Division of Federal Employees' Compensation (DFEC)

FECA Bulletins have been divided into five-year groups to make it easier for you to search and find the information you are looking for. Active War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.

 

Table of Contents

 

Fiscal Year 2018

Bulletin

Subject

FECA Bulletin No. 18-03

War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.

FECA Bulletin No. 18-04

Opioid Prescribing Guidelines, Short-Term, Long-Term and High Dose Opioid Use

FECA Bulletin No. 18-05

Provider Exclusion - Ownership/Management Interest and Support Services

FECA Bulletin No. 18-06

Alternative Pain Management and Treatment for Opioid Use Disorder

FECA Bulletin No. 18-07

Protecting the Identity of Employees in Written and Oral Correspondence

Back to FECA Bulletins Table of Contents

 

Fiscal Year 2017

Bulletin

Subject

FECA Bulletin No. 17-04

Investigations related to Federal Employees' Compensation Act (FECA) Claimant Fraud

FECA Bulletin No. 17-05

Investigations related to Federal Employees' Compensation Act (FECA) Medical Fraud

FECA Bulletin No. 17-06

Uniform methodology for calculating permanent impairment of the upper extremities1 using the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment.

Back to FECA Bulletins Table of Contents

 

Back to BCT Table of Contents

FECA BULLETIN NO. 18-04

Issue Date: June 15, 2018

Subject: Opioid Prescribing Guidelines, Short-Term, Long-Term and High Dose Opioid Use

Background: Under the Federal Employees' Compensation Act (FECA), the Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) may provide to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103.

In accordance with the discretion granted to DOL and delegated to OWCP, OWCP's Division of Federal Employees' Compensation (DFEC) implemented a policy applicable to newly prescribed opioid users (i.e. where an opioid has not been prescribed within the past 180 days, if ever) in FECA Bulletin 17-07, issued on June 6, 2017

DFEC is now instituting a new supplemental policy to address long-term and high dose opioid therapy. While FECA Bulletin 17-07 applies to newly prescribed opioid users, and requires their treating physician to complete a Certification/Letter of Medical Necessity, Form CA-27 (LMN), after an initial 60-day period, this policy focuses on the effects of opioid therapy for all users. For long-term and/or high dose users where the prescribed opioid therapy is deemed to require further management, completion of Form CA-27 will now be required upon DFEC's request1. Claims staff will review factors such as the claimant's morphine-equivalent dose (MED), recent surgeries and the cumulative, continuous length of treatment in assessing the most appropriate action to take in each particular case.

In order to effectively and efficiently manage opioid prescriptions, DFEC has created Prescription Management units within DFEC's Branch of Program Integrity, Fraud Prevention and Prescription Management. DFEC currently has four Prescription Management Units located throughout the country (Jacksonville, Seattle, New Orleans and Chicago), and these units are staffed with Medical Benefits Claims Examiners (MBE). The MBEs are assigned cases based on claimant information (as opposed to OWCP case file number), so an MBE will be assigned cases throughout the country, rather than based on geographic jurisdictional lines (traditional district office assignments).

This means that DFEC has two types of claims examiners involved in medical case management. MBEs are responsible for reviewing and evaluating entitlement to compounded drug and opioid prescription medications and any related requests. They are also involved in ancillary duties that may arise during such medical case evaluation, to include claim expansion (inclusion of new, additional conditions based on medical evidence; approval and denial of treatment regimens; and/or issuance of decisions regarding entitlement to medical care).

Responsible Claims Examiners (RCE), located within each District Office, will continue to serve as the primary point of contact for the claimant for handling all other aspects of the case, to include initial and recurrence adjudications, payment of compensation, periodic entitlement reviews, job offers (temporary and permanent), loss of wage earning capacity determinations and disability management.

Purpose: To provide supplemental guidance to MBEs and RCEs on the management of cases and the authorization of opioid prescriptions where a claimant is receiving opioids for a work-related condition (other than cancer).

Action: For opioid prescriptions for any work-related condition other than cancer:2

  1. Upon review of an opioid recipient's MED and/or length of opioid treatment, the MBE may determine that further medical development is necessary. If so, the MBE should issue a letter to the attending physician. The letter should (1) address opioid-specific issues, (2) address other medical case management/entitlement issues, if applicable, and (3) request that the physician complete the LMN for consideration of further opioid authorization. The MBE should afford a reasonable period of time (generally 30 days unless there is an urgent concern for safety/health in which case 14 days' notice will suffice) for the submission of such documentation, depending on the nature of the inquiry.
     
  2. Following the expiration of the afforded time to respond, the MBE should review the medical evidence of record, to include the justification provided on the LMN and/or the supporting medical documentation. In evaluating whether further development is necessary, the MBE should assess factors including, but not limited to, (1) whether the physician has demonstrated enough knowledge regarding the claimant's medical condition to arrive at a sound medical opinion, (2) the level of medical rationale provided by the physician, and (3) whether the necessity is based upon objective clinical findings versus subjective complaints. See FECA Procedure Manual 2-810.6 for additional discussion on weighing and evaluating medical evidence.
     
  3. Should the MBE determine additional development is needed, he or she may again contact the claimant's physician for clarification. Depending on the sufficiency of the file describing the medical necessity for opioid usage, the District Medical Advisor (DMA) may also be consulted to determine the appropriateness of the opioid prescription and pain management plan, including requests for treatment/rehabilitation plans to treat dependence on opioids resulting from prescriptions for an employment-related condition. See FECA Procedure Manual 3-900.4 regarding the handling of concerns about medical treatment. The MBE may also choose to send the claimant for a second opinion (SECOP) examination if warranted based on the evidence of record. If a Field Nurse (FN) has been assigned to the case, the MBE may also direct the FN to address the issue of ongoing opioid usage with the treating physician. If a FN is not currently assigned, the MBE may make a task-based nurse referral to assist with opioid prescription management issues.
     
  4. If a conflict in medical opinion arises between the claimant's attending physician and either a SECOP examiner or DMA, the MBE should refer the claimant for a referee medical examination (RME) to resolve the conflict.
     
  5. Following appropriate development, if the medical evidence establishes that the opioid treatment is warranted, the MBE should notate the case record and review the case again at a reasonable interval.
     
  6. Following appropriate development, if the medical evidence establishes that the current opioid treatment is not warranted for the work-related condition(s), the MBE should review the medical evidence to determine whether any physician that has reviewed the case opines that the claimant would benefit from medication assisted treatment (MAT) or other treatment for opioid use disorder. If no such evidence exists, the MBE should proceed with the issuance of a proposed termination of entitlement to opioid medications. A period of 30 days should be provided for a response. After 30 days, the MBE should again review the case and any response, and either issue a final termination denying opioid entitlement or take additional development action as needed.
     
  7. If one of the physicians evaluating the claimant states that he or she would benefit from MAT or other treatment for opioid use disorder, the MBE should advise the claimant and the attending physician of such recommendation. If the attending physician disagrees or fails to respond, the MBE may explore (along with the claimant) information about appropriate treatment centers and may authorize a change of physician if the claimant wishes to seek treatment with another physician. If the claimant and attending physician support an alternative treatment plan, the MBE should authorize treatment and monitor progress as appropriate. A task-based nurse may be assigned to assist in facilitating this process. If the claimant and/or treating physician are ultimately unresponsive and/or not interested in pursuing any change in treatment plan, the MBE should proceed with the issuance of a proposed termination of entitlement to opioid medications (if the weight of the medical evidence continues to establish that the current opioid treatment is not warranted).
     
  8. In some instances, the weight of the medical evidence may establish that entitlement to opioid medication should be reduced instead of terminated. In such cases, the MBE should advise the claimant and attending physician of the availability of MAT or other treatment for opioid use disorder if recommended by a physician. The MBE should subsequently follow the guidance provided in item 6 or 7 above, except that a proposed reduction of opioid medication should be issued.
     
  9. A period of 30 days should be provided for a response to any proposed termination of, or reduction in, opioid medication. Following that period, the MBE should again review the case and any response, and either issue a final termination denying opioid entitlement or take additional development action as needed.3
     
  10. In addition to addressing the opioid issue, the MBE may also address other aspects of the claimant's medical condition that may have impact on the management of the case. The MBE will be able to take actions necessary to resolve the opioid issue and to address necessity of medical treatment, including issuing letters to accept additional medical conditions, issuing decisions to deny entitlement to medical treatment, and proposed terminations of medical and/or benefits. In such cases, the MBE should communicate with the RCE concerning actions that may impact the overall management of the claim. These communications may be documented through a CA-110 or memo to the file.
     
