THE YEAR OF THE ADJUSTER ...
Editor's Note: Preparing this first issue of 2013 made me realize how much new information awaits the workers' comp claims adjuster. New York is improving medical treatment guidelines, Arizona employers are getting tougher on opiods, and California is dealing with wholesale changes.
Who thinks workers' comp is same old-same old? Not this year. Not for adjusters.
- Rob McCarthy, Newsletter Editor
WHAT TO DO IF YOU'RE AUDITED FOR MCLEs
(This article is reprinted with permission from the December California Bar Journal.)
With the California State Bar stepping up its efforts to ensure attorneys are meeting their continuing education requirements, experts offer a number of tips to avoid getting in trouble – and prevent problems from ballooning in the event of an audit.
Last year, the bar audited 635 lawyers chosen at random – 1 percent of attorneys whose Minimum Continuing Legal Education (MCLE) requirements were due. This year's audit will be broader with the bar planning to look at a 5-percent sample, or roughly 3,000 to 4,000 lawyers.
Discipline defense attorneys who represent lawyers in State Bar Court agree that the best tactic, short of completing your MCLE requirements in the first place, is honesty.
“If you haven't done it, be straight with them,” said Jonathan Arons, a San Francisco-based legal ethics attorney. Lying to the bar can give the agency the impression that you are also willing to lie to clients, he said.
“You lie, you are going to get into more trouble,” said Arons, who also cautions against ignoring an audit notice.
Susan Margolis of Margolis & Margolis in Los Angeles agreed, noting that while meeting the MCLE requirements might seem inconvenient, it pales in comparison to a discipline proceeding.
Failing to fulfill education requirements can result in an administrative suspension, but lying about having done so could lead to a much more damaging moral turpitude charge, Margolis said.
“One ends up on your record as discipline, where the other doesn't,” she said.
Of the 600-plus lawyers selected for last year's audit, 98 were found not in compliance. Twenty four are facing potential discipline for falsely reporting they had met their requirements, and five were suspended for failing to respond to the audit.
The State Bar requires active attorneys, with some exceptions, to complete 25 hours of continuing education every three years including at least four hours of legal ethics, one hour of elimination of bias in the legal profession and one hour of prevention, detection and treatment of substance abuse or mental illness.
The bar plans to send out letters for this year's audit in July. Those selected will need fill out an online MCLE compliance log and submit actual certificates of attendance, either by mail or email. For more information about the MCLE requirements, visit the State Bar's MCLE web page (calbar.org) or call the Member Services Center at 1-888-800-3400.
N.Y. REVISES TREATMENT GUIDELINES
The chairman of the New York Workers' Compensation Board announced that improvements to the treatment guidelines will take effect on March 1. State-sponsored training is now available.
.
The free, online training courses are hosted at the board's website: www.web.ny.gov.
WCB Chair Robert Beloten issued an bulletin in which he suggests that anyone who completed coursework before mid-January 2013 should re-take the trainings for 2013 Medical Treatment Guidelines Update Overview, Carpal Tunnel Syndrome Guidelines, and Pre-Treatment Forms and Processes if applicable.
OUR AWARDS CEREMONY WINNERS ...
The photos are in from our first Workers' Compensation Holiday Educational Program and Awards Reception. I will share more in future newsletter issues, but here were three of our VIPs who received industry awards for their dedication to delivering and receiving workers' comp continuing education.
Dr. Satish Kadaba
Judge Paige Levy
That's WorkCompCentral President Dave DePaolo presenting Judge Levy's award.
2 REASONS TO JOIN US FEB. 23 IN OAKLAND
Our seminar travel team will return to Mills College on Saturday, Feb. 23 for side-by-side continuing-education live seminars about SB 863 and your workers' comp practice. One session is for attorneys; the other is for psyche qualified medical evaluators.
Both classes begin at 9 a.m. in the Lokey Graduate School of Business.
"How SB863 & The New Regs Will Work; What Changed and What Didn't" features three judges from Northern California talking about new law, new rules, and new practices. This is a Minimum Continuing Legal Education program. Six CEUs are available with California Bar and Claims Professionals. Paralegals and hearing representatives should plan to attend. One of the presenters plans to talk about "SB 863 Traps for the Unwary." Need more detail?
