Insurance Commissioner Dave Jones has scheduled a November 16 hearing that will examine the 2013 rate filing of the WCIRB. These hearings have usually been held in San Francisco but in this instance the hearing is slated for Sacramento. Estimates of the projected savings and projected increased costs under SB 863 have been all over
Monthly Archives / November 2012
From a strictly workers’ compensation view, does it make a difference whether Obama or Romney is elected?
After all, workers’ comp is a state program. While there have been some advocates of federalizing workers’ comp, there is practically no political support for such a move in either party.
Obama’s career has largely not involved workers’ comp issues.
On the other hand, Romney does have a track record on workers’ comp as Governor of Massachussetts. Major Massachussetts workers’ comp reforms had been undertaken by a Republican predecessor, William Weld. From what I can determine, workers’ comp was not a major focus of Romney’s governorship though there were bills that he did sign.
For example, Romney signed 2 bills in 2004 focusing on misclassification of employees. One created a presumption that workers are employees. Another tightened penalties for misclassification.
In any event, the winner of the presidential race will not be dealing with California workers’ comp. But the race does has massive importance for workers comp, nevertheless.
Topping the list is the future of healthcare reform. Whether the Affordable Healthcare Act is repealed or is funded and implemented has long term
implications for workers’ comp. From individual worker concerns about getting medical treatment for preexisting conditions to systemic cost control and access questions, the ACA will have impact on the smaller state system.
Whether the ACA will bend the healthcare cost curve or just actually create expensive entitlements that increases overall health spending is something that may be debated.
A 2012 study by Paul Heaton of RAND is titled “The Impact of Health Care reform on Workers’ Compensation Medical Care”:
http://www.rand.org/content/dam/rand/pu … TR1216.pdf
Another area of possible impact is the issue of Medicare Set Asides. Two bills have been introduced to change the way CMS deals with set asides,
The SMART Act and the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012. For detailed speculation on how the election might affect MSA issues, see the website www.medicareinsights.com article “2012 Elections: How Will It Affect CMS, MSAs and the MSP?”:
The elephant in the room, of course, is the overall direction of the U.S. budget. Will the next administration undertake massive discretionary spending cuts in order to balance the budget? If so, programs such as OSHA and federal job retraining programs might take a major hit.
Will policy evolve so that federal programs are downsized or eliminated, with the states given more latitude to spend money as “block grants”?
How might this affect the safety net on which some injured workers have come to rely in getting help after workers’ comp benefits run out?
Whichever candidate is victorious, some of these budgetary issues will come to the fore.
And then there’s the issue of immigration reform, which always looms in the background. Currently the California Supreme Court is wrestling with a case, Salas Vs. Sierra Chemical, that will define what liability an employer may have for employment law violations where the worker is undocumented. Federal action on immigration law reform might make some of those issues moot.
Workers’comp doesn’t live in a vacuum. These are but some of the collateral issues that form the context in which our comp system operates.
The consequences are largely indirect.
But whoever is victorious in Tuesday’s election may have some very real impact on workers’ comp.
From a strictly workers’ compensation view, does it make a difference whether Obama or Romney is elected? After all, workers’ comp is a state program. While there have been some advocates of federalizing workers’ comp, there is practically no political support for such a move in either party. Obama’s career has largely not involved workers’
No sooner than baseball season is done doth November arrive.
And by mid-November we’ll see the DIR post proposed emergency regulations online. These will include “emergency regs” on lien fees, Independent Medical Review, Independent Bill Review and the Supplemental Job Displacement Benefit.
Speaking on a webinar held this week, Kathy Zeleski of the DWC noted that working groups have been convened on these topics and that working groups are considering comments posted on the dir.ca.gov website forum.
Zeleski noted that many of the comments have been negative but that rulemakers are also looking for positive feedback in getting things right.
I’ve not looked into who is on the various working groups. Nor am I aware whether that is information the DIR intends to withhold or whether that’s to be publicly disclosed so that stakeholders can discuss concerns directly with the working group participants.
In any event, with the administration under pressure to design regs that implement SB 863, we are at a critical stage.
Here, from the DIR website, is a list of some of the issues regarding IMR that are under consideration:
• Utilization Review Regulations: The Division is considering revising the existing utilization review (UR) regulations (California Code of Regulations, title 8, section 9792.6 et seq.), for example requiring the use of a request for authorization form, in order to improve the efficiency and effectiveness of the Independent Medical Review (IMR) process.
• Labor Code section 4610 was amended to provide that utilization review of a treatment recommendation is not required “while the employer is disputing liability for injury or treatment of the condition for which the treatment is recommended pursuant to Section 4062.” (Section 4610(g)(7).) The Division is considering an express regulation stating the circumstances by which UR can be initially deferred.
• The Division is considering requiring the employee to send/serve a copy of the IMR Application on the claims administrator.