  11. Only the RCE will be responsible for taking actions involving disability or schedule award compensation. In addition, the RCE will still be responsible for periodic entitlement reviews, disability management and vocational rehabilitation efforts. The RCE will also issue decisions regarding termination of entitlement to benefits, even if the determination is based upon medical evidence received as a result of the MBE's actions or if the proposed termination was issued by the MBE. Additionally, in cases where a claimant may have entitlement to compensation as a result of an action taken by the MBE (i.e., stopping work for an in-patient treatment, etc.) the RCE will be responsible for making the compensation payments.

Applicability: Appropriate National and District Office personnel.

Disposition: This Bulletin is to be retained until incorporated into the Procedure Manual.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff

1 The issuance of this bulletin does not supersede or otherwise modify existing guidance on opioid prescribing guidelines provided in FECA Bulletin No. 17-07 (issued June 6, 2017).

2 The issuance of this Bulletin does not supersede or otherwise modify existing guidance on Fentanyl. See FECA Bulletin No. 11-05 (issued May 3, 2011).

3 If the proposed termination addresses issues other than opioid medication (i.e. termination of all medical benefits), the final termination should be issued by the RCE and not the MBE. See items 10 and 11. Also note that a termination of entitlement to opioid medication alone does not terminate entitlement to MAT or other treatment for opioid use disorder.

Back to Top of FECA Bulletin No. 18-04

Back to BCT Table of Contents

FECA BULLETIN NO. 18-05

Issue Date: July 03, 1018

Subject: Provider Exclusion - Ownership/Management Interest and Support Services

When an Excluded Provider has Ownership Interest or Management Activities in a Company Providing Medical Services to the FECA Program or An Excluded Provider Serves as a Provider of Medical Support Services

Background: The regulations for the Federal Employees' Compensation Act (FECA) pertaining to the exclusion of providers were substantially revised in 2011 to provide additional grounds for exclusion and to provide for an expanded role for the Department of Labor's Office of Inspector General. The FECA regulations at 20 CFR 10.5 contain the definitions that apply to the FECA program administered by the Office of Workers' Compensation Programs' Division of Federal Employees' Compensation (OWCP DFEC). The following regulatory definitions at 20 C.F.R. 10.5 are germane to this guidance:

(v) Qualified physician means any physician who has not been excluded under the provisions of subpart I of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP. [Emphasis added]

(w) Qualified provider of medical support services or supplies means any person, other than a physician or a hospital, who provides services, drugs, supplies and appliances for which OWCP makes payment, who possesses any applicable licenses required under State law, and who has not been excluded under the provisions of subpart I of this part. [Emphasis added]

Applicability: All National Office staff and District Office claims personnel; Department of Labor (DOL) Office of the Inspector General (OIG); Employing Agency (EA) personnel and OIG offices; and medical providers for FECA claimants who are qualified physicians and/or qualified providers of medical support services or supplies.

References: 5 U.S.C. 8103; 20 C.F.R. 10.5 and 20 CFR 10.815 – 10.826.

Purpose: To provide additional guidance and instructions when a provider who is excluded by the FECA program may have ownership interest/involvement in a medical company providing services/supplies to the FECA program as defined in 20 C.F.R. 10.5 (w).

Actions:

  1. A provider means a physician, hospital, or provider of medical services, appliances or supplies and includes all those who fall into the regulatory definitions set forth above; third party billing companies that assist providers with their FECA billings and register as providers.
     
  2. Section 10.815 outlines the grounds for excluding a provider from payment under the FECA. Under these regulations, a provider shall be excluded from payment under the FECA if the provider has:
     
    • (a) Been convicted under any criminal statute of fraudulent activities in connection with any Federal or State program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies;
       
    • (b) Been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any Federal or State program referred to in paragraph (a) of this section;
       
    • (c) Knowingly made, or caused to be made, any false statement or misrepresentation of a material fact in connection with a determination of the right to reimbursement under the FECA, or in connection with a request for payment;
       
    • (d) Submitted, or caused to be submitted, three or more bills or requests for payment within a twelve-month period under this subpart containing charges which OWCP finds to be substantially in excess of such provider's customary charges, unless OWCP finds there is good cause for the bills or requests containing such charges;
       
    • (e) Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;
       
    • (f) Failed, neglected or refused on three or more occasions during a 12-month period to submit full and accurate medical reports, or to respond to requests by OWCP for additional reports or information, as required by the FECA and § 10.800;
       
    • (g) Knowingly furnished treatment, services or supplies which are substantially in excess of the employee's needs, or of a quality which fails to meet professionally recognized standards; or
       
    • (h) Collected or attempted to collect from the employee, either directly or through a collection agent, an amount in excess of the charge allowed by OWCP for the procedure performed, and has failed or refused to make appropriate refund to the employee, or to cease such collection attempts, within 60 days of the date of the decision of OWCP.
       
    • (i) Failed to inform OWCP of any change in their provider status as required in section 10.800 of this title.
       
    • (j) Engaged in conduct related to care of an employee's FECA covered injury that OWCP finds to be misleading, deceptive or unfair.
       
  3. This section also includes automatic exclusions for any provider who has been convicted of a crime described in 20 C.F.R.10.815(a), or has been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any program as described in 10.815(b).
     
  4. Once exclusion of a provider is accomplished (whether automatic based on 10.815 a) and b) through criminal conviction or based on exclusion by another federal or state entity or based on 10.815 (c) through (j), that provider is also excluded from other activity related to the FECA program.
     
    1. The entities owned or controlled (5 percent or more) by the excluded medical provider are subject to exclusion from the FECA program.
       
    2. Entities in which the excluded medical provider is an officer, director, agent or managing employee are also subject to exclusion from the FECA program. The term "managing employee" means an individual, including a general manager, business manager, administrator and director, who exercises operational or managerial control over the entity, or who directly or indirectly conducts the day-to-day operations of the entity, such as, accounting, healthcare training or related billing or information technology.
       
    3. When an excluded medical provider has transferred ownership or control interest in an entity, in anticipation of or following a criminal conviction, to an immediate family member or to a member of the household of the provider, the entity in question is also subject to exclusion from the FECA program.
       
    4. Where OWCP DFEC is aware at the time of exclusion pursuant to 20 C.F.R. 10.815 of a provider holding ownership, performing management activities or conducting any of the above operations in connection with another entity, OWCP DFEC will provide an exclusion notice to the entities in question.
       
  5. Upon later receipt of information indicating that an excluded provider has or may have engaged in activities related to item number four, the Director for Federal Employees' Compensation will provide a warning notice (that provides that provider/entity an opportunity to immediately resign) and provide fifteen days to respond.

    OWCP will forward such information and any response received to DOL OIG for its review and recommendation. DOL OIG should submit its response to DFEC within 30 days.
     
    • Note: Any Employing Agency OIG wishing to submit information pertaining to an excluded provider owning or managing a company or performing activities as a provider of medical support services or supplies should submit the information to OWCP and DOL OIG. DOL OIG should provide analysis and a recommendation concurring or disagreeing with the Employing Agency OIG's assessment.
       
  6. Following the warning and receipt of response from DOL OIG, if the evidence establishes that the excluded provider has an ownership/management interest or is performing activities such as those enumerated in item four, the Director for Federal Employees' Compensation will send a notice to the excluded entity/provider in question (including a copy of the evidence relied upon) and provide thirty days to respond. At the end of thirty days, the DFEC Director will issue a final decision.
     
  7. When the process above is inextricably related to a prior provider exclusion, it is not separately subject to a hearing process by the Department of Labor's Office of Administrative Law Judges and no further appeal may be taken except to the OWCP Director upon request made in writing within 30 days of the DFEC Director's final decision.
     