The medical-legal education seminar is titled, "Rateable Psyche Reports, Part II: Causation and Apportionment." Dr. Julie Armstrong, Psy.D and a California Qualified Medical Evaluator will explore the legal difference between causation and apportionment, terms that trip up many QMEs.
This six-hour report-writing seminar is the followup to a training Dr. Armstrong delivered in Oakland and Southern California in 2012. The class activities include group work identifying causation and apportionment issues that arise in workers' comp claims. Psyche in comp is always interesting.
Six QME credit hours are available for attending.
Six QME credit hours are available for attending.
I brought back this quiz from 2012 because of the considerable changes in California workers' comp law. The quiz about SB 863 gets progressively harder with each item. Good luck!
SB 863: ______________________________________________
IMR: _______________________________________________
IBR: _______________________________________________
IBR1: _______________________________________________
1/1/14: _______________________________________________
SJDB: ______________________________________________
EOR: ______________________________________________
$150: ______________________________________________
PQME: ______________________________________________
$10,000 ______________________________________________
BONUS:
LC 4903.6: ______________________________________________
LC 4600(c): ____________________________________________
ANSWERS:
SB 863: ______________________________________________
IMR: _______________________________________________
IBR: _______________________________________________
IBR1: _______________________________________________
1/1/14: _______________________________________________
SJDB: ______________________________________________
EOR: ______________________________________________
$150: ______________________________________________
PQME: ______________________________________________
$10,000 ______________________________________________
BONUS:
LC 4903.6: ______________________________________________
LC 4600(c): ____________________________________________
ANSWERS:
Senate Bill 863 (reform package); Independent Medical Review; Independent Bill Review; DWC form to Request IBR; date Medical Provider Network requirements take effect; Supplemental Job Displacement Benefit; Explanation of Review of a medical bill charge by the employer; cost of the lien filing fee; Panel Qualified Medical Evaluator; the maximum death benefit as of 1/1/13; 4903.6 puts filing restrictions on liens; 4600(c) says chiropractor as primary treater ends at 24 visits.
WEBINAR: ABUSE TRENDS WITH RX MEDICATIONS
INDUSTRY EVENTS CALENDAR
Jan. 24-26: California Applicants' Attorneys Association Winter Conference, San Diego, Calif.
Jan. 24: Southern California Professionals in Workers' Comp Happy Hour Meet & Greet, Orange, Calif.
Feb. 3: PARMA Conference, Rancho Mirage, Calif.
Feb. 27-28: WCRI's Annual Issues & Research Conference, Boston
Feb. 28 - March 1: California DWC Educational Conference, Los Angeles
March 2: The Biggest, Baddest Lien Seminar Yet, Pomona, CA
March 4-5: California DWC Education Conference, Oakland
March 11-12: Illinois Workers' Comp Forum, Chicago
March 14-15: Calif. Self-Insurers Meeting & Educational Conference, Disneyland Hotel, Anaheim
Looking for an educational event in your area? Have an event to announce? Look here.
CONGRESS PASSES, PRESIDENT SIGNS SMART ACT
By Michelle A. Allan, Esq.
By Michelle A. Allan, Esq.
and Christina Horton Duty, Esq.
Now that President Obama has signed the SMART Act, Medicare compliance practitioners can start to ponder the potential and practical impact this bill’s passing will have on their day-to-day work. A point-by-point analysis of the bill shows that the effects may be varying and in fact may show that even prior to its passage, the SMART Act has already started to revolutionize the Medicare conditional payment process.
As a brief point of history, the SMART Act was introduced into Congress in March 2011. The industry at that time was in dire need of conditional payment reform. It was not unusual for the MSPRC to take an excess of twelve months to generate a simple conditional payment letter. The insurance industry was willing to reimburse Medicare for conditional payments, but Medicare’s unreasonable delays were frustrating the parties, slowing or destroying settlements and creating uncertainty as to whether additional monies would require post settlement reimbursement. That June, The United States House of Representatives Subcommittee on Oversight and Investigations, Committee on Energy and Commerce held a hearing on “Protecting Medicare with Improvements to the Secondary Payer Regime.” At this hearing, the lengthy and complicated process of obtaining conditional payment information from the MSPRC and the lack of an ability to get a timely response regarding what the parties to a settlement may owe for final payment were just a few of the topics discussed. Medicare was essentially lambasted for procedural failures and lack of accountability.
