Enterprise Services to the Oklahoma
Health Care Authority; providing for codification;
providing an effective date; and declaring an
emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1304.2 of Title 74, unless there
is created a duplication in numbering, reads as follows:
Effective July 1, 2024, the Employee Group Insurance Division of
the Office of Management and Enterprise Services shall be
transferred to the Oklahoma Health Care Authority. All unexpended
funds, property, records, personnel, and any outstanding f inancial
obligations or encumbrances of the Office of Management and
Enterprise Services which relate to the Employee Group Division
Insurance Division are hereby transferred to the Oklahoma Health
Care Authority.
SECTION 2. AMENDATORY 36 O. S. 2021, Section 6802, is
amended to read as follows:
Section 6802. As used in the Oklahoma Telemedicine Act:
1. "Distant site" means a site at which a health care
professional licensed to practice in this state is located while
providing health care services by means of telemedicine;
2. a. "Health benefits plan" means any plan or arrangement
that:
(1) provides benefits for medical or surgical
expenses incurred as a result of a health
condition, accident or illness, and
(2) is offered by any insurance c ompany, group
hospital service corporation or health
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maintenance organization that delivers or issues
for delivery an individual, group, blanket or
franchise insurance policy or insurance
agreement, a group hospital service contract or
an evidence of coverage, or, to the extent
permitted by the Employee Retirement Income
Security Act of 1974, 29 U.S.C., Section 1001 et
seq., by a multiple employer welfare arrangement
as defined in Section 3 of the Employee
Retirement Income Security Act of 1974, or any
other analogous benefit arrangement, whether the
payment is fixed or by indemnity,
b. Health benefits plan shall not include:
(1) a plan that provides coverage:
(a) only for a specified disease or diseases or
under an individual limited benefit poli cy,
(b) only for accidental death or dismemberment,
(c) only for dental or vision care,
(d) for a hospital confinement indemnity policy,
(e) for disability income insurance or a
combination of accident -only and disability
income insurance, or
(f) as a supplement to l iability insurance,
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(2) a Medicare supplemental policy as defined by
Section 1882(g)(1) of the Social Security Act (42
U.S.C., Section 1395ss),
(3) workers' compensation insurance coverage,
(4) medical payment insurance issued as part of a
motor vehicle insurance policy,
(5) a long-term care policy including a nursing home
fixed indemnity policy, unless a determination is
made that the policy provides benefit coverage so
comprehensive that the policy meets the
definition of a health benefits plan,
(6) short-term health insurance issued on a
nonrenewable basis with a duration of six (6)
months or less, or
(7) a plan offered by the Employees Group Insurance
Division of the Office of Management and
Enterprise Services Oklahoma Health Care
Authority;
3. "Health care professional" means a physician or other health
care practitioner licensed, accredited or certified to perform
specified health care services consistent with state law;
4. "Insurer" means any entity providing an accident and health
insurance policy in this state including, but not limited to, a
licensed insurance company, a not -for-profit hospital service and
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medical indemnity corporation, a fraternal benefit society, a
multiple employer welfare arrangement or any other entity subject to
regulation by the Insurance Commissioner;
5. "Originating site" means a site at which a patient is
located at the time health care services are provided to him or her
by means of telemedicine, which may include, but shall not be
restricted to, a patient's home, workp lace or school;
6. "Remote patient monitoring services" means the delivery of
home health services using telecommunications technology to enhance
the delivery of home health care including monitoring of clinical
patient data such as weight, blo od pressure, pulse, pulse oximetry,
blood glucose and other condition -specific data, medication
adherence monitoring and interactive video conferencing with or
without digital image upload;
7. "Store and forward transfer" means the transmission of a
patient's medical information either to or from an originating site
or to or from the health care professional at the distant site, but
does not require the patient being present nor must it be in real
time; and
8. "Telemedicine" or "telehealth" means technolo gy-enabled
health and care management and delivery systems that extend capacity
and access, which includes:
a. synchronous mechanisms, which may include live
audiovisual interaction between a patient and a health
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care professional or real -time provider-to-provider
consultation through live interactive audiovisual
means,
b. asynchronous mechanisms, which include store and
forward transfers, online exchange of health
information between a patient and a health care
professional and online exchange of health in formation
between health care professionals, but shall not
include the use of automated text messages or
automated mobile applications that serve as the sole
interaction between a patient and a health care
professional,
c. remote patient monitoring, and
d. other electronic means that support clinical health
care, professional consultation, patient and
professional health-related education, public health
and health administration.
SECTION 3. AMENDATORY 63 O.S. 2021, Section 2 -309I, as
amended by Section 1, Chapter 257, O.S.L. 2022 (63 O.S. Supp. 2023,
Section 2-309I), is amended to read as follows:
Section 2-309I. A. A practitioner shall not issue an initial
prescription for an opioid drug in a quantity exceeding a seven -day
supply for treatment of acute pain. Any opioid prescription for
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acute pain shall be for the lowest effective dose of an immediate -
release drug.