Disposition: This bulletin is to be retained until the FECA PM has been updated.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: Claims Examiners, Medical Benefits Examiners, Program Integrity Unit, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, Staff Nurses and Fiscal

Back to Top of FECA Bulletin No. 18-05

Back to BCT Table of Contents

FECA BULLETIN NO. 18-06

Issue Date: August 8, 2018

Subject: Alternative Pain Management and Treatment for Opioid Use Disorder

Background: Prescription opioid misuse (i.e., taking opioids in a way other than prescribed) and opioid use disorder (OUD) (i.e., a problematic pattern of opioid use that causes significant impairment or distress) is a significant and growing public health problem in the United States (U.S.). Opioid misuse and opioid use disorder can impair a worker's ability to return to work, operate safely at work, and maintain meaningful employment1. Per the Centers for Disease Control (CDC) prescribing guidelines, unless a patient is receiving cancer, palliative, or end of life care, opioids should not typically be an initial treatment option for chronic pain (https://www.cdc.gov/drugoverdose/pdf/nonopioid_treatments-a.pdf).

Alternative methods for controlling pain that prevent or minimize the risks of opioid misuse and OUD are encouraged and may include non-opioid pharmacological therapy and non-pharmacologic treatments. These alternative treatments are more likely to help reduce disability, facilitate return to work, decrease instances of opioid misuse, and improve the claimant's quality of life. When opioid use disorder is suspected, treatments such as Medication Assisted Treatment (MAT)2 should be considered if indicated by a qualified physician3.

The Office of Workers' Compensation Programs' (OWCP) Division of Federal Employees' Compensation intends to minimize barriers and increase access to treatment for claimants facing challenges relating to opioid use. In order to achieve this, many cases will be assigned an indicator as an administrative control for authorization of certain treatment—the presence of this indicator is critical for treatment authorization. This indicator will be added to cases with documented opioid use and to additional cases at OWCP's discretion. The indicator will provide injured workers easier access to treatment and coverage of many types of MAT as well as allowing emergency treatment such as medically managed withdrawal (detox) without prior authorization.4 Authorization for treatment will be linked to and dependent upon the presence of this indicator, regardless of the accepted conditions on the claim. Levels of authorization will vary as appropriate based on the procedure.

Treatment has various components, structures and intensities, and can be delivered at varying levels of care in different settings. Settings include outpatient, intensive out-patient, partial in-patient hospitalization, medically monitored and medically managed residential, and in-patient hospitalization. The level, type and intensity of care should generally be based on a clinical assessment and the least intensive clinically appropriate path of treatment should be considered first. The type, intensity, and duration of treatment should be determined based on the medical needs of the specific individual and will be guided by physician recommendations and reviews.

Purpose: To provide guidance to claims staff on the authorization of alternative pain management and for treatment for claimants with OUD.

Action:

  1. AUTHORIZING PAIN MANAGEMENT ALTERNATIVES WITHOUT THE USE OF OPIOIDS. OWCP encourages authorization of alternatives consisting of varying treatments including both pharmacological and non-pharmacological approaches.
     
    1. Alternative Pain Medications

      Non-opioid pain medications can be used to treat pain. Common non-opioid pain relievers include acetaminophen and non-steroidal anti-inflammatory drugs (NSAIDS) (e.g., ibuprofen, aspirin, naproxen). Other medications are sometimes used to treat neuropathic and musculoskeletal pain, such as low-dose tricyclic antidepressants or serotonin and norepinephrine reuptake inhibitors. Anticonvulsants may also be used to treat neuropathic pain.

      According to the CDC guidelines5, non-pharmacologic therapy and non-opioid pharmacologic therapy are preferred for treatment of chronic pain. If opioids are used, they should be combined with non-pharmacologic therapy and non-opioid pharmacologic therapy, as appropriate.

      Non-opioid pain medications are typically covered without requiring any prior authorization or review by the claims examiner.
       
    2. Pain Management Without Medication

      Non-pharmacologic physical and psychological treatments such as physical therapy, exercise and cognitive behavioral therapy are approaches that encourage active patient participation in the care plan, address the effects of pain in the patient's life, and can result in sustained improvements in pain and function without apparent risks.6
       
      • Cognitive behavioral therapy (CBT). CBT is a form of psychotherapy that focuses on identifying, understanding, and modifying thoughts, perceptions, and behaviors that can impede healthy functioning. Studies demonstrate that CBT can be effective in the management of chronic pain.
      • Physical therapy, including exercise therapy. Aerobic, aquatic, and/or resistance exercises for patients with osteoarthritis of the knee or hip and for patients with low back pain reduces pain and improves function.
      • Transcutaneous electrical nerve stimulation (TENS). TENS therapy uses low-voltage electrical current for pain relief. TENS is relatively inexpensive and has few risks, which makes it a reasonable therapy to consider in addition to other pain management treatments.
         
      Note: Aversion therapy will not be authorized.7

      While non-pharmacologic treatments cited above are available under the FECA Program, the treating physician must submit a request for authorization to the medical bill processing unit prior to proceeding. The claims examiner should review the request in accordance with established procedure as addressed in the FECA Procedure Manual 2-810.14 and take action as appropriate. The District Medical Advisor (DMA) can be consulted or the case may be referred for a second opinion examination if necessary prior to approving care.
       
    3. In-patient Pain Management Programs

      Other treatment includes in-patient pain treatment programs that draw on the multidisciplinary expertise of various specialists trained in the evaluation and treatment of chronic pain. These programs formulate individualized treatment and rehabilitation plans that seek to achieve a reduction of pain and discomfort while tapering from ineffective or high risk medications (e.g., opioids, benzodiazepines, muscle relaxants), treating the psychological distress that often accompanies pain, and improving physical function. Treatment may include physical therapy, CBT, TENS, biofeedback and relaxation training.

      The claims examiner may approve in-patient pain treatment programs, however, depending upon the circumstances of the case; review by a District Medical Advisor (DMA) or referral to a second opinion (SECOP) physician may be used to establish medical necessity.
       
  2. AUTHORIZING TREATMENTS FOR OPIOID USE DISORDER (in/out-patient therapy, care coordination, treatment plan inquiries). There are instances where the treatments outlined in Section 1 may not be effective; where opioids have been prescribed, this may in turn lead to an opioid use disorder. Treatments for opioid use disorder may include MAT and treatment in specialized programs, on both an outpatient and an in-patient basis. The type and intensity of treatment should be determined by recognized standards, such as the American Society of Addiction Medicine Criteria with the least intensive clinically appropriate form of care being the initial treatment of choice. The claims examiner may also make task-based nurse assignments on as needed basis so that a nurse case manager can assist with the authorization and coordination of treatment, as well as with post-treatment care.

    Removing barriers to treatment will allow claimants to achieve more positive pain management outcomes, and will therefore minimize any further chance of opioid misuse. It will also allow easier access to treatment for those who do develop opioid use disorder.

    Claimants and treating physicians will be notified of options for treatment for possible opioid use disorder. A letter will be sent with the first authorization of opioids after the initial 60-day period advising them of OWCP's concerns about extended usage and explaining possible options for management or treatment. An additional letter will be sent when (1) opioid use has persisted for at least 120 days or (2) when review by a District Medical Advisor (DMA); an OWCP directed second opinion or impartial referee medical examination; advises that opioid misuse or opioid use disorder is suspected and/or that continuing opioid use is not recommended and/or that OUD treatment is recommended.
     
    1. Medication Assisted Therapy

      MAT combines medication with behavioral therapy and counseling to treat opioid use disorder (OUD), help sustain recovery and prevent opioid overdose. MAT is a safe and clinically effective intervention for those with opioid use disorder and is usually the first line therapy for OUD. MAT significantly reduces the need for inpatient detoxification services for OUD individuals. MAT is also associated with reductions in substance use, mortality, treatment dropouts, and Human Immunodeficiency Virus (HIV) and Hepatitis C infections, as well as improved psychosocial functioning and overall quality of life.8

      The primary medications used for MAT are9:
       
      • Methadone, an opioid agonist, is FDA approved for detoxification treatment of opioid addiction, and maintenance treatment of opioid addiction in conjunction with appropriate social and medical services. The drug is available through an oral tablet, dispersible tablets, and a solution. Methadone has been shown to reduce all-cause mortality in those with OUD.10
         
      • Buprenorphine, is a partial opioid agonist, is FDA approved for the treatment of opioid dependence in conjunction with a complete treatment plan that includes counseling and psychosocial support. Buprenorphine is available in multiple formulations including tablets, films, an extended release solution, and through an implant. Naloxone (an opioid antagonist) is also formulated with buprenorphine in a fixed combination product to deter abuse. Buprenorphine, like methadone, has been shown to reduce all-cause mortality in those with OUD.
         
