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Notice of Temporary Rulemaking for Workers’ Compensation Medical Fee Schedule

The Industrial Commission has proposed a temporary rule that has been submitted to the North Carolina Office of Administrative Hearings, Rules Division, for publication on its website, The proposed temporary rule was submitted to the North Carolina Office of Administrative Hearings, Rules Division, on October 18, 2016, and will be published on their website within 5 business days. Please click here for the text of the proposed temporary rule, amending 04 NCAC 10J .0103.

This temporary rule is proposed pursuant to N.C. Gen. Stat. § 150B-21.1(a)(5). The effects of the August 9, 2016 decision in Surgical Care Affiliates, LLC v. North Carolina Industrial Commission, No. 16-CVS-0060 (Wake County Superior Court) necessitate the expedited implementation of this temporary rule. This recent court decision invalidated the Industrial Commission’s medical fee schedule provisions for ambulatory surgery centers which had taken effect April 1, 2015, based on the court’s interpretation of Session Law 2013-410, Section 33(a), and the application of its fiscal note exemption language. Due to the court decision, the medical fee schedule, as applied only to ambulatory surgery centers, reverts back to the pre-April 1, 2015 provisions which provided for a maximum reimbursement rate of 67.15% of billed charges, resulting in an unforeseen retroactive and prospective multi-million dollar increase in costs to the workers’ compensation system. Although the August 9, 2016 decision has been stayed by the Superior Court during the appeal to the North Carolina Court of Appeals, it is the Industrial Commission’s statutory obligation to adopt a rule as quickly as possible to restore balance to the workers’ compensation system pursuant to N.C. Gen. Stat. § 97-26 in the event the decision is upheld on appeal. By putting a temporary rule in place as soon as possible, the period of time subject to a potential retroactive invalidation of the ambulatory surgery center fee schedule provisions will be limited to April 1, 2015 to December 31, 2016, providing certainty regarding medical costs for 2017 and beyond.

Prior to proposing the temporary rule, the Industrial Commission voluntarily held a non-mandatory public comment meeting on October 3, 2016, and accepted written comments from September 2, 2016 through October 10, 2016, in order to allow any person or entity the opportunity to present comments and proposals regarding potential rulemaking options to address the effects of the August 9, 2016 court decision. The Commission gave thorough consideration to all comments and materials presented in formulating the proposed temporary rule.

A public hearing on the proposed temporary rule will be held on Friday, November 18, 2016, at 1:00 p.m., in Room 2149 of the Dobbs Building, 430 North Salisbury Street, Raleigh, NC, 27603. Room 2149 is the Utilities Commission Hearing Room on the second floor of the Dobbs Building. The public comment period will run from October 19, 2016 to November 29, 2016. Please send any written comments to Kendall Bourdon at or 4333 Mail Service Center, Raleigh, NC 27699-4333, no later than November 29, 2016.