Employees who are injured during the course of employment, or who suffer from work-related mental or emotional disabilities, as well as occupational diseases, are eligible for workers' compensation benefits in Massachusetts. These benefits include medical and hospital services, medically necessary equipment and prescribed drugs, weekly compensation for lost income during the period the employee cannot work, and vocational and rehabilitation services.
The following three state agencies and offices in Massachusetts have key roles in the administration and delivery of services under workers' compensation:
- Department of Industrial Accidents (DIA) under the Executive Office of Labor and Workforce Development (EOLWD)
- Division of Insurance (DOI) under the Office of Consumer Affairs and Business Regulation (OCABR)
- Executive Office of Health and Human Services (EOHHS)
The Massachusetts Workers' Compensation Advisory Council (WCAC) is mandated to monitor, recommend, give testimony, and report on all aspects of the workers' compensation system. The WCAC issues a yearly report that evaluates operations and provides independent analysis of the Massachusetts Workers’ Compensation system.
The Executive Office of Health and Human Services (EOHHS) has statutory authority under M.G.L. c. 152, s. 13 and c.118E to establish rates of payment for hospitals and health care providers for services covered by insurers and other purchasers under M.G.L. c. 152, the Workers’ Compensation Act.
1. Are insurers and other purchasers required to use these established rates?
No. Under M.G.L. c. 152, s. 13, the insurer, the employer, and the health care service provider are permitted to agree on different rates.
2. What is the role of EOHHS regarding workers’ compensation?
EOHHS sets rates of payment for hospitals, physicians, and other health care providers. EOHHS does not oversee medical necessity or determine the clinical appropriateness of procedures and services rendered. These program policies are under the jurisdiction of DIA, located at One Congress Street, Suite 100, Boston, Massachusetts 02114; Phone: 617-727-4900.
3. What regulations govern payment for health care services under workers’ compensation?
- 114.1 CMR 41.00: Rates of Payment for Services Provided to Industrial Accident Patients by Hospitals. In this regulation you will find the rules and methodologies for paying Massachusetts hospitals.
- 114.3 CMR 40.00: Rates for Services under M.G.L. c. 152, Workers’ Compensation Act. This regulation is referred to as the “fee schedule” and contains 12 separate sections that list rates used to pay for health care services delivered by ambulatory provider types, such as physicians and physical therapists.
4. How are hospital payment levels determined?
EOHHS annually analyzes hospital payment details and publishes a Payment on Account Factor (PAF) for each facility. The PAF represents the percentage of a facility’s full price that a workers’ compensation payer is obliged to pay if another rate hasn’t already been established. For a list of PAFs for acute care and non-acute care hospitals, please click on the following link: Hospital PAFs.
Payments for restorative services provided by the facilities listed in the following link are made under 111 CMR 41.00 rather than 114.3 CMR 40.00: Hospital owned and/or operated sites of restorative services established prior to July 1, 1993
5. How do I pay for services that are not contained in the workers’ compensation fee schedule and for prescription pharmacy rates? How can I obtain the current rates?
Below is a list of services and the regulations governing the rates of payment. For the current rate of a service, please click on the link.
- Abortion and Sterilization Services, 101 CMR 313.00 (formerly 114.3 CMR 13.00)
- Adult Day Health, 101 CMR 310.00 (formerly 114.3 CMR 10.00)
- Ambulance Services, 114.3 CMR 27.00
- Chronic Maintenance Dialysis Treatment and Home Dialysis Supplies, 101 CMR 337.00 (formerly 114.3 CMR 37.00)
- Hearing Services, 101 CMR 323.00 (formerly 114.3 CMR 23.00)
- Home Health Services, 101 CMR 350.00 (formerly 114.3 CMR 50.00)
- Hospice Services, 101 CMR 343.00 (formerly 114.3 CMR 43.00)
- Independent Living Services for the Personal Care Attendant Program, 101 CMR 309.00 (formerly 114.3 CMR 9.00)
- Outpatient Tuberculosis Control Services, 114.3 CMR 8.00
- Prescribed Drugs, 101 CMR 331.00 (formerly 114.3 CMR 31.00); Informational Bulletin #04-11
- Psychiatric Day Treatment, 101 CMR 307.00 (formerly 114.3 CMR 7.00)
- Rates for Community Health Centers, 101 CMR 304.00 (formerly 114.3 CMR 4.00)
- Rates of Payment for Mental Health Services Provided in Community Health Centers and Mental Health Centers, 101 CMR 306.00 (formerly 114.3 CMR 6.00)
- Rates of Payment to Resident Care Facilities, 101 CMR 204.00 (formerly 114.2 CMR 4.00)
- Standard Payments to Nursing Facilities, 101 CMR 206.00 (formerly 114.2 CMR 6.00)
- Rates for Certain Substance Use Disorder Programs, 101 CMR 346.00 (formerly 114.3 CMR 46.00)
- Vision Care Services and Ophthalmic Materials, 101 CMR 315.00 (formerly 114.3 CMR 15.00)