B. Prior to issuing an initial prescription for an opioid drug
in a course of treatment for acute or chronic pain, a practitioner
shall:
1. Take and document the results of a thorough medical history,
including the experience of the patient with nonopioid medication
and nonpharmacological pain -management approaches and substance
abuse history;
2. Conduct, as appropriate, and doc ument the results of a
physical examination;
3. Develop a treatment plan with particular attention focused
on determining the cause of pain of the patient;
4. Access relevant prescription monitoring information from the
central repository purs uant to Section 2-309D of this title;
5. Limit the supply of any opioid drug prescribed for acute
pain to a duration of no more than seven (7) days as determined by
the directed dosage and frequency of dosage; provided, however, upon
issuing an initial prescription for acute pain pursuant to this
section, the practitioner may issue one (1) subsequent prescription
for an opioid drug in a quantity not to exceed seven (7) days if:
a. the subsequent prescription is due to a major surgical
procedure or "confine d to home" status as defined in
42 U.S.C., Section 1395n(a),
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b. the practitioner provides the subsequent prescription
on the same day as the initial prescription,
c. the practitioner provides written instructions on the
subsequent prescription indicating the earliest date
on which the prescription may be filled, otherwise
known as a "do not fill until" date, and
d. the subsequent prescription is dispensed no more than
five (5) days after the "do not fill until" date
indicated on the prescription;
6. In the case of a patient under the age of eighteen (18)
years, enter into a patient -provider agreement with a parent or
guardian of the patient; and
7. In the case of a patient who is a pregnant woman, enter into
a patient-provider agreement with the patient.
C. No less than seven (7) days after issuing the initial
prescription pursuant to subsection A of this section, the
practitioner, after consultation with the patient, may issue a
subsequent prescription for the drug to the patient in a quantity
not to exceed seven (7) days, provided that:
1. The subsequent prescription would not be deemed an initial
prescription under this section;
2. The practitioner determines the prescription is necessary
and appropriate to the treatment needs of the patient and documents
the rationale for the issuance of the subsequent prescription; and
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3. The practitioner determines that issuance of the subsequent
prescription does not present an undue risk of abuse, addiction or
diversion and documents that determination.
D. Prior to issuing the initial prescription of an opioid drug
in a course of treatment for acute or chronic pain and again prior
to issuing the third prescription of the course of treatment, a
practitioner shall discuss with the patient or the parent or
guardian of the patie nt if the patient is under eighteen (18) years
of age and is not an emancipated minor, the risks associated with
the drugs being prescribed, including but not limited to:
1. The risks of addiction and overdose associated with opioid
drugs and the dangers of taking opioid drugs with alcohol,
benzodiazepines and other central nervous system depressants;
2. The reasons why the prescription is necessary;
3. Alternative treatments that may be available; and
4. Risks associated with the use of the drugs being prescribed,
specifically that opioids are highly addictive, even when taken as
prescribed, that there is a risk of developing a physical or
psychological dependence on the controlled dangerous substance, and
that the risks of taking more opioid s than prescribed or mixing
sedatives, benzodiazepines or alcohol with opioids can result in
fatal respiratory depression.
The practitioner shall include a note in the medical record of
the patient that the patient or the parent or guardian of the
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patient, as applicable, has discussed with the practitioner the
risks of developing a physical or psychological dependence on the
controlled dangerous substance and alternative treatments that may
be available. The applicable state licensing board of the
practitioner shall develop and make available to practitioners
guidelines for the discussion required pursuant to this subsection.
E. At the time of the issuance of the third prescription for an
opioid drug, the practitioner shall enter into a patient -provider
agreement with the patient.
F. When an opioid drug is continuously prescribed for three (3)
months or more for chronic pain, the practitioner shall:
1. Review, at a minimum of every three (3) months, the course
of treatment, any new information about the e tiology of the pain,
and the progress of the patient toward treatment objectives and
document the results of that review;
2. In the first year of the patient -provider agreement, assess
the patient prior to every renewal to determine whether the patient
is experiencing problems associated with an opioid use disorder as
defined by the American Psychiatric Association and document the
results of that assessment. Following one (1) year of compliance
with the patient-provider agreement, the practitioner shall assess
the patient at a minimum of every six (6) months;
3. Periodically make reasonable efforts, unless clinically
contraindicated, to either stop the use of the controlled substance,
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decrease the dosage, try other drugs or treatment modalities in an
effort to reduce the potential for abuse or the development of an
opioid use disorder as defined by the American Psychiatric
Association and document with specificity the efforts undertaken;
4. Review the central repository information in accordance with
Section 2-309D of this title; and
5. Monitor compliance with the patient -provider agreement and
any recommendations that the patient seek a referral.
