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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 11/09/2018
The WV Workers’ Compensation Fee Schedule and Provider Agreements

In an effort to contain medical charges for workers' compensation claims, West Virginia (WV) imposes a fee schedule for medical service providers. The WV workers' compensation fee schedule for medical reimbursements specifies the maximum amount that can be charged by a provider for a specific service.

The attorneys at Jenkins Fenstermaker, PLLC recently received a request for advice regarding providers who ask employers or claim administrators to sign medical provider fee agreements prior to assuming care of a workers' compensation claimant. In the case we reviewed, the provider asked a claim administrator to agree to reimburse medical charges for workers' compensation claims at a significant percentage above the WV workers' compensation medical fee schedule.

This request is problematic and illustrates the need for insurance companies and employers to ensure fees for work-related injuries in WV are paid appropriately-and to seek or retain legal counsel on matters related to workers' compensation to avoid potential problems.

Is the WV Workers' Compensation Fee Schedule Negotiable?

According to the WV Offices of the Insurance Commissioner "[t]he fee schedule serves as a 'maximum allowable' and is applied to all workers' compensation medical care except for care provided under an OIC approved Managed Health Care Plan (MHCP). Approved MHCP's are exempt from the maximum fee schedule."

In the case that we reviewed, the provider was seeking the agreement, including the increase over the fee schedule, outside of a Managed Health Care Plan.

State Law and the WV Workers' Compensation Fee Schedule

West Virginia Code § 23-4-3(b)(1) provides:

No employer shall enter into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service or to give medical or surgical attention to any employee for injury compensable within the purview of this chapter and no employer shall permit or require any employee to contribute, directly or indirectly, to any fund for the payment of such medical, surgical, dental or hospital service within such hospital for the compensable injury. Any employer violating this subsection is liable in damages to the employer's employees as provided in [West Virginia Code § 23-2-8], and any employer or hospital or agent or employee thereof violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by imprisonment not exceeding one year, or both.

Employers, insurers, and claim administrators who enter into any agreement to pay more than allowed by the workers' compensation fee schedule would appear to be in violation of the above statute.

Payment of Fees for Work-Related Injuries in WV under MHCPs

Even if you are offering a MHCP and are exempt from the fee schedule, the reimbursement rate of medical charges for workers' compensation claims would be a term of the plan itself, and it is likely inadvisable to enter into medical provider fee agreements. Any agreement that negotiates fees for work-related injuries in WV in excess of the allowances of the insurance plan or regulating body could potentially be construed as a violation of the above statute.

Additional Possibilities in Medical Provider Fee Agreements

Do other scenarios exist that potentially negate the WV workers' compensation medical fee schedule?

To the extent that an agreement may be entered into between the insurer and the provider, rather than the employer and the provider, the insurer could still be deemed the employer's agent. If so, the statute basically makes no distinction and any medical provider fee agreements could be a violation of the law.

West Virginia Code § 23-4-3 applies to hospitals, to the physicians, officers, agents, or employees of hospitals, and to dental or hospital services. Technically, an employer or insurance company could receive a request from a provider charging fees for work-related injuries in WV that does not fall under those classifications. However, there is nothing that requires an employer, insurer, or claim administrator to agree to any contract for treatment of a claimant, particularly one which requires payment of medical charges for workers' compensation claims at a rate above the WV workers' compensation medical fee schedule, regardless of how the provider may be classified.

Legal Issues Related to the WV Workers' Compensation Fee Schedule

If you have questions about medical charges for workers' compensation claims, medical provider fee agreements, the WV workers' compensation fee schedule, MHCPs, or any other workers' compensation-related issue, contact Steven K. Wellman at Jenkins Fenstermaker, PLLC using his online contact form or by calling (866) 617-4736.

THIS IS AN ADVERTISEMENT. It is presented for promotional, informational, and/or educational purposes and should not be relied upon as legal advice. Jenkins Fenstermaker, PLLC, 328 8th Street, Huntington, WV 25701-2225. Phone: (866) 617-4736 (toll-free).