The initial meeting of the
Regulatory Advisory Committee (RAC) was held on June 19, 2018, beginning at
1:00 p.m., in the Oscar Morgan Conference Room at the Department of Workers’
Claims, 657 Chamberlin Avenue, Frankfort, Kentucky.
All committee members were
present in-person. From the Kentucky Department of Workers’ Claims (DWC)
were Douglas W. Gott, Chief Administrative Law Judge; John B. Coleman,
Administrative Law Judge; Chris Davis, Administrative Law Judge; and B. Dale
Hamblin, Jr., Esq., Staff Attorney Manager/Assistant General Counsel.
Other members present were Peter Naake, Esq.; Kenneth J. Dietz, Esq.; Scott M.
Miller, Esq.; and Timothy Feld, Esq.
Also in attendance was Robert
Swisher, Commissioner of the Kentucky Department of Workers’ Claims, who
welcomed everyone to the meeting. The Commissioner introduced himself and
noted that the meeting is held in accordance with KRS 61.823(4)(a), the Open
Meetings statute, and that notice of the meeting was published as required.
He thanked all of the members for their willingness to participate and give of
The members of the committee
introduced themselves. Douglas Gott is currently Chief Administrative Law
Judge at the DWC, and has been an ALJ for 10 years. He works in Bowling
Green and in Frankfort. John Coleman is an ALJ from Pikeville.
Chris Davis is from Louisville and has been an ALJ for 12 years. Dale
Hamblin is Assistant General Counsel and has worked for the DWC since
2006. Peter Naake is an attorney from Louisville who represents
plaintiffs in workers’ compensation claims. Kenneth Dietz has been an
attorney for 30 years and practices defense law in workers’ claims cases.
Scott Miller has been an attorney for 41 years and represents plaintiffs.
Timothy Feld has been an attorney for 15 years, previously practiced defense
law and is currently in-house counsel for KEMI.
Secretary David Dickerson
addressed the committee and thanked them for giving of their time and talents
to helping the citizens of Kentucky.
introduced Deputy Commissioner Robert Milligan who is also involved with the
Medical Advisory Committee.
Commissioner Swisher stated
that the purpose of the RAC is to meet the challenge of developing regulations
consistent with the statutory changes set out in House Bill 2. There are
three main issues to be addressed by this committee. One of the changes
brought about in House Bill 2 consists of a change in KRS 342.020 which
includes termination of medical benefits for a claimant after 780 weeks unless
application for an extension of benefits is made. This committee must
determine the process of application, and the process of substantive
adjudication of an application. Commissioner Swisher asked the members of
the committee to look at this process reasonably and logically in order to give
their best effort to meeting the needs of the people of the Commonwealth.
The second issue is to
determine regulations to implement the pharmaceutical formulary that will be
developed by the Medical Advisory Committee. The regulations establishing
and implementing the formulary must be filed by December 31, 2018.
Processes must be developed to address the steps for prior approval when
necessary, medical review and resolution of disputes arising from a denial of
medical benefits to a claimant.
The third issue is to
determine how the medical treatment guidelines, also to be developed by the
Medical Advisory Committee, will be implemented for all participants.
Commissioner Swisher noted
that the Medical Advisory Committee is a parallel group consisting of
healthcare providers who will determine the substance of the pharmaceutical
formulary and treatment guidelines. This group held its first meeting on
May 29, 2018, to establish the goals to reach a consensus and make
recommendations on how to proceed. The RAC will take the recommendations
adopted by the MAC to develop a system to work in real time. Commissioner
Swisher indicated that developing the best procedural framework possible will
be needed to meet the mandates of House Bill 2. Although the committee
will present its recommendations, the final decision will be the
Commissioner’s, and he is relying on their guidance and counsel to make the
proper choices. He told the committee that 1.9 million people go to work
each day in Kentucky, and 300,000 employers open their doors for business, so
it is important that this committee “get it right”. He then turned the
meeting over to Judge Gott.
Judge Gott emphasized that all
voices on the committee are equal. Each committee member had available to
him the email addresses of all members, a list of the issues to be addressed,
and the deadlines set out for preliminary submission to LRC.
Judge Gott noted that KRS
342.020 will require that a claimant make application for extension of medical
benefits beyond 780 weeks, and without action taken by a claimant, medical
benefits will terminate at the end of the 780-week period. House Bill 2
requires that the Commissioner notify a claimant within 180 days before the
date benefits will expire. A claimant may file for extension of benefits
within 75 days of the date of expiration, and must show that the extension of
benefits is reasonable and necessary. An administrative law judge will
make a determination on the application.
KRS 342.270 sets out that
within 120 days the Commissioner shall establish regulations on filing
extensions for medical benefits. House Bill 2 goes into effect July 14,
2018, making the deadline for establishing the regulations November 12, 2018.
