§431:10C-308.5  Limitation on charges. 
(a)  As used in this article, the term "workers' compensation supplemental
medical fee schedule" means the schedule adopted and as may be amended by
the director of labor and industrial relations for workers' compensation cases
under chapter 386, establishing fees and frequency of treatment guidelines. 
References in the workers' compensation supplemental medical fee schedule to
"the employer", "the director", and "the industrial
injury", shall be respectively construed as references to "the
insurer", "the commissioner", and "the injury covered by
personal injury protection benefits" for purposes of this article.



(b)  The charges and frequency of treatment for
services specified in section 431:10C-103.5(a), except for emergency services
provided within seventy-two hours following a motor vehicle accident resulting
in injury, shall not exceed the charges and frequency of treatment permissible
under the workers' compensation supplemental medical fee schedule.  Charges for
independent medical examinations, including record reviews, physical
examinations, history taking, and reports, to be conducted by a licensed Hawaii
provider unless the insured consents to an out-of-state provider, shall not
exceed the charges permissible under the appropriate codes in the workers'
compensation supplemental medical fee schedule.  The workers' compensation
supplemental medical fee schedule shall not apply to independent medical
examinations conducted by out-of-state providers if the charges for the
examination are reasonable.  The independent medical examiner shall be selected
by mutual agreement between the insurer and claimant; provided that if no
agreement is reached, the selection may be submitted to the commissioner,
arbitration or circuit court.  The independent medical examiner shall be of the
same specialty as the provider whose treatment is being reviewed, unless
otherwise agreed by the insurer and claimant.  All records and charges relating
to an independent medical examination shall be made available to the claimant
upon request.  The commissioner may adopt administrative rules relating to fees
or frequency of treatment for injuries covered by personal injury protection
benefits.  If adopted, these administrative rules shall prevail to the extent
that they are inconsistent with the workers' compensation supplemental medical
fee schedule.



(c)  Charges for services for which no fee is
set by the workers' compensation supplemental medical fee schedule or other
administrative rules adopted by the commissioner shall be limited to eighty per
cent of the provider's usual and customary charges for these services.



(d)  Services for which no frequency of
treatment guidelines are set forth in the workers' compensation supplemental
medical fee schedule or other administrative rules adopted by the commissioner
shall be deemed appropriate and reasonable expenses necessarily incurred if so
determined by a provider.



(e)  In the event of a dispute between the
provider and the insurer over the amount of a charge or the correct fee or
procedure code to be used under the workers' compensation supplemental medical
fee schedule, the insurer shall:



(1)  Pay all undisputed charges within thirty days
after the insurer has received reasonable proof of the fact and amount of
benefits accrued and demand for payment thereof; and



(2)  Negotiate in good faith with the provider on the
disputed charges for a period up to sixty days after the insurer has received
reasonable proof of the fact and amount of benefits accrued and demand for
payment thereof.



If the provider and the insurer are unable to
resolve the dispute after a period of sixty days pursuant to paragraph (2), the
provider, insurer, or claimant may submit the dispute to the commissioner,
arbitration, or court of competent jurisdiction.  The parties shall include
documentation of the efforts of the insurer and the provider to reach a
negotiated resolution of the dispute.  This section shall not be subject to the
requirements of section 431:10C-304(3) with respect to all disputes about the
amount of a charge or the correct fee and procedure code to be used under the
workers' compensation supplemental medical fee schedule.  An insurer who
disputes the amount of a charge or the correct fee or procedure code under this
section shall not be deemed to have denied a claim for benefits under section
431:10C-304(3); provided that the insurer shall pay what the insurer believes
is the amount owed and shall furnish a written explanation of any adjustments
to the provider and to the claimant at no charge, if requested.  The provider,
claimant, or insurer may submit any dispute involving the amount of a charge or
the correct fee or procedure code to the commissioner, to arbitration, or to a
court of competent jurisdiction.



(f)  The provider of services described in
section 431:10C-103.5(a) shall not bill the insured directly for those services
but shall bill the insurer for a determination of the amount payable.  The
provider shall not bill or otherwise attempt to collect from the insured the
difference between the provider's full charge and the amount paid by the
insurer.



(g)  A health care provider shall be
compensated by the insurer for preparing reports documenting the need for
treatments which exceed the workers' compensation supplemental medical fee
schedule in accordance with the fee schedule for special reports.  The health
care provider may assess the cost of preparing a report to the insurer at no
more than $20 per page up to a maximum of $75 for each report. [L 1992, c 123,
pt of §1; am L 1997, c 251, §45; am L 1998, c 275, §§26, 27; am L 2000, c 138,
§2; am L 2001, c 55, §20; am L 2006, c 198, §2]



 



Case Notes



 



  Fee schedule referenced in this section was intended to apply
to medical services rendered as a result of motor vehicle accidents and paid by
a no-fault insurer.  73 F. Supp. 2d 1189.



  Independent medical examination (IME) provisions in
subsection (b) do not apply to a record review performed in isolation, without
other accompanying procedures necessary to complete an IME, particularly an
in-person examination.  402 F. Supp. 2d 1157.



  This section (1993), which referred to the worker
compensation treatment schedules adopted by the director of labor and
industrial relations in the Hawaii administrative rules (HAR) as the schedules
governing payments to no-fault benefit providers under motor vehicle insurance
policies, must be construed as having generally incorporated the worker
compensation fee schedules as they may have been adopted and amended from time
to time; thus, after the director repealed HAR chapter 12-13 and adopted HAR
chapter 12-15 in 1996, the latter became the fee schedule governing payments
under this section.  105 H. 362, 98 P.3d 233.



  An actual examination, physical or otherwise, is an essential
component of an "independent medical examination" within the meaning
of subsection (b); thus, where physician retained by insurer did not actually
examine insured but instead limited the evaluation to a review of insured's
records, physician did not perform an independent medical examination within
the meaning of subsection (b) and insured did not violate subsection (b) when
it declined to seek insured's consent in selecting physician to review
insured's records.  119 H. 109, 194 P.3d 1071.



  Insurer did not violate this section by selecting physician
to review insured's record without insured's approval where, in the context of
subsection (b), a "record reviewer" is not an independent medical
examiner.  117 H. 465 (App.), 184 P.3d 780.