6. Why are Pharmacy payments for industrial accidents under a different regulation?
EOHHS uses the same prescription drug prices for both workers’ compensation and Medicaid. Therefore, the workers’ compensation regulations (114.3 CMR 40.00) refers to the EOHHS prescribed drugs regulation, 101 CMR 331.00. For more information, please see Informational Bulletin #04-11.
7. How do insurers determine jurisdiction? Are out-of-state providers required to accept medical rates set by EOHHS under Massachusetts law?
The DIA Reviewing Board ruled in Tedeschi v. S&F Concrete, 6 Mass. Workers’ Comp. Rep. 120 (1992) that out-of-state providers are bound by the rates set by EOHHS. Since other jurisdictional questions on coverage are highly dependent on the facts, you may wish to consult with your attorney about your particular situation.
8. Some employers, in order to keep their insurance premiums low or unchanged, would prefer to pay for a worker’s injury rather than report it to the employer’s workers’ compensation carrier. Is this practice legal in Massachusetts?
9. What is the role of PPA, HMO, and MCO agreements?
Preferred Provider Agreements (PPAs) are governed by 211 CMR 51.00, promulgated by DOI. Employers with a PPA are allowed to require that the injured worker be initially assessed by a provider who participates in the PPA. Injured workers have the right to choose treating providers outside of health maintenance organization (HMO) and managed care organization (MCO) plans. Limitations on an injured worker’s provider choice apply only to the first scheduled visit in these plans. (See M.G.L. c. 152, s. 30.)
10. Do workers’ compensation rates apply to medical services for police and firefighters?
M.G.L. c. 41, s. 100 allows cities and towns to pay the “reasonable” medical expenses of police and firefighters for work-related health problems. Cities and towns utilize other governmental purchaser rate levels for this special group. Contact the Center for Health Information and Analysis (CHIA) at 617-701-8100 for questions regarding police and firefighters.
11. Can the employee/worker be billed for balances and/or in addition to the rates set by EOHHS?
No. Under M.G.L. c. 152, s. 13(1), an employee is not liable for amounts in excess of the rates set by EOHHS. Providers that have received less than they believe they are entitled to may file a third-party lien ( Form 115 – Third Party Claim/Notice of Lien ) under the direction and administration of DIA.
12. If the procedure code isn’t listed in 114.3 CMR 40.00, how should the provider be paid? What about a hospital outpatient or clinic setting?
For certain types of services, durable medical equipment and ambulatory surgery for example, the regulation directs the reader to another source to determine a rate of payment. For other services, the procedure is treated as an individual consideration (IC) rate. In a hospital setting, the hospital PAF is applied against charges for unlisted procedures. (See #4 and #13.)
13. What is the procedure for negotiating an individual consideration (IC) rate?
A number of services identified in the fee schedule are listed as IC rates and billed in this fashion. To determine payment for an IC rate, the purchaser must evaluate the claim for services rendered and consider the severity or complexity of the patient’s diagnosis or disability, time and degree of skill required, and the policies and payment levels of other purchasers. In a hospital setting, the hospital PAF is applied against charges.
14. What is the procedure for payment to massage therapists and other alternative or complementary therapists?
Massage therapists and other complementary therapists’ services are not included in 114.3 CMR 40.00. If the employer, the insurer, and the provider agree that it is beneficial to the injured worker, then the parties may agree to the service and negotiate a rate and acceptable code(s) for billing purposes.
15. How can one bill for nurses and physician assistants under 114.3 CMR 40.00?
Currently, physician assistants working under the supervision of a physician may not bill separately for medical procedures. Independent nurse practitioners are now eligible providers within the scope of their licensure, and may bill separately. Non-physician providers are subject to a service-level reduction in payments and must apply an appropriate modifier for billing purposes.