      • Naltrexone, an opioid antagonist, is FDA approved for the prevention of relapse to opioid dependence, following opioid detoxification. The drug is available as an oral tablet or through a once monthly injection. Naltrexone may diminish or eliminate opiate-seeking behavior and prevent conditioned abstinence syndrome.
         
      Many types of MAT may be initiated without prior authorization when a case has an indicator assigned. For example, an evaluation of a new patient for suitability of buprenorphine treatment (CPT 99205) would not require authorization. However, a claims examiner may need to review and evaluate progress with MAT in order to approve continuing care and where appropriate contact the physicians to obtain additional information concerning the patient's progress (including the need for tapering) and need for further treatment.
       
    2. Opioid Treatment Programs

      Opioid Treatment Programs (OTPs) provide a comprehensive, individually tailored program of MAT integrated with psychosocial and medical treatment and support services that address factors affecting each patient. Treatment in OTPs can include management of withdrawal symptoms (detoxification) from opioids and medically supervised withdrawal from maintenance medications. Treatment can be provided as out-patient, in-patient or as partial in-patient. These services can be provided in physician's offices, substance use disorder treatment facilities, or by specialized units within hospitals. After completing in-patient hospitalization or intensive outpatient treatment, individuals often transition into regular outpatient treatment which meets less frequently and for fewer hours per week to help sustain their recovery.

      Referrals for an opioid treatment program will need to come from a "physician" as defined by DFEC including physicians, surgeons, clinical psychologists, and osteopathic practitioner, but not to include podiatrists, dentists, optometrists, or chiropractors. Referrals to OTPs will also need to be to programs that meet SAMSHA and DEA licensing requirements or waivers.

      Treatment in domiciliary settings (i.e., sober homes, halfway and quarter-way houses) will be excluded from authorization.11
       
    3. Outpatient Treatment

      Outpatient treatment can be provided by physicians in an office setting or in specialized outpatient programs. Outpatient treatment should usually be considered as the first line of treatment and may also be utilized as a follow up measure to in-patient care.
       
      • Office based treatment. Physicians in an office-based setting can prescribe outpatient supplies of medication to assist in medically managed withdrawal (detoxification) and/or MAT for treatment of opioid use disorders.
         
      • Intensive outpatient program (IOP). This is a program that includes assessment, treatment, case management and rehabilitation for individuals that do not require 24-hour care. The program structure is regularly scheduled, individualized and shares monitoring and support with the patient's family and support system.
         
      Medically necessary outpatient treatment will not require pre-authorization, but will still require a physician referral.
       
    4. In-patient Treatment

      Treatment may also be provided in a substance abuse disorder facility or within a specialized unit within a hospital (whether residential or inpatient), and may be provided on either a partial or fully in-patient basis.
       
      • Partial in-patient hospitalization. Partial hospitalization can provide medically monitored therapeutic services, to include management of withdrawal symptoms, as medically indicated. Services may include day, evening, night and weekend treatment programs. Partial hospitalization can provide crisis stabilization, and can also provide and a transition from an inpatient program when medically necessary.
         
      • In-patient hospitalization. These include emergency services necessary to prevent the death or serious impairment of the health of the patient. In-patient treatment can also provide treatment for medically managed withdrawal (detoxification) as well as providing initial intensive treatment, for stabilization and for treatment of medical complications of substance use disorder.
         
      Emergency treatment will not require prior authorization, but authorization for a continuation of services must be obtained promptly. For example, if CPT codes for Screening, Brief Intervention, and Referral to Treatment are utilized in conjunction with diagnostic codes for opioid poisoning, prior authorization will not be needed. Certain requests will, however, still require claims examiner review. For example, a non-emergency inpatient hospital care for drug detoxification (CPT 99223) will require claims examiner authorization prior to the commencement of treatment.

      The claims examiner may also approve a one-time inpatient substance abuse treatment program up to 28 days in length. Such a program may be approved even if the claims examiner has not accepted substance abuse as related to employment in cases where the abuse is hindering the claimant from participating in a rehabilitation program or securing employment. The treatment facility should be located within 25 miles of the claimant's home wherever possible, and in some instances a cost comparison between comparable facilities may be required before care is authorized. In rare cases, the FECA program may approve subsequent courses of inpatient substance abuse treatment.

      All such treatment beyond 90 days will require additional DMA review. If in-patient/residential care is anticipated to last for greater than 28 days, the case should usually be sent to the DMA for review, but a Supervisor may provide an interim authorization if needed for continuation of care.
       

Applicability: Appropriate National and District Office personnel.

Disposition: This bulletin is to be retained until incorporated into the Procedure Manual.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff

-----

1 The National Safety Council's The proactive role employers can take: OPIOIDS IN THE WORKPLACE http://www.nsc.org

2 MAT is provided through opioid treatment programs (OTP) that must be certified by the Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA) to confirm that the program conforms to federal regulations governing treatment for substance use disorder. All OTPs should also be licensed by the state in which in which it operates and must register with the Drug Enforcement Administration (DEA). OTPs should also have staff that is properly credentialed to administer treatment.

3 The Healthcare Fraud Prevention Partnership's Commitment to the Management of Opioid Misuse and Opioid Use Disorder, Healthcare Payer Strategies to Reduce the Harm of Opioids, White Paper January 2017, Non-Opioid Pain Management Alternatives. https://downloads.cms.gov/files/hfpp/hfpp-opioid-white-paper.pdf

4 For example, an appropriately billed emergency department visit for a patient with complicated overdose requiring aggressive management to prevent side effects from ingested materials (which may be billed using CPT 99285) would not need prior authorization in claims with this indicator.

5 CDC Guideline for Prescribing Opioids for Chronic Pain – United States, 2016, Recommendations and Reports / March 18, 2016 / 65(1); 1–49. https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm

6 The Healthcare Fraud Prevention Partnership's Commitment to the Management of Opioid Misuse and Opioid Use Disorder, Healthcare Payer Strategies to Reduce the Harm of Opioids, White Paper January 2017, Non-Opioid Pain Management Alternatives. https://downloads.cms.gov/files/hfpp/hfpp-opioid-white-paper.pdf

7 Aversion therapy that consists of programmed use of physical measures such as electric shock as negative reinforcement will not be authorized, even if recommended by a physician. See generally Tricare Policy Manual, 6010.60-M, Chapter 7 Revision C-13, November 15, 2017.

8 The Healthcare Fraud Prevention Partnership's Commitment to the Management of Opioid Misuse and Opioid Use Disorder, Healthcare Payer Strategies to Reduce the Harm of Opioids, White Paper January 2017, Non-Opioid Pain Management Alternatives. https://downloads.cms.gov/files/hfpp/hfpp-opioid-white-paper.pdf

9 Id

10 Sordo L, Barrio G, Bravo MJ, et al. Mortality risk during and after opioid substitution treatment: systematic review and meta-analysis of cohort studies. BMJ 2017;357:j1550.

11 See generally Tricare Policy Manual, 6010.60-M, Chapter 7, Section 3.5, Revision C-13, November 15, 2017

Back to Top of FECA Bulletin No. 18-06

Back to BCT Table of Contents

FECA BULLETIN NO. 18-07

Issue Date: August 17, 2018

Subject: Protecting the Identity of Employees in Written and Oral Correspondence

Background: Division of Federal Employees' Compensation (DFEC) employees routinely respond to a myriad of written and telephonic inquiries, and issue written correspondence when developing and adjudicating a claim, and when terminating, reducing or suspending medical and/or compensation entitlement. Employees have expressed security and safety concerns regarding use of names in these communications.

DFEC recognizes the importance of the safety and welfare of its employees in its mandate to fulfill the requirements of the FECA, 5 U.S.C. 8101 et. seq. As a result, DFEC has changed its longstanding procedure of placing employee names on written correspondence, including all formal decisions. A similar change will also apply to oral communication.

Notice regarding this change was published in the Federal Register on April 18, 2018. See Federal Register / Vol. 83, No. 75, page 17196.

Purpose: To provide guidance on the format by which DFEC employees should identify themselves on written and oral communication/correspondence.

Applicability: All National Office and District Office personnel.

Action: Balancing the safety of our employees and the communication needs of our stakeholders, DFEC will use the below methods in identifying the authors of its written and telephonic communications:

  1. All signatures and names currently appearing on outgoing correspondence will be replaced with "Division of Federal Employees' Compensation," and the author of the document will be captured in the case management system.
     
