§431:10C-308.5 Limitation on charges. (a) As used in this article, the term "workers' compensation supplemental medical fee schedule" means the schedule adopted and as may be amended by the director of labor and industrial relations for workers' compensation cases under chapter 386, establishing fees and frequency of treatment guidelines. References in the workers' compensation supplemental medical fee schedule to "the employer", "the director", and "the industrial injury", shall be respectively construed as references to "the insurer", "the commissioner", and "the injury covered by personal injury protection benefits" for purposes of this article.

(b) The charges and frequency of treatment for services specified in section 431:10C-103.5(a), except for emergency services provided within seventy-two hours following a motor vehicle accident resulting in injury, shall not exceed the charges and frequency of treatment permissible under the workers' compensation supplemental medical fee schedule. Charges for independent medical examinations, including record reviews, physical examinations, history taking, and reports, to be conducted by a licensed Hawaii provider unless the insured consents to an out-of-state provider, shall not exceed the charges permissible under the appropriate codes in the workers' compensation supplemental medical fee schedule. The workers' compensation supplemental medical fee schedule shall not apply to independent medical examinations conducted by out-of-state providers if the charges for the examination are reasonable. The independent medical examiner shall be selected by mutual agreement between the insurer and claimant; provided that if no agreement is reached, the selection may be submitted to the commissioner, arbitration or circuit court. The independent medical examiner shall be of the same specialty as the provider whose treatment is being reviewed, unless otherwise agreed by the insurer and claimant. All records and charges relating to an independent medical examination shall be made available to the claimant upon request. The commissioner may adopt administrative rules relating to fees or frequency of treatment for injuries covered by personal injury protection benefits. If adopted, these administrative rules shall prevail to the extent that they are inconsistent with the workers' compensation supplemental medical fee schedule; provided that the fees set forth in the administrative rules adopted by the commissioner shall not exceed the charges permissible under sections 386-21 and 386-21.7.

(c) Charges for services for which no fee is set by the workers' compensation supplemental medical fee schedule or other administrative rules adopted by the commissioner shall be limited to eighty per cent of the provider's usual and customary charges for these services.

(d) Services for which no frequency of treatment guidelines are set forth in the workers' compensation supplemental medical fee schedule or other administrative rules adopted by the commissioner shall be deemed appropriate and reasonable expenses necessarily incurred if so determined by a provider.

(e) In the event of a dispute between the provider and the insurer over the amount of a charge or the correct fee or procedure code to be used under the workers' compensation supplemental medical fee schedule, the insurer shall:

(1) Pay all undisputed charges within thirty days after the insurer has received reasonable proof of the fact and amount of benefits accrued and demand for payment thereof; and

(2) Negotiate in good faith with the provider on the disputed charges for a period up to sixty days after the insurer has received reasonable proof of the fact and amount of benefits accrued and demand for payment thereof.

If the provider and the insurer are unable to resolve the dispute after a period of sixty days pursuant to paragraph (2), the provider, insurer, or claimant may submit the dispute to the commissioner, arbitration, or court of competent jurisdiction. The parties shall include documentation of the efforts of the insurer and the provider to reach a negotiated resolution of the dispute. This section shall not be subject to the requirements of section 431:10C-304(3) with respect to all disputes about the amount of a charge or the correct fee and procedure code to be used under the workers' compensation supplemental medical fee schedule. An insurer who disputes the amount of a charge or the correct fee or procedure code under this section shall not be deemed to have denied a claim for benefits under section 431:10C-304(3); provided that the insurer shall pay what the insurer believes is the amount owed and shall furnish a written explanation of any adjustments to the provider and to the claimant at no charge, if requested. The provider, claimant, or insurer may submit any dispute involving the amount of a charge or the correct fee or procedure code to the commissioner, to arbitration, or to a court of competent jurisdiction.

(f) The provider of services described in section 431:10C-103.5(a) shall not bill the insured directly for those services but shall bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's full charge and the amount paid by the insurer.

(g) A health care provider shall be compensated by the insurer for preparing reports documenting the need for treatments which exceed the workers' compensation supplemental medical fee schedule in accordance with the fee schedule for special reports. The health care provider may assess the cost of preparing a report to the insurer at no more than $20 per page up to a maximum of $75 for each report. [L 1992, c 123, pt of §1; am L 1997, c 251, §45; am L 1998, c 275, §§26, 27; am L 2000, c 138, §2; am L 2001, c 55, §20; am L 2006, c 198, §2; am L 2014, c 231, §3]

Case Notes

Fee schedule referenced in this section was intended to apply to medical services rendered as a result of motor vehicle accidents and paid by a no-fault insurer. 73 F. Supp. 2d 1189 (1999).

Independent medical examination (IME) provisions in subsection (b) do not apply to a record review performed in isolation, without other accompanying procedures necessary to complete an IME, particularly an in-person examination. 402 F. Supp. 2d 1157 (2005).

Plaintiff had not pled a claim under subsection (e), where plaintiff had not acknowledged that it received any partial payment from defendant insurance company. 685 F. Supp. 2d 1123 (2010).

This section (1993), which referred to the worker compensation treatment schedules adopted by the director of labor and industrial relations in the Hawaii administrative rules (HAR) as the schedules governing payments to no-fault benefit providers under motor vehicle insurance policies, must be construed as having generally incorporated the worker compensation fee schedules as they may have been adopted and amended from time to time; thus, after the director repealed HAR chapter 12-13 and adopted HAR chapter 12-15 in 1996, the latter became the fee schedule governing payments under this section. 105 H. 362, 98 P.3d 233 (2004).

An actual examination, physical or otherwise, is an essential component of an "independent medical examination" within the meaning of subsection (b); thus, where physician retained by insurer did not actually examine insured but instead limited the evaluation to a review of insured's records, physician did not perform an independent medical examination within the meaning of subsection (b) and insured did not violate subsection (b) when it declined to seek insured's consent in selecting physician to review insured's records. 119 H. 109, 194 P.3d 1071 (2008).

Insurer did not violate this section by selecting physician to review insured's record without insured's approval where, in the context of subsection (b), a "record reviewer" is not an independent medical examiner. 117 H. 465 (App.), 184 P.3d 780 (2008).

The circuit court did not err by failing to limit plaintiff's recovery for medical expenses to what plaintiff had already received in personal injury protection (PIP) benefits as this section limits the payment of PIP benefits to payments permitted under the workers' compensation schedules and does not preclude a plaintiff injured in an automobile accident from receiving special damages beyond what plaintiff received in PIP benefits. 124 H. 236 (App.), 240 P.3d 899 (2010).

Based on the clarification provided by Act 198, L 2006 and its legislative history, insured had standing and was a real party in interest who was entitled to pursue insured's administrative action which challenged insurer's refusal to pay insured's medical provider for acupuncture treatments provided to insured. 124 H. 415 (App.), 245 P.3d 488 (2011).

Cited: 732 F. Supp. 2d 1107 (2010).