• The IMR Application must state that the employee has the right to provide additional information after the IMR request is accepted. The Division is considering requiring the employee to provide additional documents concurrent with the claims administrator. (Employer documents, outlined in 4610.5(l) must be submitted 10 days after notice of IMR assignment.)
• The cost of IMR is borne by employers/claims administrators through a fee system; DWC must establish a “reasonable, per-case schedule” to the pay the costs of IMR. The Division is considering a monthly, aggregate bill instead of a per-case invoice system. (The aggregate bill would likely include an itemization of cases. Are there additional elements that should be included?)
• DWC is planning on contracting with one IMRO for the implementation of SB 863. The Division is considering contracting with additional IMROs once the system is operational.
• DWC is considering posting either searchable individual case summaries of IMRO decisions or a summary table with condensed information on its website.
• Implementing section 4062.2(c); changes to the represented QME process.
o Does the logic of Messele apply to add five days for service by mail?
o Is a regulation needed that expressly provides who goes first in the striking process?
• The QME 10 office limitation rule.
o The Divison will likely experience additional panel replacement requests that are the result of this change; are there any suggestions about handling these replacement panel requests?
• Should ML 103 Medical-Legal Code (8 C.C.R. § 9795) be modified to eliminate medical monitoring and issues of denial or modification of medical treatment following utilization review for dates of injury on or after 1/1/13?
On the issue of the lien filing fee, the working group has apparently been considering the following:
• Exempt v. non- exempt liens
o All non-exempt liens are filed electronically.
o All non-exempt lien fees and activation fees get paid electronically
o All non-exempt liens include a Proof Of Service and other documents required by the WCAB.
o All exempt liens filed in paper must also include an itemized statement of account. • New liens – post January 1, 2013
o New medical liens, medical legal liens, and costs filed on or after 1/1/2013 pay a $150.00 filing fee before they can file (or at the time of filing).
o New medical liens, medical legal liens, and costs filed on or after 1/1/2013 prove that they paid a filing fee with their DOR.
o New medical liens, medical legal liens, and costs filed on or after 1/1/2013 that are exempt will file an exemption affidavit with the lien or DOR.
• Existing liens – pre 1/1/2013
o Existing medical liens, medical legal liens and costs filed on or after 1/1/2013 pay a $100.00 activation fee before they file their DOR (or at the time that they file their DOR).
o Existing medical liens, medical legal liens and costs filed pre-1/1/2013 who get to a lien conference on someone else’s DOR pay a $100.00 activation fee before they get to court.
o Existing medical liens, medical legal liens and costs filed on or after 1/1/2013 that are exempt or already paid an un-refunded fee in 2004 or 2005 will file an exemption affidavit with the lien or DOR.
o Existing medical liens, medical legal liens and costs filed pre-1/1/2013 which are not exempt and have not paid the $100.00 activation fee by 1/1/2014 are dismissed by operation of law.
o If a judge orders a filing fee or an activation fee reimbursement based on the specific criteria in the statute, the defendant will reimburse the lien filing fee or activation fee. A false or incomplete affidavit may lead to sanctions.
• Division Considerations
o For an eform filed lien or DOR, the eform filer pays electronically first and then
submits the transaction code or exemption affidavit with their electronic filing.
o For a Jet filed lien or DOR, the Jet filer pays electronically as part of their Jet submission or submits the transaction code or exemption affidavit with their electronic filing.
o For a lien conference appearance, with no lien or DOR filed by that party after the statute, the party will bring that transaction code to the conference for the judge to verify.
According to the DIR website, issues being discussed by the working group regarding Independent Bill Review include the following:
Issues for Discussion
• What is the current volume of electronic billing in the workers’ compensation system?(4603.3(b).)
• Are there differences between the electronic billing rules and the paper billing rules that should be taken into account in the Independent Billing Review (IBR) regulations.
o The Division is considering deferring an electronic IBR until 7/2013 (or beyond).
• The Division is considering regulations for consolidating or aggregating bill review requests.
o If consolidation is instituted, what factors should be considered in the consolidation? o Should there be a graduated schedule for consolidating small bills if bills are consolidated?
• How does the second bill review process fit with the reconsideration processes already in place?
o What alterations are necessary for the existing system? What additional issues need to be considered?
o What information should the second review form contain? (4622(b) (1).) • Changes necessary, if any, to the required explanation of benefit?
o Should more information be required? (4622(a) (1) “If the employee, within the 60 day period, contests the reasonableness and necessity for incurring the fees, service, and expenses using the explanation of review required by Section 4603.3. )
o If so, what additional information should be included EOB? • Liability issues can stop IBR. (4603.6 (a).)
o When in the process are liability objections raised now? Is this the earliest that the issue of liability could be raised?
o On the M/L side, does 4622(c) apply where there is an objection to the exam on other grounds and other procedures have been instituted, for example and appeal under section 5300 or an objection to the M/L exam? (139.3, for example.)