  2. To preserve the Employees' Compensation Appeals Board's (ECAB) ability to identify the adjudicator of certain decisions such as reconsideration decisions, DFEC will use a Quick Response (QR) Code to identify decision authors.
     
  3. A naming convention for the staff will be used to provide every employee with a pseudonym for use in telephonic and other oral communications. The naming convention to create the pseudonym will be the employee's first name and last name initial. If more than one individual within an office has the same combination (e.g. two Thomas J.'s) then their middle initials will be added.
     
  4. Outgoing correspondence (including decisions) will not contain or otherwise reveal the pseudonym when printed. Instead the pseudonym will be embedded into a QR Code on the letter, allowing a QR scanner device to reveal the pseudonym.
     

Disposition: This Bulletin is to be retained until incorporated unto the DFEC Procedure Manual.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: All DFEC staff

Back to Top of FECA Bulletin No. 18-07

Back to BCT Table of Contents

FECA BULLETIN NO. 17-04

Issue Date: May 8, 2017

Subject: Investigations related to Federal Employees' Compensation Act (FECA) Claimant Fraud

Background: In recent years, the Office of Workers' Compensation Programs (OWCP) has seen increased investigative activity by Department of Labor (DOL) Office of Inspector General (OIG) and other federal OIG offices in relation to allegations of actual or possible fraudulent behavior by injured workers having an accepted claim under the FECA. Such investigations may involve allegations of misrepresentation of physical disabilities, failure to report earnings or volunteer activities as required by FECA regulations (20 CFR §§ 10.525, 10.526) or fraudulent claims for reimbursement of travel expenses.

The FECA regulations (20 CFR §§10.16, 10.17, 10.18) set forth criminal, civil and administrative penalties for claimants who have committed fraud in connection with a FECA claim or are incarcerated in a State or Federal penal institution or other correctional facility due to a State or Federal felony conviction. As not all allegations of fraud or abuse by the OIG community will result in criminal prosecution/conviction it is important to differentiate between types of OIG requests. Generally requests will fall within one of three categories: data/record requests, non-prosecutorial investigative memoranda or reports of investigation, and prosecutorial cases.

OWCP is committed to cooperation with the OIG, the Department of Justice and the state prosecutor as necessary in providing support and, if requested, testimony at trial as to OWCP program standards.

Applicability: Appropriate National Office staff and District Office personnel, DOL OIG and other federal OIG offices.

References: 5 U.S.C. §§ 8101-8113, 8124, 8128, 8145, 8148-8149; 18 U.S.C. 287, 641, 1001, 1920; and 20 C.F.R. Part 10. See also FECA Circular 17-03.

Purpose: The purpose of this bulletin is to explain the process for review of allegations related to FECA claimant fraud submitted by the OIG community.

Actions: The guidance provided in this bulletin pertains to allegations of FECA claimant fraud. Allegations of FECA medical provider fraud are addressed in FECA Bulletin 17-05. This guidance does not affect established procedures or change the process by which the OIG community is required to request information, data and/or records from OWCP, as explained in FECA Circular 17-03.

I. Data/Record Requests

Upon receipt of data requests related to suspected FECA claimant fraud submitted in accordance with FECA Circular 17-03, the request will be added to the Claimant Fraud Tracking mechanism. OWCP will acknowledge receipt, and the request will be forwarded to the appropriate District Office Fraud Liaison and/or other designee as appropriate. The District Office Fraud Liaison and/or other designee will provide the OIG with the requested records and update the tracking mechanism accordingly. These requests will not be added to the OWCP case file based on the assumption that the information being requested from an OIG is based on an investigation into a potential violation of law, as outlined in FECA Circular 17-03.

II. Non-Prosecutorial Cases

Upon receipt of an investigation that establishes inconsistencies or calls into question the validity of the medical evidence, the severity of the employment injury, or the reported work restrictions but the activities do not rise to the prosecutorial level (meaning the case was not accepted for state or federal prosecution), the Investigative Memoranda and/or Report of Investigation (IM) will be placed in the case file and used for case management actions. Upon receipt of such non-prosecutorial evidence, OWCP will add the IM to the Claimant Fraud Tracking mechanism. OWCP will acknowledge receipt, and the request will be forwarded to the appropriate District Office Fraud Liaison as appropriate.

A. Notification to OIG of Interpreted Intent – When the request is forwarded to the District Office Fraud Liaison, the OIG will be notified that the IM will be placed into the file and action taken as appropriate. By copy of this notification, OIG is provided an opportunity to object to inclusion in the case file if their intent in submission was misinterpreted.

B. District Office Fraud Liaison Action(s) – Upon receipt of non-prosecutorial evidence, the District Office Fraud Liaison will:

1. Bronze the document(s) in the case file;

2. Assign and track the IM within the District Office in accordance with current practice;

3. Respond to the OIG via regular mail, within 30 days of receipt, with an initial letter outlining planned actions (this letter is bronzed into the case file);

4. Update the Claimant Fraud Tracking mechanism with the date of the initial action;

5. Notify the OIG via regular mail upon conclusion of case actions, including the final disposition (this letter is also bronzed into the case file); and

6. Update the Claimant Fraud Tracking mechanism with the date of the final action, including the final disposition (e.g. benefits reduced, benefits terminated, forfeiture, no change in benefit level, etc.).

III. Prosecutorial Cases - In the event that an OIG investigation results in prosecution, OWCP assistance may be requested in one or more of the following forms: calculation of loss to the government, trial testimony, statutory and/or regulatory action in response to criminal convictions or guilty pleas, or general technical assistance. Requested assistance related to prosecutorial cases and any evidence received in association with such requests will not be placed in the OWCP case record until the investigation is completed; all documents will be stored separately.

A. Loss to Government Requests – In accordance with FECA Circular 17-03, when requesting a loss to government calculation, the OIG will submit a memorandum which should include: the date range(s) in question, the claimant's employment and/or earnings activities, the actual dollar amount earned or the approximate number of hours worked per day/week during the CA-1032 or CA-7 period(s), and the status of any criminal prosecution. A date by which the loss calculation is needed and any evidence supporting the loss should also be included. If such evidence is shielded by grand jury protection, the OIG agent should include notification of such so that a list of individuals who should be granted access to the necessary information may be provided.

1. Upon receipt of an OIG request for calculation of the loss to government, OWCP will:

a. Add the request to Claimant Fraud Tracking mechanism;

b. Store the incoming documents electronically and update the Claimant Fraud Tracking mechanism with the relevant identifying information; and

c. Forward the request to the District Office Fraud Liaison providing the requesting OIG with a copy of the communication which will include notification to all that the request will not be made a part of the OWCP case file until the investigation is completed.

2. Upon receipt of a request for calculation of the loss to the government, the District Office Fraud Liaison will:

a. Prepare the loss to the government memorandum in accordance with established procedures and submit it to the National Office Fraud Liaison and/or other National Office designee(s) for certification;

b. Provide any additional evidence, coordination and/or cooperation necessary to the National Office Fraud Liaison and/or National Office designee(s) until such time as the National Office returns the certified loss memorandum;

c. Submit the certified loss memorandum, signed by the District Director or his/her designee, to the requesting OIG personnel via secure email;

d. Electronically store a copy of the signed loss memorandum; and

e. Update the Claimant Fraud tracking mechanism with the date of the responsive action.

B. Trial Testimony Requests – In the event that trial testimony is required from the OWCP, the OIG will submit a request for such in accordance with FECA Circular 17-03. Upon receipt of a request for testimony, OWCP will:

1. Add the request to Claimant Fraud Tracking mechanism;

2. Store the incoming documents electronically and update the Claimant Fraud Tracking mechanism with the relevant identifying information;

3. Respond to the OIG and/or the prosecutor acknowledging receipt of their request for testimony and providing the name(s) of those designated to provide such testimony (a copy of the communication will be provided to the named designees as notification that their testimony is anticipated); and

4. The Claimant Fraud Tracking mechanism will be updated with any additional actions deemed appropriate, concluding with the date that OWCP testimony is provided or ultimately deferred.

C. Convictions or Guilty Pleas – In the event that a claimant is convicted or pleads guilty to a crime of fraud in connection with a claim under the FECA, the OIG will promptly submit notification and documentation of the conviction or plea in accordance with FECA Circular 17-03.