G. 1. Any prescription for acute pain pursuant to this section
shall have the words "acute pain" notated on the face of the
prescription by the practitioner.
2. Any prescription for chronic pain pursuant to this section
shall have the words "chronic pain" notated on the face of the
prescription by the practitioner.
H. This section shall not apply to a prescr iption for a
patient:
1. Who has sickle cell disease;
2. Who is in treatment for cancer or receiving aftercare cancer
treatment;
3. Who is receiving hospice care from a licensed hospice;
4. Who is receiving palliative care in conjunction with a
serious illness;
5. Who is a resident of a long -term care facility; or
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6. For any medications that are being prescribed for use in the
treatment of substance abuse or opioid dependence.
I. Every policy, contract or plan delivered, issued, executed
or renewed in this state, or approved for issuance or renewal in
this state by the Insurance Commissioner, and every contract
purchased by the Employees Group Insurance Division of the Office of
Management and Enterprise Services Oklahoma Health Care Authority ,
on or after November 1, 2018, that provides coverage for
prescription drugs subject to a copayment, coinsurance or deductible
shall charge a copayment, coinsurance or deductible for an initial
prescription of an opioid drug prescribed pursuant to this section
that is either:
1. Proportional between the cost sharing for a thirty -day
supply and the amount of drugs the patient was prescribed; or
2. Equivalent to the cost sharing for a full thirty -day supply
of the drug, provided that no additional cost sharing may be charged
for any additional prescriptions for the remainder of the thirty -day
supply.
J. Any practitioner authorized to prescribe an opioid drug
shall adopt and maintain a written policy or policies that include
execution of a written agreement to enga ge in an informed consent
process between the prescribing practitioner and qualifying opioid
therapy patient. For the purposes of this section, "qualifying
opioid therapy patient" means:
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1. A patient requiring opioid treatment for more than three (3)
months;
2. A patient who is prescribed benzodiazepines and opioids
together for more than one twenty -four-hour period; or
3. A patient who is prescribed a dose of opioids that exceeds
one hundred (100) morphine equivalent doses.
K. Nothing in the Anti -Drug Diversion Act shall be construed to
require a practitioner to limit or forcibly taper a patient on
opioid therapy. The standard of care requires effective and
individualized treatment for each patient as deemed appropriate by
the prescribing practitioner without an administrative or codified
limit on dose or quantity that is more restrictive than approved by
the Food and Drug Administration (FDA).
SECTION 4. AMENDATORY 74 O.S. 2021, Section 1304.1, is
amended to read as follows:
Section 1304.1 A. The State and Education Employees Group
Insurance Board and the Oklahoma State Employees Benefits Council
are hereby abolished. Wherever the State and Education Employees
Group Insurance Board and the Oklahoma State Employees Benefits
Council are referenced in law, that reference shall be construed to
mean the Oklahoma Employees Insurance and Benefits Board.
B. There is hereby created the Oklahoma Employees Insurance and
Benefits Board.
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C. The chair and vice -chair shall be elected by the Board
members at the first meeting of the Board and shall preside over
meetings of the Board and perform other duties as may be required by
the Board. Upon the resignation or expiration of the term of the
chair or vice-chair, the members shall elect a chair or v ice-chair.
The Board shall elect one of its members to serve as secretary.
D. The Board shall consist of seven (7) members to be appointed
as follows:
1. The State Insurance Commissioner, or designee;
2. Four members shall be appointed by th e Governor;
3. One member shall be appointed by the Speaker of the Oklahoma
House of Representatives; and
4. One member shall be appointed by the President Pro Tempore
of the Oklahoma State Senate.
E. The appointed members shall:
1. Have demonstrated professional experience in investment or
funds management, public funds management, public or private group
health or pension fund management, or group health insurance
management;
2. Be licensed to practice law in this state and have
demonstrated professi onal experience in commercial matters; or
3. Be licensed by the Oklahoma Accountancy Board to practice in
this state as a public accountant or a certified public accountant.
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In making appointments that conform to the requirements of this
subsection, at least one but not more than three members shall be
appointed each from paragraphs 2 and 3 of this subsection by the
combined appointing authorities.
F. Each member of the Board shall serve a term of four (4)
years from the date of appointment.
G. Members of the Board shall be subject to the following:
1. The appointed members shall each receive compensation of
Five Hundred Dollars ($500.00) per month. Appointed members who
fail to attend a regularly scheduled meeting of the Board shall not
receive the related compen sation;
2. The appointed members shall be reimbursed for their
expenses, according to the State Travel Reimbursement Act, as are
incurred in the performance of their duties, which shall be paid
from the Health Insurance Reserve Fund;
3. In the event an appointed member does not attend at least
seventy-five percent (75%) of the regularly scheduled meetings of
the Board during a calendar year, the appointing authority may
remove the member;
4. A member may also be removed for any other cause as provided
by law;
5. No Board member shall be individually or personally liable
for any action of the Board; and
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6. Participation on the Board is contingent upon maintaining
all necessary annual training as may be required through the Health
Insurance Portability and Accountability Act of 1996, Medicare
contracting requirements or other statutory or regulatory
guidelines.