16. Can chiropractors use radiology codes not listed in the section for chiropractic services?
Yes. Chiropractors may bill for radiological services allowed under his/her licensing scope that are listed in 114.3 CMR 40.05(12).
17. How are the preoperative and postoperative ambulatory periods defined?
EOHHS defines preoperative and postoperative periods as the duration of the patient’s stay at the facility. This definition also applies to ambulatory surgery center (ASC) facility fees and to related surgical procedures performed on the same day. For those procedures identified as inclusive in 114.3 CMR 40.00, the period is extended to include up to two normal postoperative office visits.
18. Why is CPT code 97010 (the application of hot/cold pack) removed from the current version of the fee schedule?
EOHHS has found that this is not a commonly payable code by other payers, including Medicare. Therefore, EOHHS has removed code 97010 for the application of a hot/cold pack as a separately payable code. EOHHS advises that if the item is supplied to the patient for home use, the hot/cold pack may be billed under code A9999, Miscellaneous DME supply, and can be paid at an IC rate according to the guidelines under 114.3 CMR 40.05(6)(f).
19. Are all hospital services payable at the PAF?
No. With few exceptions, EOHHS establishes rates for comparable services regardless of the setting in which the services are provided. See 114.1 CMR 41.00. The exception is for certain restorative services, certain surgeries that require the immediate availability of inpatient hospital services, and services performed on an emergency basis.
20. Is the insurer/payer required to pay the entire hospital bill for ambulatory services using either the fee schedule or the PAF?
The PAF should be applied to the entire bill for emergent services and ambulatory surgeries that require the availability of inpatient hospital services. If observation services are required and all other billed services are payable under 114.3 CMR 40.00, then the PAF should be applied only to the observation charges.
21. When is an emergency department visit not paid at the PAF rate?
22. When is ambulatory surgery paid at the PAF?
The PAF is used when there is no other payment identified by Medicare for the ASC procedure. First review Medicare’s most recent ASC List of Payable Procedures, office-based procedures, and bundled or packaged procedures. If the procedure is not listed in one of these sources then the procedure is payable pursuant to 114.1 CMR 41.04(1)(b).
23. Why is there an additional percentage add-on to acute care hospital bills for the Health Safety Net when hospitals bill according to 114.3 CMR 40.00?
The Health Safety Net (HSN) is funded by several sources, including an assessment on acute care hospitals, a surcharge on hospital payments made by private insurers, the Massachusetts General Fund, and other sources. While payments by workers’ compensation insurers are exempt from the surcharge on hospital payments, the hospital outpatient charges for services to workers’ compensation patients are not exempt and thus subject to the acute hospital assessment. For this reason, Massachusetts acute care hospitals may bill separately an add-on that is calculated as a percentage of the published charges for any services subject to payment using the fee schedule. Payments for outpatient services at the hospital’s PAF are not subject to this add-on. EOHHS updates the percentage by October 1stof each year based upon the revised hospital uniform allowance. The assessment is not payable to non-acute or out-of-state hospitals.
24. How do I get on your mailing list for rate updates and other information?
If you wish to sign up for notifications for updates to any of the EOHHS regulations, please visit the Regulatory Email Notifications page on the EOHHS website. Just fill in the application form at the bottom of the page and indicate which regulations you want to be notified about when they change.
25. Whom should I call with additional questions about workers’ compensation rates?
You can contact DIA at (617) 727-4900 or by email at firstname.lastname@example.org. For more information, visit DIA’s workers’ compensation website, at https://www.mass.gov/orgs/department-of-industrial-accidents.
On October 1st of every year, EOHHS issues a new HSN Uniform Assessment through Administrative Bulletin in accordance with 114.1 CMR 41.00: Rates of Payment for Services Provided to Industrial Accident Patients by Hospitals.
This Uniform Assessment is applied to claims for workers’ compensation services performed in a hospital outpatient setting that references the workers’ compensation fee schedule (114.3 CMR 40.00). The Uniform Assessment is also used for the separate hospital rates for restorative services outlined in 114.1 CMR 41.00 and ambulatory surgery facility fees.
The Uniform Assessment is NOT to be confused with percentages hospitals are assessed under 101 CMR 614.00: Health Safety Net Payments and Funding. Additionally, rates derived through the application of a hospital’s PAF are not subject to this Uniform Assessment as both the hospital’s PAF and 101 CMR 614.00 assessments already account for the HSN assessment. For additional background information on this subject, please see #23 above.