§431:10C-308.5  Limitation on charges. (a)  As used in this article, the term "workers' compensation supplementalmedical fee schedule" means the schedule adopted and as may be amended bythe director of labor and industrial relations for workers' compensation casesunder 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 industrialinjury", shall be respectively construed as references to "theinsurer", "the commissioner", and "the injury covered bypersonal injury protection benefits" for purposes of this article.

(b)  The charges and frequency of treatment forservices specified in section 431:10C-103.5(a), except for emergency servicesprovided within seventy-two hours following a motor vehicle accident resultingin injury, shall not exceed the charges and frequency of treatment permissibleunder the workers' compensation supplemental medical fee schedule.  Charges forindependent medical examinations, including record reviews, physicalexaminations, history taking, and reports, to be conducted by a licensed Hawaiiprovider unless the insured consents to an out-of-state provider, shall notexceed the charges permissible under the appropriate codes in the workers'compensation supplemental medical fee schedule.  The workers' compensationsupplemental medical fee schedule shall not apply to independent medicalexaminations conducted by out-of-state providers if the charges for theexamination are reasonable.  The independent medical examiner shall be selectedby mutual agreement between the insurer and claimant; provided that if noagreement is reached, the selection may be submitted to the commissioner,arbitration or circuit court.  The independent medical examiner shall be of thesame specialty as the provider whose treatment is being reviewed, unlessotherwise agreed by the insurer and claimant.  All records and charges relatingto an independent medical examination shall be made available to the claimantupon request.  The commissioner may adopt administrative rules relating to feesor frequency of treatment for injuries covered by personal injury protectionbenefits.  If adopted, these administrative rules shall prevail to the extentthat they are inconsistent with the workers' compensation supplemental medicalfee schedule.

(c)  Charges for services for which no fee isset by the workers' compensation supplemental medical fee schedule or otheradministrative rules adopted by the commissioner shall be limited to eighty percent of the provider's usual and customary charges for these services.

(d)  Services for which no frequency oftreatment guidelines are set forth in the workers' compensation supplementalmedical fee schedule or other administrative rules adopted by the commissionershall be deemed appropriate and reasonable expenses necessarily incurred if sodetermined by a provider.

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

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

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

If the provider and the insurer are unable toresolve the dispute after a period of sixty days pursuant to paragraph (2), theprovider, insurer, or claimant may submit the dispute to the commissioner,arbitration, or court of competent jurisdiction.  The parties shall includedocumentation of the efforts of the insurer and the provider to reach anegotiated resolution of the dispute.  This section shall not be subject to therequirements of section 431:10C-304(3) with respect to all disputes about theamount of a charge or the correct fee and procedure code to be used under theworkers' compensation supplemental medical fee schedule.  An insurer whodisputes the amount of a charge or the correct fee or procedure code under thissection shall not be deemed to have denied a claim for benefits under section431:10C-304(3); provided that the insurer shall pay what the insurer believesis the amount owed and shall furnish a written explanation of any adjustmentsto 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 orthe correct fee or procedure code to the commissioner, to arbitration, or to acourt of competent jurisdiction.

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

(g)  A health care provider shall becompensated by the insurer for preparing reports documenting the need fortreatments which exceed the workers' compensation supplemental medical feeschedule in accordance with the fee schedule for special reports.  The healthcare provider may assess the cost of preparing a report to the insurer at nomore 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 applyto medical services rendered as a result of motor vehicle accidents and paid bya no-fault insurer.  73 F. Supp. 2d 1189.

  Independent medical examination (IME) provisions insubsection (b) do not apply to a record review performed in isolation, withoutother accompanying procedures necessary to complete an IME, particularly anin-person examination.  402 F. Supp. 2d 1157.

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

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

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