1. Upon receipt of such notification and evidence, OWCP will:

a. Add the request (or update the prior record if one already exists) to the Claimant Fraud Tracking mechanism; and

b. Forward the notification of conviction/guilty plea to the District Office Fraud Liaison and provide a copy of such to the originating OIG which will constitute acknowledgement of receipt.

2. Upon receipt of evidence of a conviction or guilty plea, the District Office Fraud Liaison will:

a. Bronze the conviction or guilty plea into the case file(s) of record as well as any other relevant information (e.g. the charging document);

b. Assign and track the conviction/guilty plea internally in accordance with current practice until a termination of compensation decision is issued in accordance with 5 USC §8148, the decision is bronzed in the case file, and compensation is terminated; and

c. Update the Claimant Fraud Tracking mechanism with the date of the decision.

Disposition: This bulletin is to be retained until the FECA PM has been updated.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

 

Back to Top of FECA Bulletin No. 17-04

Back to BCT Table of Contents

FECA BULLETIN NO. 17-05

Issue Date: May 8, 2017

Subject: Investigations related to Federal Employees' Compensation Act (FECA) Medical Fraud

Background: In recent years, the Office of Workers' Compensation (OWCP) has seen an increased interest in FECA medical fraud investigations by the Department of Labor's (DOL) OIG (Office of Inspector General), as well as other federal OIG, which may involve allegations against one or more providers for fraudulent billing practices. These practices include utilizing improper billing codes, receiving higher remuneration than appropriate, and colluding with other providers to schematically defraud the FECA program.

The FECA regulations (20 CFR §§10.815, 10.816) mandate the exclusion of medical providers who have been convicted of fraud against OWCP or other Federal or state programs, and nothing contained in these procedures affects these mandatory provider exclusion procedures. Further, nothing contained in these procedures affects or restricts the OIG's ability to refer matters related to OWCP fraud to the DOL debarment official for consideration of any suspension or debarment remedies the debarment official deems appropriate1. Moreover, the FECA regulations (20 CFR § 10.816(c)) provide that OWCP may exclude a provider on a voluntary basis at any time. See also 20 C.F.R. 10.817 [Regarding OWCP's discretionary exclusion procedures].

While exclusion remains an option to address fraudulent and other questionable provider billing activity, OWCP will also exercise the Secretary of Labor's authority under 5 U.S.C. § 8124 (a)(2) to review the billing of providers that are under investigation by OIG, as well as those providers identified by OWCP as potentially engaging in billing practices that are fraudulent. This authority allows OWCP to complete any investigation considered necessary in making an award for or against the payment of compensation, which includes payments to medical providers.

Applicability: Appropriate National Office staff and District Office personnel, DOL OIG and other federal OIG offices.

References: 5 U.S.C. § 8103; 5 U.S.C. § 8124 (a)(2); 5 U.S.C. § 8128; 5 U.S.C. § 8145; 5 U.S.C § 8149; 31 USC § 3716(a). See also 20 C.F.R. 10.800-826; 29 C.F.R. §§ 20.19-20.62.

Purpose: The purpose of this bulletin is to explain the process for review of allegations related to FECA provider fraud referred by the DOL OIG, OWCP Program Integrity Unit or non-DOL OIG.

Actions: The guidance provided in this bulletin pertains to allegations of FECA medical fraud. Allegations of FECA claimant fraud are addressed in FECA Bulletin 17-04. This guidance does not affect established procedures or change the process by which the OIG community is required to request information, data, or records from OWCP, as explained in FECA Circular 17-03.

I. IDENTIFICATION OF POTENTIAL CASES

A. Referrals from DOL OIG - Allegations related to FECA provider fraud may be referred to OWCP by DOL OIG through an Investigation Initiation Memorandum. When making a referral, DOL OIG shall provide as much information as possible with respect to the identity of the provider(s) and tax ID(s), the nature of the allegations or scheme, and any other relevant information. The initial referral may provide any of the following positions and, at additional times deemed appropriate, DOL OIG may update such and shall inform OWCP of the current status of the matter within DOL OIG, for example:

1. The allegations have been reviewed and no investigative action will be taken, and OWCP may pursue administrative action as outlined in Section II.

2. The investigation has been closed without referral for prosecution, or has been referred for prosecution and declined, and OWCP may conduct an administrative review of the provider's bills, as outlined in Section II, or take other appropriate administrative action.

3. The allegations have been reviewed, an investigation has been opened, and OWCP may conduct an administrative review of the provider's bills, as outlined in Section II, or take other appropriate administrative action.

4. The investigation has been accepted for prosecution, and the prosecuting office has acknowledged that OWCP may concurrently conduct an administrative review of the provider's bills, as outlined in Section II.

5. The allegations have been reviewed, an investigation has been opened, the information is being provided to OWCP for informational and de-confliction purposes only, and OWCP should not conduct any administrative review of the provider's bills or take other administrative action.

6. The investigation has been accepted for prosecution, and the prosecuting office has requested that OWCP not conduct any administrative review of the provider's bills.

If the matter has been accepted for prosecution, the prosecuting office and/or DOL OIG will, to the greatest extent possible, provide its expectations for OWCP participation in the prosecution.

B. Referrals from OWCP's Program Integrity Unit – If this unit identifies a potential case (e.g. during review and analysis of data/cases or based on referral from the District Office), an Investigation Initiation Memorandum documenting the initial findings will be created. Prior to taking any administrative action outlined in Section II, the Investigation Initiation Memorandum (with any supporting evidence) should be sent to DOL OIG for review. OWCP will then take appropriate action depending on DOL OIG's response, see Section I(A)1-6.

The memorandum will include the following information:

1. Name and tax ID numbers of the provider(s).

2. Summary of the potential fraudulent activity and how/why the provider(s) and/or case(s) was flagged for review, to include a finding of whether this provider has been previously flagged by DOL OIG.

C. Referrals from Non-DOL OIG - Allegations related to FECA provider fraud may be referred to OWCP by non-DOL OIG through an Investigation Initiation Memorandum. When making a referral to OWCP, non-DOL OIG shall provide as much information as possible with respect to the identity of the provider(s) and tax ID(s), the nature of the allegations or scheme, and any other relevant information.

Upon receipt of the non-DOL OIG Investigation Initiation Memorandum, OWCP will respond and acknowledge receipt. Prior to taking any administrative action outlined in Section II, OWCP will refer the Investigation Initiation Memorandum to the DOL OIG for review. OWCP will then take appropriate action depending on DOL OIG's response, see Section I(A)1 and 3-6.

II. OWCP FACT FINDING AND INVESTIGATIVE ACTIONS

A. Receipt of Referral - Upon receipt of an Investigation Initiation Memorandum in accordance with Section I or identification of a case by the Program Integrity Unit, an administrative investigation number will be assigned to the request, the investigative case will be added to the Provider Fraud Tracking mechanism, and the administrative investigation number will be provided to the OIG acknowledging receipt of the referral.

1. Investigation Initiation Memorandum and supporting documentation, if applicable, will be filed in its own electronic file in iFECS.

2. As noted in Section I, if a criminal investigation and/or prosecution is being pursued, or is pending, OWCP will take appropriate action as dictated by the circumstances of the case with due consideration of any limitations placed on the breadth of the investigation by the OIG and/or the prosecuting official.

3. If criminal prosecution has been declined or is not being pursued, or the case was identified by the Program Integrity Unit and there is no open criminal investigation or plans to open one, the following actions will be considered:

a. The provider(s) may be placed in "provider on review" status so that all bills submitted will require review and approval prior to payment.

b. Each bill submitted by the provider (or a sampling of those bills) may be reviewed to determine whether the bill is appropriate and the services may be paid under the rules set forth in the FECA regulations (20 C.F.R. §§ 10.800 – 10.813).

c. In the course of investigating each bill, OWCP may review any relevant documentation and may contact the relevant parties (provider, injured worker, employer, etc.) to query them about the services provided in the suspect bill. These contacts will be documented.

d. Each bill reviewed may be tracked (using the TCN) under the investigation number (and under the appropriate provider where appropriate).

e. A determination may be made whether to pay or deny the bill(s) based on the information gathered, and the decision for each bill will be recorded.

