Georgia Senate Bill 135 Adds Exceptions to the 400 Week Limit for Future Medicals – Overview and WCMSA Impact

Georgia Senate Bill 135 (SB 135) was signed into law on May 7, 2019 and makes notable changes to Chapter 9 of Title 34 of the Official Code of Georgia Annotated related to workers’ compensation. These new changes will likely impact workers’ compensation Medicare set-aside (WCMSA) allocations in applicable situations. 

By way of background, prior to the passage of SB 135, O.C.G.A. § 34-9-200 placed a maximum cap on medical benefits for non-catastrophic injuries occurring on or after July 1, 2013, to a period of 400 weeks from the date of injury. SB 135 now adds treatment exceptions to this cap targeting long term service items that typically require maintenance or revisions over time. 

How SB 135 changes Georgia’s 400 Week Cap

Per the new changes, the maximum period of 400 weeks will no longer apply to the maintenance, repair, revision, or removal of a prosthetic device, a spinal cord stimulator, an intrathecal pump, durable medical equipment, orthotics, corrective eyeglasses, or hearing aids if such items were originally given within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment.

The available text of the adopted bill does not specify an effective date. As a result, SB 135 will become effective on July 1, 2019, per Georgia’s customary statutory implementation rules.[1]

Potential WCMSA Impact

In July 2017, the Centers for Medicare and Medicaid Services (CMS) revised the WCMSA Reference Guide (Version 2.6, July 2017), to indicate that CMS 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.”  

Since then, CMS has consistently accepted arguments using O.C.G.A. § 34-9-200 to limit the period of treatment of applicable claims in WCMSAs to 400 weeks. This “GA 400 weeks” argument was a very specific exception to CMS’ general standard of allocating future treatment services and medications for life expectancy and became a tremendous tool to lower medical costs for WCMSAs involving Georgia claims. 

For claim payers, the new amendments to O.C.G.A. § 34-9-200 mean that several high costs and long-term service items will remain the responsibility of the carrier after 400 weeks if they were originally given within the responsible period. Likewise, we expect CMS to amend their approach of applying O.C.G.A. § 34-9-200 to WCMSAs and the treatment for prosthetic devices, spinal cord stimulators, intrathecal pumps, durable medical equipment, orthotics, corrective eyeglasses, and hearing aids will likely be allocated in WCMSAs for life expectancy moving forward. 

To date, CMS has not commented on the law changes. At a minimum we expect CMS to simply abide by the new law, but what remains to be seen is whether CMS will somehow try to leverage the changes brought by SB 135 to eliminate the application O.C.G.A. § 34-9-200 to WCMSAs altogether. If CMS does this, it could be argued that CMS’ position is too broad and that the 400 week limitation should still apply in accordance with Georgia law. CMS’ handling of these changes is something we will monitor closely. 

Going forward 

Parties with qualifying claims that may be impacted by SB 135 may want to consider whether it is beneficial to try and obtain approval of a WCMSA arguing 400 weeks, without exceptions, prior to SB 135’s effective date of July 1, 2019. To the extent that CMS rejects honoring such arguments prior to this date, the parties should be able to argue that approval is applicable on grounds that the current version of O.C.G.A. § 34-9-200 remains operative.

By Sidney Wong

Courtesy of ISO Claims Partners Blog

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