Following both the SMART Act’s introduction and the above-mentioned hearing, the MSPRC made several changes to its processes. First, the MSPRC created The Medicare Secondary Payer Recovery Portal, a tool that beneficiaries, attorneys, insurers and TPAs could use to submit pertinent documents, request conditional payment information, dispute claims included in a conditional payment letter, and submit case settlement information. Second, a Self-Service Information Line was established where once a claim is reported to the MSPRC and a rights and responsibilities letter generated, a party can call the line to get Demand and Conditional payment amounts, as well as the dates of those letters without having to speak to a customer service representative. Third, a fixed percentage option for calculating the repayment amount was also introduced for use in certain liability and self insurance cases. Finally, the MSPRC implemented a Self Calculated Final Conditional Payment Amount option, whereby plaintiffs in liability cases meeting specific criteria could calculate the amount of repayment they believed to be owed (although in doing so the parties would give up a right of appeal). Many of the points of the SMART Act intersect with the steps already taken by the MSPRC, and an analysis of the effects of the SMART Act must be performed under this purview.
So what about its future impact? The Act first intends to establish a password-protected website to be used by the beneficiaries, their authorized families or other representatives, and applicable plans with proper consent, to access conditional payment information and determine the final reimbursable amount prior to the date of settlement. Based upon the establishment of the web-based portal and the alternative methods for recalculating repayment amounts, it appears that the MSPRC has already tried to consider this objective. However, in order to comply with the tenants of the Act, the portal will certainly need to be expanded upon. The SMART Act does not identify any penalties should Medicare fail to provide conditional payment information within the proscribed timeframes. Unless the Secretary would establish specific consequences for failure to provide information in a timely manner, further action may be necessary to enforce this area of the SMART Act.
Second, the Act intends to establish new processes by which an individual can both address discrepancies with the final reimbursable amount, and to establish the right to an appeal and an appeal process regarding the recovery of conditional payments from an applicable plan. This point of the Act has not yet been addressed by the MSPRC, and so the implementation of the Act will be the first to create these processes. Currently, parties have the opportunity to dispute a conditional payment amount, and appeal a final demand amount with the MSPRC. The first step in current conditional payment appeals involves a written request explaining why the amount is incorrect. This must be done within 120 calendar days from the date a party receives notification of the initial determination. While the MSPRC may issue a letter altering the conditional payment amount in favor of the appellant, there is little formality to this process and, at least in the past, has been questionable accountability on the MSPRC if they fail to respond. If the MSPRC disagrees with a written request to appeal a conditional payment amount, the matter can be taken to an independent contractor for review. This step is considered the Qualified Independent Contractor (QIC) review. The MSPRC may also refer to this process as “reconsideration.” A request for this review must be filed within 180 calendar days from the date the party receives a response from the first step.
According to 42 C.F.R § 405.900 et.seq., there are five levels of appeal afforded to Medicare providers and suppliers. If the Secretary were to adopt the uniform Medicare Part A and B appeals processes found within this regulation, a third level of appellate review would occur before an Administrative Law Judge. Additional appellate review could consist of an appeal before the Medicare Appeals Council and then possibly review in a Federal District Court. Whether the appellate procedures referenced in the SMART Act will be consistent with other existing Medicare procedures is yet to be determined.
Third, the Act states that mandatory penalties for Section 111 noncompliance will now become discretionary, rather than mandatory. The Act establishes a procedure for the Secretary to collect proposals to determine in what circumstances penalties will be levied. After consideration of the proposals, the Secretary will issue final rules regarding these penalties. It is likely that these proposals will include punishment for blatant lack of effort to comply with reporting guidelines and fraudulent reporting practices. Perhaps reporting entities demonstrating a good faith effort to comply will be warned rather than penalized for claims that “fall through the cracks,” so to speak. The discretion afforded under the SMART Act may possibly allow for the presentation of evidence, such as documented reporting policies and procedures implemented by a responsible reporting entity, as well as a demonstrated history of compliance efforts before Medicare would automatically slap the entity with the $1,000 per day per claim fine. As to the exact situations subject to penalties, we will have to wait and see what the Secretary decides.