• Acquisition of additional information by IBRO. (4603.6 (e).)
o Should all contact be in writing?
o If not, under what circumstances is oral communication with a party allowed, if at all? • What information should be in the determination issued by the IBRO? (4603.6 (e).)
Issues being considered regarding Supplemental Job Displacement Benefits include the following:
o Physician form: The claims administrator must provide the physician with a job description of the employee’s regular work, proposed modified work, proposed alternative work so that the physician can evaluate and describe in the form whether work capacities and activity restrictions resulting from the injury are compatible with the physical requirements set forth in the job description. What information/data fields should be included in the form? Should the form include the job description or should that be provided on a document completed by the employer? Should the old RU-91 job description form (attached) be utilized? Should the Physician form be a mandatory attachment to a medical report to be forwarded to the claims administrator? At what point should the form be provided by the claims administrator to the physician? Should the functional capacity evaluation in Form PR-4 be eliminated? Should the form list restrictions narrowly tailored to the job or be more generic functional restrictions? Should the Physician form be modeled after the old RU-90 Treating Physician’s Report of Disability Status form (attached)?
o Offer of work: An employee is not entitled to the voucher if the employer makes an offer of regular, modified, or alternative work no later than 60 days after receipt of a mandatory work restriction form finding that disability from all conditions are P & S and the injury has caused PD. Should there be a regulations requiring a specific manner to evidence receipt (proof of service)? What changes should be made to the existing notice of offer of regular, modified or alternative work?
o Voucher: What information should be included on the voucher itself? Should it have a proof of service?
o What new definitions are needed?
o Should the division list counselors on its web page?
In addition to these items, a working group has been convened on home health care fee schedule regs which must go into effect by July 1,2013.
Items listed “for discussion” on the DIR website include the following:
• Which home health care services/providers are not covered by a Medicare fee schedule and should be included in a home health care service fee schedule under Labor Code §5307.8?
• Should the Division adopt a mandatory time sheet for providers, and if so, how detailed should it be to document work performed?
• What should the Division include in “requirements for service providers” referenced in LC §5307.8?
• SB 863 requires the use of In Home Supportive Services rules for maximum hours of services. Under the In Home Supportive Services program, the needs assessment to determine the hours of service and type of service is conducted by a social worker. SB 863 requires that a physician prescribe the home health care services. The Division is considering the following procedure: The physician would refer the injured worker for a needs assessment by a nurse case manager or licensed clinical social worker. Based on the needs assessment using the IHSS criteria, the nurse case manager or licensed clinical social worker would recommend the type and quantity of services needed. The physician will review the recommendations and issue a prescription.
Another set of regs that will go through “regular rulemaking” are regs on predesignation and the statute that limits a chiropractor as PTP after 24 sessions. Those are not due til July 1,2013. According to the DIR website, these are issues on which the working group is focusing:
• The Division is considering requiring the employee to identify for their employer the source of the health care coverage for nonoccupational injuries or illnesses. (This, for example, can be accomplished by amending the now optional predesignation form (DWC Form 9783) and making it mandatory.
• 24-visit Chiropractic Cap/Treating Physician:
• What should the enforcement mechanism be for removing a chiropractor as treating physician after the 24 visit cap is reached? Should a petition be filed the WCAB alleging that chiropractic treatment is no longer permitted or should a petition be filed with the Administrative Director under California Code of Regulations, title 8, section 9786? (Consider the respective timeframes in which relief could be granted).
• Should the regulations define what constitutes a “chiropractic visit” that counts toward the 24-visit cap. Does a “visit” mean one where chiropractic treatment is provided? For example, does a physical medicine treatment prescribed by a chiropractor but provided by someone else (an acupuncturist, massage therapist, etc.) count? What about a purely medical management visit when the chiropractor is the Primary Treating Physician, but treatment is being provided by a secondary physician such as an orthopedist or a psychiatrist?
Looking at all of this, it is apparent that the DIR/DWC and stakeholders participating in the working groups are well aware of the ambiguity in many sections of SB 863.
Now would be the time for anyone with strong opinions to weigh in on the content of these regs. After all, some of the fundamental aspects of the California comp system are being reinvented, and details matter.
We may be as little as 2 weeks away from the unveiling of the emergency regs.
To see the summary of public comments that were made at October 2, 2012 meetings in Oakland, look here:
According to the DIR website, written comments regarding DWC rulemaking can be e-mailed to firstname.lastname@example.org. Here is a link to the web page that contains that e-mail address:
No sooner than baseball season is done doth November arrive. And by mid-November we’ll see the DIR post proposed emergency regulations online. These will include “emergency regs” on lien fees, Independent Medical Review, Independent Bill Review and the Supplemental Job Displacement Benefit. Speaking on a webinar held this week, Kathy Zeleski of the DWC noted