H. The Board shall meet as often as necessary to conduct
business but shall meet no less than four times a year, with an
organizational meeting to be held prior to December 1, 2012. The
organizational meeting shall be called by the Insurance
Commissioner. A majority of the members of the Board shall
constitute a quorum for the transaction of business, and any
official action of the Boar d must have a favorable vote by a
majority of the members of the Board present.
I. Except as otherwise provided in this subsection, no member
of the Board shall be a lobbyist registered in this state as
provided by law, or be employed directly or indirectly by any f irm
or health care provider under contract to the State and Education
Employees Group Insurance Board, the Oklahoma State Employees
Benefits Council, or the Oklahoma Employees Insurance and Benefits
Board, or any benefit program under its jurisd iction, for any goods
or services whatsoever. Any physician member of the Board shall not
be subject to the provisions of this subsection.
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J. Any vacancy occurring on the Board shall be filled for the
unexpired term of office in the same manner as provided for in
subsection D of this section.
K. The Board shall act in accordance with the provisions of the
Oklahoma Open Meeting Act, the Oklahoma Open Records Act and the
Administrative Procedures Act.
L. The Administrative Director of the Courts shall des ignate
grievance panel members as shall be necessary. The members of the
grievance panel shall consist of two attorneys licensed to practice
law in this state and one state licensed health care professional or
health care administrator who has at least three (3) yea rs practical
experience, has had or has admitting privileges to a hospital in
this state, has a working knowledge of prescription medication, or
has worked in an administrative capacity at some point in their
career. The state health care profe ssional shall be appointed by
the Governor. At the Governor's discretion, one or more qualified
individuals may also be appointed as an alternate to serve on the
grievance panel in the event the Governor's primary appointee
becomes unable to serve.
M. The Office of Management and Enterprise Services Oklahoma
Health Care Authority shall have the following duties,
responsibilities and authority with respect to the administration of
the flexible benefits plan authorized pursuant to the State
Employees Flexible Benefits Act:
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1. To construe and interpret the plan, and decide all questions
of eligibility in accordance with the Oklahoma State Employees
Benefits Act and 26 U.S.C.A., Section 1 et seq.;
2. To select those benefits which shall be made available to
participants under the plan, according to the Oklahoma State
Employees Benefits Act, and other applicable laws and rules;
3. To prescribe procedures to be followed by participants in
making elections and filing claims under the plan;
4. Beginning with th e plan year which begins on January 1,
2013, to select and contract with one or more providers to offer a
group TRICARE Supplement product to eligible employees who are
eligible TRICARE beneficiaries. Any membership dues required to
participate in a group TRICARE Su pplement product offered pursuant
to this paragraph shall be paid by the employee. As used in this
paragraph, "TRICARE" means the Department of Defense health care
program for active duty and retired service members and their
families;
5. To prepare and distribute information communicating and
explaining the plan to participating employers and participants.
Health Maintenance Organizations or other third -party insurance
vendors may be directly or indirectly involved in the distribution
of communicated information to participating state agency employers
and state employee participants subject to the following condition:
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the Board shall verify all marketing and communications information
for factual accuracy prior to distribution;
6. To receive from participating employers and participants
such information as shall be necessary for the proper administration
of the plan, and any of the benefits offered thereunder;
7. To furnish the participating employers and participants such
annual reports with respect t o the administration of the plan as are
reasonable and appropriate;
8. To keep reports of benefit elections, claims and
disbursements for claims under the plan;
9. To negotiate for best and final offer through competitive
negotiation with the assistance and through the purchasing
procedures adopted by the Office of Management and Enterprise
Services Oklahoma Health Care Authority and contract with federally
qualified health maintenance organizations under the provisions of
42 U.S.C., Section 300e et seq., or with Health Maintenance
Organizations granted a certificate of authority by the Insurance
Commissioner pursuant to the Health Maintenance Reform Act of 2003
for consideration by participants as an alternative to the health
plans offered by the Oklahoma Employees Insurance and Benefits
Board, and to transfer to the health maintenance organizations such
funds as may be approved for a participant electing health
maintenance organization alternative services. The Board may also
select and contract with a v endor to offer a point -of-service plan.
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An HMO may offer coverage through a point -of-service plan, subject
to the guidelines established by the Board. However, if the Board
chooses to offer a point -of-service plan, then a vendor that offers
both an HMO plan and a point-of-service plan may choose to offer
only its point-of-service plan in lieu of offering its HMO plan.