B. Conclusion - The OWCP investigation will conclude when sufficient information has been obtained to make a determination whether the provider's billing was appropriate or whether it was in some manner fraudulent, misleading, deceptive, or unfair.

1. If OWCP finds that the billing was appropriate:

a. A memorandum will be created outlining a summary of the investigative actions taken and the reason the billing was determined to be appropriate.

b. The memorandum will be placed into the electronic investigative file.

c. The Provider Fraud Tracking mechanism will be updated to close the case.

d. If the referral was received from an OIG a close out letter will be issued.

2. If review of the billing reveals minor anomalies or errors:

a. Such bills may (consistent with current practice) be returned to the provider with an opportunity for correction. The notice to provider will include a warning that continued uncorrected activity may result in exclusion or additional administrative actions as described in Section V.

b. The case will then be closed as outlined 1b-d above, and the provider's billing may be reviewed again in the future for compliance.

3. If OWCP finds that the billing was not appropriate and that it was in some manner fraudulent, misleading, deceptive, or unfair or falls within activities enumerated in 20 C.F.R. § 10.815(c) through (j):

a. An Investigation Conclusion Memorandum will be prepared for referral to the DOL OIG.

(1) The referral memorandum will include a summary of the OWCP's fact finding and investigative actions and the reason the billing was determined to be fraudulent, misleading, deceptive, unfair or falls within activities enumerated in 20 C.F.R. § 10.815(c) through (j). All applicable documentation will be included with the referral, including the DOL OIG referral to OWCP, if applicable. If the case originated from a non-DOL OIG or the Program Integrity Unit, the Investigation Initiation Memorandum and DOL OIG's response to the initial review of that referral will also be included.

(2) The OWCP referral will request a response from the DOL OIG (see Section III).

b. The referral will be placed into the electronic investigative file.

c. The Provider Fraud Tracking mechanism will be updated to annotate the referral.

III. DOL OIG ACTION IN RESPONSE TO OWCP PROVIDER FRAUD REFERRAL

DOL OIG will review the materials provided and will determine whether an investigation will be opened, or if prior investigative work had been performed whether additional DOL OIG review and investigation is appropriate.

If DOL OIG decides not to conduct an investigation or additional investigation as the case may be, closes an investigation without referral for prosecution, or makes a referral for prosecution which is declined, DOL OIG will provide a written report to OWCP which complies with 20 C.F.R. § 10.817(c). This report will state whether DOL OIG has reasonable cause to believe that violations of 20 C.F.R. § 10.815 have occurred, based upon the information received from OWCP, DOL OIG's own investigative work, or both.

If the referral has been accepted for prosecution, in addition to the § 10.817(c) report, DOL OIG will provide documentation indicating whether an AUSA (or other prosecutorial official) was assigned to the case, and, if so, that the AUSA (or other prosecutorial official) was advised of the exclusion process, including the potential for administrative hearing before the Department's Office of Administrative Law Judges, and that the AUSA (or other prosecutorial official) does not object to the DOL OIG finding that there is reasonable cause to believe that violations of 20 C.F.R. § 10.815 have occurred and has no objections to OWCP initiating its administrative exclusion process.

Following receipt of a §10.817(c) report from DOL-OIG, and the documentation if any from the AUSA (or other prosecutorial official), OWCP will take appropriate action as outlined below in Section IV.

IV. OWCP CONCLUDING RESPONSE TO PROVIDER FRAUD REFERRAL

A. Insufficient evidence - If the evidence was determined to be insufficient to prosecute the case and the evidence also was determined to be insufficient to pursue erroneous amounts paid through the OWCP administrative procedures under the Debt Collection Act; or OWCP agrees with DOL OIG that a reasonable basis does not exist to initiate exclusion procedures:

1. The response will be placed into the electronic investigative file.

2. The Provider Fraud Tracking mechanism will be updated to close the case.

3. If the referral was received from a non-DOL OIG a close out letter will be issued.

B. Accepted for Prosecution - If DOL OIG decided to prosecute the case and requested that administrative actions be deferred:

1. The response will be placed into the electronic investigative file.

2. The Provider Fraud Tracking mechanism will be updated.

3. No further action will be taken pending further DOL OIG activity.

C. Provider Exclusion – If there exists a reasonable basis to exclude the provider(s), OWCP may initiate exclusion procedures. See FECA Bulletin 11-08 (Exclusion of Providers).

D. Administrative Actions – If the evidence is sufficient to pursue administrative actions to deny bills and/or to collect improper billings through the Debt Collection Act (and subsection IV(B) does not apply), the procedures in Section V will be followed.

V. OWCP ADMINISTRATIVE PROCESS TO COLLECT IMPROPER BILLINGS THROUGH THE DEBT COLLECTION ACT

A. Proposed Decision/Debt Declaration - If OWCP's review of bills (not those reviewed by the central bill provider) reveals that payment would not be appropriate or should not have been paid, OWCP will deny any pending bills and declare a debt in relation to any bills previously paid improperly. Prior to declaring a debt, OWCP will issue a proposed decision that will provide notice of a debt including the amount and basis for the debt as well as an opportunity to contest the debt in accordance with 29 C.F.R. §§ 20.19-20.62:

1. The proposed decision will be issued over the signature of the Deputy for Program Integrity.

2. The proposed decision will include:

a. Notification that there has been a determination of a debt and the statutory authority for the debt (FECA 5 USC 8101 et seq. and the Debt Collection Act 31 USC § 3716(a));

b. A description of the precipitating action that gave rise to the investigation (DOL OIG referral, non-DOL-OIG referral or identification by the Program Integrity Unit);

c. A summary of the investigative actions taken after the potential fraudulent activity was identified;

d. The amount of debt, type of debt, and date the debt occurred;

e. A determination whether the billing was determined to be fraudulent, misleading, deceptive or unfair, and the reason for that finding;

f. Demand for repayment within 30 days;

g. The debtor's opportunity to enter a written agreement to repay the debt;

h. A warning that the provider is subject to the exclusion process for billing improprieties in accordance with 20 C.F.R. 10.815-826;

i. The rights of the debtor to a full explanation of the claim and the opportunity to inspect and copy OWCP records with respect to the claim;

j. Notification that the debtor has an opportunity for rebuttal within 30 days;

k. The debt determination is subject to appeal procedures, but OWCP may withhold bill payments to the medical provider while an appeal is in progress;

l. OWCP may refer a debt to Treasury for collection within the first 180 days after the final agency determination; and

m. The referral to and response from DOL OIG, with all applicable documentation, will be included with the decision.

3. The proposed decision will be placed into the electronic investigative file.

4. The Provider Fraud Tracking mechanism will be updated to reflect the proposed decision.

5. DOL OIG will be provided a copy of the proposed decision, and if the referral was received from a non-DOL OIG, they will also receive a copy.

B. Final Determination - After 30 days have passed, the Provider's response (if any) will be evaluated.

1. If the evidence no longer supports the denial of the bill(s) and/or creation of the debt, OWCP will provide a response to the Provider that the administrative debt creation process has ceased.

a. The final decision will be placed into the electronic investigative file.

b. The Provider Fraud Tracking mechanism will be updated to reflect the outcome.

c. DOL OIG will receive a copy of the provider's response and OWCP's determination, and if the referral was received from a non-DOL OIG, they will also receive a copy.

2. If the evidence continues to support denial of the bills and/or the creation of the debt:

a. A final decision will be prepared to include the reason(s) the evidence/response submitted was insufficient to alter the initial determination.

b. Any appeal of that final decision must be submitted in writing by the provider to the Director of DFEC within 30 days.

c. DOL OIG will receive a copy of the decision, and if the referral was received from a non-DOL OIG, they will also receive a copy.

d. The final decision will be placed into the electronic investigative file.

e. The Provider Fraud Tracking mechanism will be updated to reflect the final decision.

f. The medical bill processor may be alerted to place any further billings from the provider on review.

C. Appeals – If the Provider disagrees with the final decision, an appeal must be submitted to the Director of DFEC within 30 days. The appeal should include any additional evidence or argument for consideration in support of the appeal. Upon issuance of the Director's decision, the provider will be notified that there will be no further review of the debt and that the debt may be referred to Treasury for collection.

NOTE: Given hold close nature of False Claims Act cases and the length of time such cases may run, nothing in these processes will affect False Claims Act cases unless the Department of Justice requests action be taken or suspended.

