Senate Bill 135 Exceptions to Georgia 400 Week Limit and the Impact on WCMSAs

Pursuant to O.C.G.A Sec. 34-9-200, payment of medical expenses in workers’ compensation claims with dates of injury on or after July 1, 2013, were capped at 400 weeks for claims that were no-catastrophic in nature. Senate Bill 135, which will become effective on July 1, 2019, now eliminates the 400-week cap for certain medical items and services that were furnished within 400 weeks of the date of injury and prescribed by an authorized physician.

Specifically, the adopted bill includes the following pertinent language:

For injuries arising on or after July 1, 2013, that are not designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the maximum period of 400 weeks referenced in paragraph (2) of this subsection shall not be applicable to the following care, treatment, services, and items when prescribed by an authorized physician:

Maintenance, repair, revision, replacement, or removal of any prosthetic device, provided that the prosthetic device was originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment; (ii) Maintenance, repair, revision, replacement, or removal of a spinal cord stimulator or intrathecal pump device, provided that such items were originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment; and (iii) Maintenance, repair, revision, replacement, or removal of durable medical equipment, orthotics, corrective eyeglasses, or hearing aids, provided that such items were originally furnished within 400 weeks of the date of injury or occupational disease arising out of and in the course of employment…

Durable Medical Equipment and Prosthetic Devices are also defined in the bill as follows:

(i) Durable medical equipment’ means an apparatus that provides therapeutic benefits, is primarily and customarily used to serve a medical purpose, and is reusable and appropriate for use in the home. Such term includes, but shall not be limited to, manual and electric wheelchairs, beds and mattresses, traction equipment, canes, crutches, walkers, oxygen, and nebulizers.

(ii) ‘Prosthetic device’ means an artificial device that has, in whole or in part, replaced a joint lost or damaged or other body part lost or damaged as a result of an injury or occupational disease arising out of and in the course of employment.

Pursuant to Section 9.4.5 of the Workers’ Compensation Medicare Set Aside Reference Guide, CMS will honor state-specific statutes provided the statute is included with submission and there is a finding from a court or competent jurisdiction or appropriate state entity evidencing that the case does not meet  “the state’s list of exemptions to the legislative mandate.”  With the passage of SB 135, the parties will now need to consider if prosthetic devices, spinal cord stimulators, durable medical equipment, orthotics, corrective eyeglasses, or hearing aids were “furnished” to the claimant within 400 weeks of the date of injury and prescribed by an authorized physician.  If so, CMS may require an allocation for the life expectancy of the claim.  CMS has not officially commented on these changes and NuQuest will be monitoring the same.

In the interim, the parties should also consider whether the CMS voluntary review process or non-submission of a WCMSA is the best option for resolution of these types of claims.