The Board may, however, renegotiate rates with successful bidders
after contracts have been awarded if there is an extraordinary
circumstance. An extraordinary circumstance shall be limited to
insolvency of a participating health maintenance organization or
point-of-service plan, dissolution of a participating health
maintenance organization or point -of-service plan or withdrawal of
another participating health maintenance organization or point -of-
service plan at any time during the calendar year. Nothing in this
section of law shall be construed to permit either party to
unilaterally alter the terms of the contract;
10. To retain as confi dential information the initial Request
For Proposal offers as well as any subsequent bid offers made by the
health plans prior to final contract awards as a part of the best
and final offer negotiations process for the benefit plan;
11. To promulgate administrative rules for the competitive
negotiation process;
12. To require vendors offering coverage to provide such
enrollment and claims data as is determined by the Board. The Board
shall be authorized to retain as confidential any proprietary
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information submitted in response to the Board's Request For
Proposal. Provided, however, that any such information requested by
the Board from the vendors shall only be subject to the
confidentiality provision of this paragraph if it is clearly
designated in the Request For Proposal as being protected under this
provision. All requested information lacking such a designation in
the Request For Proposal shall be subject to Section 24A.1 et seq.
of Title 51 of the Oklahoma Statutes. From health maintenance
organizations, data provided shall include the current Health Plan
Employer Data and Information Set (HEDIS);
13. To authorize the purchase of any insurance deemed necessary
for providing benefits under the plan including indemnity dental
plans, provided that the only indemnity health plan selected by the
Board shall be the indemnity plan offered by the Board, and to
transfer to the Board such funds as may be approved for a
participant electing a benefit plan offered by the Board. All
indemnity dental plans sha ll meet or exceed the following
requirements:
a. they shall have a statewide provider network,
b. they shall provide benefits which shall reimburse the
expense for the following types of dental procedures:
(1) diagnostic,
(2) preventative,
(3) restorative,
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(4) endodontic,
(5) periodontic,
(6) prosthodontics,
(7) oral surgery,
(8) dental implants,
(9) dental prosthetics, and
(10) orthodontics, and
c. they shall provide an annual benefit of not less than
One Thousand Five Hundred Dollars ($1,500.00) for all
services other than orthodontic services, and a
lifetime benefit of not less than One Thousand Five
Hundred Dollars ($1,500.00) for orthodontic services;
14. To communicate deferred compensation programs as provided
in Section 1701 of Title 74 o f the Oklahoma Statutes;
15. To assess and collect reasonable fees from contracted
health maintenance organizations and third -party insurance vendors
to offset the costs of administration;
16. To accept, modify or reject elections under the plan in
accordance with the Oklahoma State Employees Benefits Act and 26
U.S.C.A., Section 1 et seq.;
17. To promulgate election and claim forms to be used by
participants;
18. To adopt rules requiring payment for medical and dental
services and treatment rendered by duly licensed hospitals,
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physicians and dentists. Unless the Board has otherwise contracted
with the out-of-state health care provider, the Board shall
reimburse for medical services and treatment rendered and charged by
an out-of-state health care provider at leas t at the same percentage
level as the network percentage level of the fee schedule
established by the Oklahoma Employees Insurance and Benefits Board
if the insured employee was referred to the out -of-state health care
provider by a physician or it was an emergency situation and the
out-of-state provider was the closest in proximity to the place of
residence of the employee which offers the type of health care
services needed. For purposes of this paragraph, health care
providers shall include, but not be limited to, physicians,
dentists, hospitals and special care facilities;
19. To enter into a contract with out -of-state providers in
connection with any PPO or hospital or medical network plan which
shall include, but not be limited to, special care facilities and
hospitals outside the borders of the State of Oklahoma. The
contract for out-of-state providers shall be identical to the in -
state provider contracts. The Board may negotiate for discounts
from billed charges when the out -of-state provider is not a network
provider and the member sought services in an emergency situation,
when the services were not otherwise available in the State of
Oklahoma or when the Administrator appointed by the Board approved
the service as an exceptional circu mstance;
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20. To create the establishment of a grievance procedure by
which a three-member grievance panel shall act as an appeals body
for complaints by insured employees regarding the allowance and
payment of claims, eligibility, and other matters. Except for
grievances settled to the satisfaction of both parties prior to a
hearing, any person who requests in writing a hearing before the
grievance panel shall receive a hearing before the panel. The
grievance procedure provided by this paragraph shall be the
exclusive remedy available to insured employees having complaints
against the insurer. Such grievance procedure shall be subject to
the Oklahoma Administrative Procedures Act, including provisions
thereof for review of agency decisions by the district court. T he
grievance panel shall schedule a hearing regarding the allowance and
payment of claims, eligibility and other matters within sixty (60)
days from the date the grievance panel receives a written request
for a hearing unless the panel orders a continuance for good cause
shown. Upon written request by the insured employee to the
grievance panel and received not less than ten (10) days before the
hearing date, the grievance panel shall cause a full stenographic
record of the proceedings to be made by a comp etent court reporter
at the insured employee's expense; and
21. To intercept monies owing to plan participants from other
state agencies, when those participants in turn owe money to the
Office of Management and Enterprise Services Oklahoma Health Care
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Authority, and to ensure that the participants are afforded due
process of law.