Judge Gott emphasized that this is not a long time for the committee to address
the issues. He set out the three issues to be addressed, one of which is
DWC notification to a claimant and the anticipated problems of stale addresses.
The manner of filing must also be established, i.e., whether a claimant may
file via paper or through the LMS system, and in what form that filing should
be prepared. The procedural requirements of advancing an application must
be set out with specifics by this committee including issues of service on
opposing parties, response times, discovery, scheduling of conferences and/or
hearings, and docketing of claims. The committee will also address
whether termination of benefits will be stayed pending adjudication of an application
and the issuance of orders and opinions in those claims.
KRS 342.035(8)(b) addresses
implementation of a pharmaceutical formulary. Judge Gott noted that a
“closed” formulary is the most common type adopted by other states which
consists of placing a status on each drug as being “Y”, authorized, or “N” not
authorized or requiring pre-authorization before dispensing. He noted
that all medications are subject to utilization review and medical dispute at
any time regardless of whether or not an extension of benefits has been
granted. Judge Gott also noted that medical dispute regulations are
currently in place at 803 KAR 25:012, and may or may not need to be amended
when the recommendations are presented.
Dispute over a drug from the
formulary does not necessarily mean that it cannot be prescribed, and this
committee will propose a process for determining whether a prescription will or
will not be filled. Common issues to be addressed include whether a
“first fill” mechanism will be placed which automatically allows a claimant to
obtain a medication until it can be established whether or not it is reasonable
and necessary. Determining the status of “legacy claims”, or claims
involving injuries prior to the effective date of the formulary must also be
addressed. Judge Gott anticipated a grace period for transitioning these
legacy claims but the time limit is to be determined by the committee.
Judge Gott noted that these
recommendations must be adopted by December 31, 2018, with the implementation date
to be determined by the Commissioner. He also noted there are
stakeholders who have an interest and will be seeking education and training,
and although this is not a task to be taken on by this committee, he expressed
the hope that this committee will be a leader in making some of those
Judge Gott also presented each
committee member with a copy of regulations adopted by the states of Tennessee
and Texas, both of which have previously done the work and can be used as
models for this committee. He noted that this committee is “project
specific” in that it is to address the three goals set before it. He
noted that due to the time constraints, committee members will need to do
independent research to bring back to the group.
A short discussion regarding
frequency of meetings and establishing groups followed. Judge Gott
assigned Judge Coleman, Mr. Feld and Mr. Miller to a subgroup addressing the
issues of the application process for a continuation of medical benefits beyond
780 weeks. This subgroup will also address drug formulary issues with
regard to the process of dispute resolution.
Judge Davis, Mr. Dietz and Mr.
Naake will form a subgroup to address the processes of discovery and scheduling
for continuation of medical benefits beyond 780 weeks. Drug formulary
issues of first fill and legacy claims will be address by this subgroup as
Mr. Hamblin and Judge Gott
will discuss DWC notification issues. Judge Gott also indicated he will
work with both subgroups while Mr. Hamblin will be charged with getting the
recommendations in the proper format of regulations for submissions to LRC.
encouraged the committee to look closely at the wording in House Bill 2 to
ensure that their recommendations meet the mandates set out therein. He
noted that the committee needs to comply with the intent of House Bill 2 as it
currently exists. He told the committee that the pharmaceutical formulary
is another aspect of the treatment guidelines to be developed later, but that
the processes are similar.
Judge Gott requested that the
committee reconvene in three weeks. Commissioner Swisher noted that in
accordance with the Open Meeting statute, a member of the committee must be
present in person or via video conference, and that DWC has the capability of
setting up video conferencing if needed. Participation via telephone
call-in does not constitute a presence at a meeting with respect to whether or
not a quorum is established.
Judge Gott indicated that no
public comments would be accepted at this meeting but will be encouraged at
future meetings. Notice of the next meeting will be sent when the dates
and times are confirmed.
Mr. Miller asked if the
committee members are able to discuss the issues with people outside of the
committee, and Commissioner Swisher was of the opinion that they could.
Commissioner Swisher stated he is unaware of any prohibition against talking
with people outside of the committee.
Mr. Feld asked what Judge Gott
expected from the subgroups at the next meeting. Judge Gott indicated he
would like to hear an oral report, and the subgroups were welcome to prepare
written updates if they felt such were necessary. He left the substance
and formatting of the reporting to the individual groups.
Commissioner Swisher told the
committee that presentations from outside groups may be scheduled, if
desired. He noted that the state of Montana is currently working on their
own processes for implementation of guidelines already adopted, and that many
other states have recently adopted guidelines or are currently in the process
of developing guidelines. Much of this information is available on-line,
and he encouraged members of the committee to look them up.
Judge Coleman moved for adjournment,
seconded by Mr. Hamblin. The meeting was adjourned at 2:10 p.m.
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