Disposition: This bulletin is to be retained until the FECA PM has been updated.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

1It is noted that the debarment and suspension process is separate and independent of any OWCP actions. See 48 C.F.R. Subpart 9.4, 48 C.F.R. Subpart 2909.4; 29 C.F.R. Part 98.

 

Back to Top of FECA Bulletin No. 17-05

Back to BCT Table of Contents

FECA BULLETIN NO. 17-06

Issue Date: May 8, 2017

Subject: Uniform methodology for calculating permanent impairment of the upper extremities1 using the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment.

Background: The schedule award provisions of the Federal Employees' Compensation Act (FECA) at 5 U.S.C. 8107 and its implementing regulations at 20 C.F.R. 10.404 establish the compensation payable to employees sustaining permanent impairment. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables with uniform standards applicable to all claimants. The American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment has been adopted by the Office of Workers' Compensation Programs Division of Federal Employees' Compensation (DFEC) as the appropriate standard for evaluating schedule losses. In 2007, the AMA published the Sixth Edition of the Guides, noting that the Guides are revised periodically to incorporate current scientific clinical knowledge and judgment. This Edition implemented substantial reforms to the methodology of calculating permanent impairment. In August 2008, a 54 page "Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment" was distributed. The 54 page publication specified clarifications and corrections to the original printing of the Sixth Edition of the Guides.

In accordance with its long established practice, the DFEC adopted the "most recent version" of the Sixth Edition of the Guides on March 15, 2009, with an effective date of May 1, 2009. The most recent version of the Sixth Edition at that time was the second printing of the Sixth Edition in 2009 which incorporated the clarifications and corrections which were published in August 2008.

One revision involved the method for determining upper extremity impairment (addressed in Chapter 15 of the Guides). The second printing revised Section 15.2, page 387, to state "Range of motion is used primarily as a physical examination adjustment factor and only to determine actual impairment values when a grid permits its use as an option."

Although there are interpretive complexities within Chapter 15, the chapter states "Impairment evaluations of the upper extremity must be performed within the context of the directives in Chapters 1 and 2."

Chapter 2, page 20, of the Guides states that one of the "Fundamental Principles of the Guides" is that "If the AMA Guides provide more than one method to rate a particular impairment or condition, the method producing the higher rating must be used."

Under Chapter 15, diagnosis-based impairment (DBI) is noted as the primary method of evaluation of the upper limb and the Guides instruct that most impairment values for the upper extremity are calculated using the DBI method. Initially in Chapter 15, when defining DBI, range of motion (ROM) is noted to be used primarily as a physical examination adjustment factor and only to determine actual impairment values when a grid permits its use as an option. Diagnoses in the particular regional grids that may alternatively be rated using ROM are followed by an asterisk (*).

For instance, Table 15-5, Shoulder Regional Grid, pages 401 – 405, provides 20 specific diagnoses divided among three categories: Soft Tissue; Muscle/Tendon; and Ligament/Bone/Joint. Of those 20 diagnoses, 17 of them include an asterisk (*). At the bottom of Table 15-5, page 405, the asterisk (*) designation is explained as follows: "If motion loss is present, this impairment may alternatively be assessed using section 15.7, Range of Motion Impairment. A range of motion impairment stands alone and is not combined with diagnosis impairment."

Unfortunately, the complexities of the explanations and the language throughout Chapter 15 has sometimes led physicians who have evaluated DFEC claimants to provide inconsistent interpretations for calculating upper extremity impairments.

The Employees' Compensation Appeals Board (ECAB) held that in light of the conflicting language in the Sixth Edition of the Guides "it is incumbent upon OWCP through its implementing regulations and/or internal procedures to establish a consistent method for rating upper extremity impairment." T.H. Docket No. 14-0943 (issued on November 25, 2016).

Purpose: To provide administrative DFEC guidance in order to establish a consistent method for rating upper extremity impairment. Specifically, this Bulletin provides a uniform method for calculating the impairment as it relates to the use of diagnosis-based impairment (DBI) versus range of motion (ROM) methods.

Reference: 5 U.S.C. 8107; 20 C.F.R. 10.404. This Bulletin supplements the information contained in the Federal (FECA) Procedure Manual 3-0700 and 2-0808, as well as FECA Bulletin No. 09-03.

Applicability: District Medical Advisors and all National Office and District Office personnel. This applies to all schedule award decisions, initial as well as pending hearing and reconsideration decisions issued on or after the date of this Bulletin.

Action:

1. Impairment ratings should be based upon the most recent version of the Sixth Edition Guides. Currently, the reprinted 2009 AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition is the most recent version. As such, this version should be consistently utilized by the DFEC.

2. Upon receipt of a schedule award claim for upper extremity impairment, the Claims Examiner (CE) should continue to follow the procedures outlined in the Federal (FECA) Procedure Manual 2-0808 regarding development of schedule awards and eventual referral to the District Medical Advisor (DMA) as appropriate. Effective the date of this Bulletin, instructions to the rating physicians will be updated to provide specific guidance such that the rating evaluation should be performed in accordance with the policy described in this Bulletin.

3. As the Guides caution that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has an organic basis, three independent measurements should be obtained and the greatest ROM should be used for the determination of impairment, the CE should provide this information (via the updated instructions noted above) to the rating physician(s).

4. Upon initial review of a referral for upper extremity impairment evaluation, the DMA should identify (1) the methodology used by the rating physician (i.e. DBI or ROM) and (2) whether the applicable tables in Chapter 15 of the Guides identify a diagnosis that can alternatively be rated by ROM. If the Guides allow for the use of both the DBI and ROM methods to calculate an impairment rating for the diagnosis in question, the method producing the higher rating should be used.

5. If the rating physician provided an assessment using the ROM method and the Guides allow for use of ROM for the diagnosis in question, the DMA should independently calculate impairment using both the ROM and DBI methods and identify the higher rating for the CE.

6. If the rating physician provided an assessment using the ROM method and the Guides do not allow for the use of ROM for the diagnosis in question, the DMA should independently calculate impairment using the DBI method and clearly explain in the report, citing applicable tables in Chapter 15 of the Guides, that ROM is not permitted as an alternative rating method for the diagnosis in question.

7. If the rating physician provided an assessment using the DBI method and the Guides allow for use of ROM for the diagnosis in question, the DMA should independently calculate impairment using both the ROM and DBI methods and identify the higher rating for the CE.

8. If the medical evidence of record is not sufficient for the DMA to render a rating on ROM where allowed, the DMA should advise as to the medical evidence necessary to complete the rating. However, the DMA should still render an impairment rating using the DBI method, if possible, given the available evidence.

9. Upon receipt of such a report, and if the impairment evaluation was provided from the claimant's physician, the CE should write to the claimant advising of the medical evidence necessary to complete the impairment assessment and provide 30 days for submission. Any evidence received in response should then be routed back to the DMA for a final determination. Should no evidence be received within 30 days of the date of the CE's letter, the CE should proceed with a referral for a second opinion medical evaluation to obtain the medical evidence necessary to complete the rating. After receipt of the second opinion physician's evaluation, the CE should route that report to the DMA for a final determination.

If the original impairment rating found by the DMA to be insufficient was provided from a second opinion or referee physician (versus the claimant's physician), the CE should request a supplemental/clarification report from the second opinion or referee physician to address the medical evidence necessary to complete the impairment assessment. Medical evidence received in response to this request should then be routed back to the DMA for a final determination.

The CE should not render a decision on the schedule award impairment rating until the necessary medical evidence has been obtained. Proceedings under the FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares responsibility in the development of the evidence to see that justice is done. William J. Cantrell, 34 ECAB 1223 (1983).

10. The above guidance will be applied to all schedule award decisions as outlined above, , effective the date of this Bulletin. OWCP DFEC will not revisit prior cases unless a request for reconsideration is received that contains new legal argument and relevant medical evidence that addresses the necessary criteria outlined in this Bulletin. In accordance with existing procedure, where the original decision for which review is sought used the Sixth Edition and in the event that the recalculation results in a lesser impairment due to mathematical or other error, an overpayment will be declared.

Disposition: This Bulletin should be retained until incorporated in the Federal (FECA) Procedure Manual or otherwise superseded.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

1 This guidance should also be applied in addressing the much rarer situation where Guides offer alternative rating methods for lower extremity impairment.

 

Back to Top of FECA Bulletin No. 17-06