N. Except for a breach of fiduciary obligation, a Board member
shall not be individually or personally responsible for any action
of the Board.
O. The Board shall operate in an advisory capacity to the
Office of Management and Enterprise Services Oklahoma Health Care
Authority.
P. The members of the Board shall not accept gifts or
gratuities from an individual organization with a value in excess of
Ten Dollars ($10.00) per year. The provisions of this section shall
not be construed to prevent the members of the Board from attending
educational seminars, conferences, meetings or similar functions.
SECTION 5. AMENDATORY 85A O.S. 2021, Section 50, is
amended to read as follows:
Section 50. A. The employer shall promptly provide an injured
employee with medical, surgical, hospital, optometric, podiatric,
chiropractic and nursing services, along with any medicine,
crutches, ambulatory devices, a rtificial limbs, eyeglasses, contact
lenses, hearing aids, and other apparatus as may be reasonably
necessary in connection with the injury received by the employee.
The employer shall have the right to choose the treating physician
or chiropractor.
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B. If the employer fails or neglects to provide medical
treatment within five (5) days after actual knowledge is received of
an injury, the injured employee may select a physician or
chiropractor to provide medical treatment at the expense of the
employer; provided, however, that the injured employee, or another
in the employee's behalf, may obtain emergency treatment at the
expense of the employer where such emergency treatment is not
provided by the employer.
C. Diagnostic tests shall not be repeated sooner than six (6 )
months from the date of the test unless agreed to by the parties or
ordered by the Commission for good cause shown.
D. Unless recommended by the treating doctor or chiropractor at
the time claimant reaches maximum medical improvement or by an
independent medical examiner, continuing medical maintenance shall
not be awarded by the Commission. The employer or insurance carrier
shall not be responsible for continuing medical maintenance or pain
management treatment that is outside the parameters establishe d by
the Physician Advisory Committee or ODG. The employer or insurance
carrier shall not be responsible for continuing medical maintenance
or pain management treatment not previously ordered by the
Commission or approved in advance by the empl oyer or insurance
carrier.
E. An employee claiming or entitled to benefits under the
Administrative Workers' Compensation Act, shall, if ordered by the
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Commission or requested by the employer or insurance carrier, submit
himself or herself for medical examination. If an employee refuses
to submit himself or herself to examination, his or her right to
prosecute any proceeding under the Administrative Workers'
Compensation Act shall be suspended, and no compensation shall be
payable for the period of such r efusal.
F. For compensable injuries resulting in the use of a medical
device, ongoing service for the medical device shall be provided in
situations including, but not limited to, medical device battery
replacement, ongoing medication refills related to the medical
device, medical device repair, or medical device replacement.
G. The employer shall reimburse the employee for the actual
mileage in excess of twenty (20) miles round trip to and from the
employee's home to the location of a medical service pro vider for
all reasonable and necessary treatment, for an evaluation of an
independent medical examiner and for any evaluation made at the
request of the employer or insurance carrier. The rate of
reimbursement for such travel expense shall be the official
reimbursement rate as established by the State Travel Reimbursement
Act. In no event shall the reimbursement of travel for medical
treatment or evaluation exceed six hundred (600) miles round trip.
H. Fee Schedule.
1. The Commission shall conduct a rev iew and update of the
Current Procedural Terminology (CPT) in the Fee Schedule every two
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(2) years pursuant to the provisions of paragraph 14 of this
subsection. The Fee Schedule shall establish the maximum rates that
medical providers shall be reimbursed for medica l care provided to
injured employees including, but not limited to, charges by
physicians, chiropractors, dentists, counselors, hospitals,
ambulatory and outpatient facilities, clinical laboratory services,
diagnostic testing services, and ambul ance services, and charges for
durable medical equipment, prosthetics, orthotics, and supplies.
The most current Fee Schedule established by the Administrator of
the Workers' Compensation Court prior to February 1, 2014, shall
remain in effect, unless or until the L egislature approves the
Commission's proposed Fee Schedule.
2. Reimbursement for medical care shall be prescribed and
limited by the Fee Schedule. The director of the Employees Group
Insurance Division of the Office of Management and Enterpris e
Services Oklahoma Health Care Authority shall provide the Commission
such information as may be relevant for the development of the Fee
Schedule. The Commission shall develop the Fee Schedule in a manner
in which quality of medical care is assured and maintained f or
injured employees. The Commission shall give due consideration to
additional requirements for physicians treating an injured worker
under the Administrative Workers' Compensation Act, including, but
not limited to, communication with claims representatives, case
managers, attorneys, and representatives of employers, and the
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additional time required to complete forms for the Commission,
insurance carriers, and employers.