Fourth, the Act proposes to modify reporting rules to eliminate the requirement of the use of Social Security account numbers or health identification claim numbers. The Act states that within a set period of time (although extensions may be given upon cause) the Secretary must modify the reporting requirements so that Social Security numbers or health identification numbers will not have to be used. This is perhaps the most challenging aspect of the Act to wrap one’s head around, as the creation of alternate identification numbers seems daunting at best. However, the concern regarding the security of beneficiaries’ personal information and identity is one of great importance and will hopefully be addressed with the passing of this Act.
Finally, the Act establishes a three year statute of limitations in which the United States may bring an action regarding payment owed under 43 U.S.C. 1395y after the date of the receipt of notice of a settlement, judgment, award or other payment. This statute of limitations has yet to be codified, and only had been established through case law, most notably through U.S. v. Stricker, et al., No. CV-09-BE-2423-E (N.D. Ala. Aug. 12, 2011).
Certainly, we, as an industry, still have much yet to gain from the SMART Act, and, its effect will forever change MSA practice. However, and thankfully so, the SMART Act has already effectuated significant change on conditional payment processes.
Now that President Obama has signed the SMART Act, Medicare compliance practitioners can start to ponder the potential and practical impact this bill’s passing will have on their day-to-day work. A point-by-point analysis of the bill shows that the effects may be varying and in fact may show that even prior to its passage, the SMART Act has already started to revolutionize the Medicare conditional payment process.
As a brief point of history, the SMART Act was introduced into Congress in March 2011. The industry at that time was in dire need of conditional payment reform. It was not unusual for the MSPRC to take an excess of twelve months to generate a simple conditional payment letter. The insurance industry was willing to reimburse Medicare for conditional payments, but Medicare’s unreasonable delays were frustrating the parties, slowing or destroying settlements and creating uncertainty as to whether additional monies would require post settlement reimbursement. That June, The United States House of Representatives Subcommittee on Oversight and Investigations, Committee on Energy and Commerce held a hearing on “Protecting Medicare with Improvements to the Secondary Payer Regime.” At this hearing, the lengthy and complicated process of obtaining conditional payment information from the MSPRC and the lack of an ability to get a timely response regarding what the parties to a settlement may owe for final payment were just a few of the topics discussed. Medicare was essentially lambasted for procedural failures and lack of accountability.
Following both the SMART Act’s introduction and the above-mentioned hearing, the MSPRC made several changes to its processes. First, the MSPRC created The Medicare Secondary Payer Recovery Portal, a tool that beneficiaries, attorneys, insurers and TPAs could use to submit pertinent documents, request conditional payment information, dispute claims included in a conditional payment letter, and submit case settlement information. Second, a Self-Service Information Line was established where once a claim is reported to the MSPRC and a rights and responsibilities letter generated, a party can call the line to get Demand and Conditional payment amounts, as well as the dates of those letters without having to speak to a customer service representative. Third, a fixed percentage option for calculating the repayment amount was also introduced for use in certain liability and self insurance cases. Finally, the MSPRC implemented a Self Calculated Final Conditional Payment Amount option, whereby plaintiffs in liability cases meeting specific criteria could calculate the amount of repayment they believed to be owed (although in doing so the parties would give up a right of appeal). Many of the points of the SMART Act intersect with the steps already taken by the MSPRC, and an analysis of the effects of the SMART Act must be performed under this purview.
So what about its future impact? The Act first intends to establish a password-protected website to be used by the beneficiaries, their authorized families or other representatives, and applicable plans with proper consent, to access conditional payment information and determine the final reimbursable amount prior to the date of settlement. Based upon the establishment of the web-based portal and the alternative methods for recalculating repayment amounts, it appears that the MSPRC has already tried to consider this objective. However, in order to comply with the tenants of the Act, the portal will certainly need to be expanded upon. The SMART Act does not identify any penalties should Medicare fail to provide conditional payment information within the proscribed timeframes. Unless the Secretary would establish specific consequences for failure to provide information in a timely manner, further action may be necessary to enforce this area of the SMART Act.
