Department of Consumer and Business Services,
Workers’ Compensation Division Chapter 436
Caption: Payment for orthotic and
prosthetic services under the workers’ compensation medical fee schedule.
Order No.: WCD 4-2011(Temp)
Filed with Sec. of
Certified to be
Effective: 7-5-11 thru 12-31-11
Rules Amended: 436-009-0080
Subject: This temporary rule amendment reverses the April 1,
2011 changes to OAR 436-009-0080, affecting maximum payments for orthotic and
prosthetic services. Effective April 1, this rule limited payment in certain cases to “140 percent of the actual cost to the provider for
the item as documented on a receipt of sale.” After consulting with
stakeholders, the agency has determined that payment based on material and
device costs is inadequate for orthotic and prosthetic services, and has
amended the relevant rule to require payment at the provider’s usual rate,
unless otherwise provided by a contract.
Rules Coordinator: Fred Bruyns—(503) 947-7717
Durable Medical Equipment and
(1) Durable medical equipment (DME) is equipment that
is primarily and customarily used to serve a medical purpose, can withstand
repeated use, could normally be rented and used by successive patients, is
appropriate for use in the home, and not generally useful to a person in the
absence of an illness or injury. For example: Transcutaneous Electrical Nerve
Stimulation (TENS), MicroCurrent Electrical Nerve Stimulation (MENS), home
traction devices, heating pads, reusable hot/cold packs, etc. Unless otherwise
provided by contract, fees for durable medical equipment shall be paid as
(a) The insurer shall pay for the purchase of all
compensable DME that are ordered and approved by the physician, at 85 percent
of the manufacturer’s suggested retail price (MSRP). If no MSRP is available or
the provider can demonstrate that 85 percent of the MSRP is less than 140
percent of the actual cost to the provider, the insurer must pay the provider
140 percent of the actual cost to the provider for the item as documented on a
receipt of sale.
(b) The DME provider is entitled to payment for any
labor and reasonable expenses directly related to any subsequent modifications
other than those performed at the time of purchase, or repairs. A subsequent
modification is one done other than as a part of the initial set-up at the time
of purchase. The insurer shall pay for labor at the provider’s usual rate.
(c) The provider may offer a service agreement at an
(d) Rental of all compensable DME shall be billed at
the provider’s usual rate. Within 90 days of the beginning of the rental, the
insurer may purchase the DME or device at the fee provided in this rule, with a
credit for rental paid up to 2 months.
(2) A prosthetic is an artificial substitute for a
missing body part or any device aiding performance of a natural function. For
example: hearing aids, eye glasses, crutches, wheelchairs, scooters, artificial
limbs, etc. Notwithstanding OAR 436-009-0040, unless otherwise provided by
contract, the insurer must pay the fee for a prosthetic at the provider’s usual
(3)(a) Testing for hearing aids must be done by a
licensed audiologist or an otolaryngologist.
(b) Based on current technology, the preferred types of
hearing aids for most workers are programmable BTE, ITE, and CIC multi channel.
Any other types of hearing aids needed for medical conditions will be
considered based on justification from the attending physician or authorized
(c) Without approval from the insurer or director, the
payment for hearing aids may not exceed $5000 for a pair of hearing aids, or
$2500 for a single hearing aid.
(4) An orthosis is an orthopedic appliance or apparatus
used to support, align, prevent or correct deformities, or to improve the
function of a moveable body part. For example: brace, splint, shoe insert or
modification, etc. Notwithstanding OAR 436-009-0040, unless otherwise provided
by contract, the insurer must pay the fee for an orthosis at the provider’s
(5) Medical supplies are materials that may be reused multiple
times by the same person, but a single supply is not intended to be used by
more than one person, including, but not limited to incontinent pads,
catheters, bandages, elastic stockings, irrigating kits, sheets, and bags.
Unless otherwise provided by contract, the insurer must pay 80 percent of the
provider’s usual rate for medical supplies.
(6) The worker may select the service provider, except
for claims enrolled in a managed care organization (MCO) when service providers
are specified by the MCO contract.
(7) Except as provided in subsection (2)(c) of this
rule, this rule does not apply to a worker’s direct purchase of DME and medical
supplies, and does not limit a worker’s right to reimbursement for actual
out-of-pocket expenses under OAR 436-009-0025.
(8) DME, medical supplies and other devices dispensed
by a hospital (inpatient or outpatient) shall be billed and paid according to
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.248
Hist.: WCD 9-1999, f. 5-27-99, cert. ef. 7-1-99;
WCD 2-2001, f. 3-8-01, cert. ef.4-1-01; WCD 3-2002,
f. 2-25-02 cert. ef.4-1-02; WCD 14-2003(Temp), f.
12-15-03, cert. ef.1-1-04 thru 6-28-04; WCD 3-2004,
f. 3-5-04 cert. ef.4-1-04; WCD 2-2005, f. 3-24-05,
cert. ef.4-1-05; WCD 3-2006, f. 3-14-06, cert. ef.4-1-06; WCD 2-2007, f. 5-23-07, cert. ef.7-1-07; WCD 5-2008, f. 12-15-08, cert. ef.1-1-09; WCD 1-2011, f. 3-1-11, cert. ef.4-1-11;
WCD 4-2011(Temp) f. 6-30-11, cert. ef. 7-5-11 thru 12-31-11
Notes 1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.