3. In making adjustments to the Fee Schedule, the Commission
shall use, as a benchm ark, the reimbursement rate for each Current
Procedural Terminology (CPT) code provided for in the fee schedule
published by the Centers for Medicare and Medicaid Services of the
U.S. Department of Health and Human Services for use in Oklahoma
(Medicare Fee Schedule) on the effective date of this section,
workers' compensation fee schedules employed by neighboring states,
the latest edition of "Relative Values for Physicians" (RVP), usual,
customary and reasonable medical payments to workers' compensation
health care providers in the same trade area for comparable
treatment of a person with similar injuries, and all other data the
Commission deems relevant. For services not valued by CMS, the
Commission shall establish values based on the usual, customary and
reasonable medical payments to health care providers in the same
trade area for comparable treatment of a person with similar
injuries.
a. No reimbursement shall be allowed for any magnetic
resonance imaging (MRI) unless the MRI is provided by
an entity that meets Medicare requirements for the
payment of MRI services or is accredited by the
American College of Radiology, the Intersocietal
Accreditation Commission or the Joint Commission on
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Accreditation of Healthcare Organizations. For all
other radiology procedures, the reimbursement rate
shall be the lesser of the reimbursement rate allowed
by the 2010 Oklahoma Fee Schedule and two hundred
seven percent (207%) of the Medicare Fee Schedule.
b. For reimbursement of medical services for Evaluation
and Management of injured employees as defined in the
Fee Schedule adopted by the Commission, the
reimbursement rate shall not be less than one hundred
fifty percent (150%) of the Medicare Fee Schedule.
c. Any entity providing durable medical equipment ,
prosthetics, orthotics or supplies shall be accredited
by a CMS-approved accreditation organization. If a
physician provides durable medical equipment,
prosthetics, orthotics, prescription drugs, or
supplies to a patient ancillary to the patient's
visit, reimbursement shall be no more than ten percent
(10%) above cost.
d. The Commission shall develop a reasonable stop -loss
provision of the Fee Schedule to provide for adequate
reimbursement for treatment for major burns, severe
head and neurological injur ies, multiple system
injuries, and other catastrophic injuries requiring
extended periods of intensive care. An employer or
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insurance carrier shall have the right to audit the
charges and question the reasonableness and necessity
of medical treatment contained in a bill for treatment
covered by the stop-loss provision.
4. The right to recover charges for every type of medical care
for injuries arising out of and in the course of covered employment
as defined in the Administrative Workers' Compensation Act shall lie
solely with the Commission. When a medical care provider has
brought a claim to the Commission to obtain payment for services, a
party who prevails in full on the claim shall be entitled to
reasonable attorney fees.
5. Nothing in this section shall preve nt an employer, insurance
carrier, group self-insurance association, or certified workplace
medical plan from contracting with a provider of medical care for a
reimbursement rate that is greater than or less than limits
established by the Fee Sc hedule.
6. A treating physician may not charge more than Four Hundred
Dollars ($400.00) per hour for preparation for or testimony at a
deposition or appearance before the Commission in connection with a
claim covered by the Administrative Workers' Compensation Act.
7. The Commission's review of medical and treatment charges
pursuant to this section shall be conducted pursuant to the Fee
Schedule in existence at the time the medical care or treatment was
provided. The judgment approving the medical and tr eatment charges
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pursuant to this section shall be enforceable by the Commission in
the same manner as provided in the Administrative Workers'
Compensation Act for the enforcement of other compensation payments.
8. Charges for prescription drugs dispensed by a pharma cy shall
be limited to ninety percent (90%) of the average wholesale price of
the prescription, plus a dispensing fee of Five Dollars ($5.00) per
prescription. "Average wholesale price" means the amount determined
from the latest publication de signated by the Commission.
Physicians shall prescribe and pharmacies shall dispense generic
equivalent drugs when available. If the National Drug Code, or
"NDC", for the drug product dispensed is for a repackaged drug, then
the maximum reimbursement shall be the l esser of the original
labeler's NDC and the lowest -cost therapeutic equivalent drug
product. Compounded medications shall be billed by the compounding
pharmacy at the ingredient level, with each ingredient identified
using the applicable NDC of the drug product, and the corresponding
quantity. Ingredients with no NDC area are not separately
reimbursable. Payment shall be based on a sum of the allowable fee
for each ingredient plus a dispensing fee of Five Dollars ($5.00)
per prescription.
9. When medical care includes prescription drugs dispensed by a
physician or other medical care provider and the NDC for the drug
product dispensed is for a repackaged drug, then the maximum
reimbursement shall be the lesser of the original labeler's NDC and
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the lowest-cost therapeutic equivalent drug product. Payment shall
be based upon a sum of the allowable fee for each ingredient plus a
dispensing fee of Five Dollars ($5.00) per prescription. Compounded
medications shall be billed by the compounding pharmacy.