Second, the Act intends to establish new processes by which an individual can both address discrepancies with the final reimbursable amount, and to establish the right to an appeal and an appeal process regarding the recovery of conditional payments from an applicable plan. This point of the Act has not yet been addressed by the MSPRC, and so the implementation of the Act will be the first to create these processes. Currently, parties have the opportunity to dispute a conditional payment amount, and appeal a final demand amount with the MSPRC. The first step in current conditional payment appeals involves a written request explaining why the amount is incorrect. This must be done within 120 calendar days from the date a party receives notification of the initial determination. While the MSPRC may issue a letter altering the conditional payment amount in favor of the appellant, there is little formality to this process and, at least in the past, has been questionable accountability on the MSPRC if they fail to respond. If the MSPRC disagrees with a written request to appeal a conditional payment amount, the matter can be taken to an independent contractor for review. This step is considered the Qualified Independent Contractor (QIC) review. The MSPRC may also refer to this process as “reconsideration.” A request for this review must be filed within 180 calendar days from the date the party receives a response from the first step.
According to 42 C.F.R § 405.900 et.seq., there are five levels of appeal afforded to Medicare providers and suppliers. If the Secretary were to adopt the uniform Medicare Part A and B appeals processes found within this regulation, a third level of appellate review would occur before an Administrative Law Judge. Additional appellate review could consist of an appeal before the Medicare Appeals Council and then possibly review in a Federal District Court. Whether the appellate procedures referenced in the SMART Act will be consistent with other existing Medicare procedures is yet to be determined.
Third, the Act states that mandatory penalties for Section 111 noncompliance will now become discretionary, rather than mandatory. The Act establishes a procedure for the Secretary to collect proposals to determine in what circumstances penalties will be levied. After consideration of the proposals, the Secretary will issue final rules regarding these penalties. It is likely that these proposals will include punishment for blatant lack of effort to comply with reporting guidelines and fraudulent reporting practices. Perhaps reporting entities demonstrating a good faith effort to comply will be warned rather than penalized for claims that “fall through the cracks,” so to speak. The discretion afforded under the SMART Act may possibly allow for the presentation of evidence, such as documented reporting policies and procedures implemented by a responsible reporting entity, as well as a demonstrated history of compliance efforts before Medicare would automatically slap the entity with the $1,000 per day per claim fine. As to the exact situations subject to penalties, we will have to wait and see what the Secretary decides.
Fourth, the Act proposes to modify reporting rules to eliminate the requirement of the use of Social Security account numbers or health identification claim numbers. The Act states that within a set period of time (although extensions may be given upon cause) the Secretary must modify the reporting requirements so that Social Security numbers or health identification numbers will not have to be used. This is perhaps the most challenging aspect of the Act to wrap one’s head around, as the creation of alternate identification numbers seems daunting at best. However, the concern regarding the security of beneficiaries’ personal information and identity is one of great importance and will hopefully be addressed with the passing of this Act.
Finally, the Act establishes a three year statute of limitations in which the United States may bring an action regarding payment owed under 43 U.S.C. 1395y after the date of the receipt of notice of a settlement, judgment, award or other payment. This statute of limitations has yet to be codified, and only had been established through case law, most notably through U.S. v. Stricker, et al., No. CV-09-BE-2423-E (N.D. Ala. Aug. 12, 2011).
Certainly, we, as an industry, still have much yet to gain from the SMART Act, and, its effect will forever change MSA practice. However, and thankfully so, the SMART Act has already effectuated significant change on conditional payment processes.
(Michelle, a Member of Burns White, joined the Medicare Compliance Group in 2003. She can be reached at maallan@burnswhite.com. Christina is an Associate practicing on the Medicare Compliance team at Burns White. She can be reached at chduty@burnswhite.com.)
FINAL THOUGHTS
The Work Comp Institute (formerly Florida WCI) announced Aug. 18-21 as the dates for its 2013 annual conference in Orlando ... NCCI reports that the costs are rising on the latter stages of long-term claims ... Joe Paduda explains what NCCI's data means in his Jan. 22 (blog) ... Nevada is exploring whether telemedicine can improve delivery of care to injured workers ... and there's talk in Texas about arming investigators looking into "pill mills."
Thank you for reading this issue of the newsletter. You can connect with me on LinkedIn by searching for Rob McCarthy, Marketing Director at WorkCompCentral. LinkedIn is the business social marketing site used by many workers' professionals. You can write me at rob@workcompcentral.com
Thank you for reading this issue of the newsletter. You can connect with me on LinkedIn by searching for Rob McCarthy, Marketing Director at WorkCompCentral. LinkedIn is the business social marketing site used by many workers' professionals. You can write me at rob@workcompcentral.com
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