Title of Regulation: 16VAC30-50. Rules of the Virginia Workers' Compensation Commission (amending 16VAC30-50-150).

Statutory Authority: § 65.2-201 of the Code of Virginia; Chapter 456 of the 2015 Acts of Assembly.

Effective Dates: January 11, 2016, through July 11, 2017.

Agency Contact: Jim Szablewicz, Chief Deputy Commissioner, Virginia Workers' Compensation Commission, 1000 DMV Drive, Richmond, VA 23030, telephone (804) 367-8664, or email james.szablewicz@workcomp.virginia.gov.

Preamble:

Section 65.2-605 of the Code of Virginia was amended by Chapter 456 of the 2015 Acts of Assembly to include a new subsection B, which requires the Virginia Workers' Compensation Commission to "…determine the number and geographic area of communities across the Commonwealth." Enactment clause 2 of Chapter 456 requires the commission to promulgate regulations to implement the provisions of Chapter 456 to be effective within 280 days of its enactment and to provide an opportunity for public comment on the regulations prior to adoption.

Section 65.2-605 provides in pertinent part that "The pecuniary liability of the employer for medical, surgical, and hospital service herein required when ordered by the Commission shall be limited to such charges as prevail in the same community for similar treatment when such treatment is paid for by the injured person…" This is generally referred to as the "prevailing community rate" standard. 16VAC30-50-150 (Rule 14) exists to divide the Commonwealth into defined communities for the purpose of determining the prevailing community rate. Rule 14 divides the Commonwealth into 15 defined communities based on planning district commission districts. However, because of their number, in many cases there is insufficient data available within the current communities to determine the prevailing community rate for particular medical services within that community. The proposed amendment reduces the number of defined communities to five, based on health planning districts and geographic contiguity, thereby expanding the data available within each community for determining the prevailing community rate for medical services rendered to injured workers within that community.

The proposed amendment reduces the number of communities for the purposes of determining the liability of employers and insurers for the cost of medical services rendered to injured workers pursuant to § 65.2-605 of the Code of Virginia from 15 communities based on planning district commission districts to five communities based on health planning districts and geographic contiguity.

The change is needed to (i) reduce the amount of litigation over prevailing community rates in specific workers' compensation cases, which litigation has been increasing over the past several years; (ii) provide sufficient data to determine the prevailing community rate in those cases that must be litigated; and (iii) bring greater certainty and clarity to the determination of prevailing community rates for medical services rendered to injured workers.

16VAC30-50-150. Rule 14. Definition of community.

For the purpose of § 65.2-605 of the Code of Virginia, the word "community" shall mean one or more planning districts as set forth below. groups of three-digit Virginia zip codes as follows:

Whenever an employee receives treatment outside of the Commonwealth, the commission will determine the appropriate community in the state or territory where the treatment is rendered upon application of either the employee, employer (or its representative), or medical provider.

When the commission deems appropriate, it may consider additional data to determine the prevailing community rate.

Pursuant to subsection G of § 65.2-605.1 of the Code of the Virginia, the community applicable to services rendered by a health care provider outside of the Commonwealth of Virginia shall be deemed to be that associated with the principal place of business of the employer if located in the Commonwealth of Virginia, or if no such location exists, then that associated with the location where the commission hearing regarding a dispute involving those services is conducted.

The commission may consider additional data to determine the prevailing community rate when appropriate.