10. Implantables are paid in addition to procedural
reimbursement paid for medical or surgical services. A
manufacturer's invoice for the actual cost to a physician, hospital
or other entity of an implantable device shall be adjusted by the
physician, hospital or other entity to reflect, at the time
implanted, all applicable discounts, rebates, considerations and
product replacement programs and shall be provided to the payer by
the physician or hospital as a condition of payment for the
implantable device. I f the physician, or an entity in which the
physician has a financial interest other than an ownership interest
of less than five percent (5%) in a publically traded company,
provides implantable devices, this relationship shall be disclosed
to patient, employer, insurance company, third -party commission,
certified workplace medical plan, case managers, and attorneys
representing claimant and defendant. If the physician, or an entity
in which the physician has a financial interest other than an
ownership interest of less than five percent (5%) in a publicly
traded company, buys and resells implantable devices to a hospital
or another physician, the markup shall be limited to ten percent
(10%) above cost.
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11. Payment for medical care as required b y the Administrative
Workers' Compensation Act shall be due within forty -five (45) days
of the receipt by the employer or insurance carrier of a complete
and accurate invoice, unless the employer or insurance carrier has a
good-faith reason to request additional info rmation about such
invoice. Thereafter, the Commission may assess a penalty up to
twenty-five percent (25%) for any amount due under the Fee Schedule
that remains unpaid on the finding by the Commission that no good -
faith reason existed for the delay in payment. If the Commission
finds a pattern of an employer or insurance carrier willfully and
knowingly delaying payments for medical care, the Commission may
assess a civil penalty of not more than Five Thousand Dollars
($5,000.00) per occurrence.
12. If an employee fails to appear for a scheduled appointment
with a physician or chiropractor, the employer or insurance company
shall pay to the physician or chiropractor a reasonable charge, to
be determined by the Commission, for the missed appoin tment. In the
absence of a good-faith reason for missing the appointment, the
Commission shall order the employee to reimburse the employer or
insurance company for the charge.
13. Physicians or chiropractors providing treatment under the
Administrative Workers' Co mpensation Act shall disclose under
penalty of perjury to the Commission, on a form prescribed by the
Commission, any ownership or interest in any health care facility,
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business, or diagnostic center that is not the physician's or
chiropractor's primary place of business. The disclosure shall
include any employee leasing arrangement between the physician or
chiropractor and any health care facility that is not the
physician's or chiropractor's primary place of business. A
physician's or chiropractor's fai lure to disclose as required by
this section shall be grounds for the Commission to disqualify the
physician or chiropractor from providing treatment under the
Administrative Workers' Compensation Act.
14. a. Beginning on May 28, 2019, the Commi ssion shall
conduct an evaluation of the Fee Schedule, which shall
include an update of the list of Current Procedural
Terminology (CPT) codes, a line item adjustment or
renewal of all rates, and amendment as needed to the
rules applicable to the Fee Schedule.
b. The Commission shall contract with an external
consultant with knowledge of workers' compensation fee
schedules to review regional and nationwide
comparisons of Oklahoma's Fee Schedule rates and date
and market for medical services. The consultant shall
receive written and oral comment from employers,
workers' compensation medical service and insurance
providers, self-insureds, group self -insurance
associations of this state and the public. The
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consultant shall submit a report of its findings and a
proposed amended Fee Schedule to the Commission.
c. The Commission shall adopt the proposed amended Fee
Schedule in whole or in part and make any additional
updates or adjustments. The Commission shall submit a
proposed updated and adjusted Fee Schedule to the
President Pro Tempore of the Senate, the Speaker of
the House of Representatives and the Governor. The
proposed Fee Schedule shall become effective on July 1
following the legislative session, if approved by
Joint Resolution of the Legislature during the ses sion
in which a proposed Fee Schedule is submitted.
d. Beginning on May 28, 2019, an external evaluation
shall be conducted and a proposed amended Fee Schedule
shall be submitted to the Legislature for approval
during the 2020 legislative sessio n. Thereafter, an
external evaluation shall be conducted and a proposed
amended Fee Schedule shall be submitted to the
Legislature for approval every two (2) years.
I. Formulary. The Commission by rule shall adopt a closed
formulary. Rules adopted by the Commissi on shall allow an appeals
process for claims in which a treating doctor determines and
documents that a drug not included in the formulary is necessary to
treat an injured employee's compensable injury. The Commission by
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rule shall require the use of generic pharmaceutical medications and
clinically appropriate over -the-counter alternatives to prescription
medications unless otherwise specified by the prescribing doctor, in
accordance with applicable state law.
SECTION 6. This act shall be come effective July 1, 2024.
SECTION 7. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
COMMITTEE REPORT BY: COMMITTEE ON RETIREMENT AND INSURANCE
April 9, 2024 - DO PASS