Tag Archives: mmi

20 Work Comp Issues to Watch in 2016

In an “Out Front Ideas with Kimberly and Mark” webinar broadcast on Jan. 12, 2016, we discussed our thoughts around the issues that the workers’ compensation industry should have on its radar for 2016. What follows is a summary of 20 issues that we expect to affect our industry this year.

  1. Election Cycle

Everyone knows that this is a presidential election year. But election time also means governor and insurance commissioner seats are available. State insurance commissioners are elected in 11 states and appointed in the other 39. In the coming election, there are 12 gubernatorial seats and five insurance commissioner positions to be decided. The workers’ compensation industry needs to be paying attention to these elections because the insurance commissioners can have significant influence over procedures, policies and enforcement in their states.

  1. Viability of Workers’ Compensation

It is important for all of us to consider the continuing viability of workers’ compensation. Is the grand bargain still doing what it was established to do? There is a growing debate around the gaps and shortcomings of workers’ compensation. Our industry needs to engage in a critical analysis of these issues.

  1. Federalization

In October 2015, 10 high-ranking Democrats on key Senate and House committees sent a letter to the Department of Labor asking it to conduct a critical review of state workers’ compensation systems. Some are concerned that this is a sign we could see federal government involvement in state workers’ compensation systems.

In some ways, the federal government is already involved in workers’ compensation. For instance, OSHA has a tremendous impact on workers’ compensation. Medicare Secondary Payer Compliance is another example of federal law affecting the system.

Recent criticisms of workers’ compensation have focused on the vast benefit differences between states. There is also growing concern that workers who are permanently disabled are pushed off workers’ compensation and onto Social Security disability. With Social Security raising solvency concern, lawmakers will be receptive to discussions on how to keep workers’ compensation from shifting long-term claims to the federal government.

This is a substantial issue to watch in the coming years, and there is a significant chance that the federal government will suggest minimum benefit recommendations to the states at some point. This could especially affect states that have hard caps on the total amount of indemnity benefits that an injured worker can receive.

  1. Affordable Care Act

The Affordable Care Act (ACA) will continue to be a subject of discussion in 2016.

The implementation date of the high-cost, employer-sponsored health plans tax, dubbed the “Cadillac tax,” was recently delayed from 2018 to 2020. It imposes an excise tax of 40% on health plans whose value is more than $10,200 for individual coverage and $27,500 for a family. Regardless of the delay, employer-sponsored benefit plans have evolved over the past five years in preparation to avoid the additional tax. The formerly rich benefit plans were dropped in an effort to provide benefit plans within ACA’s requirements and often replaced by higher-deducible plans with reduced benefits.

NCCI and WCRI have both conducted studies on how the ACA has affected workers’ compensation. Results have not conclusively tied treatment delays or actual cost shifting to workers’ compensation. We believe continuing studies by these organizations and others are important to evaluate the impact of ACA on workers’ compensation.

Other issues that should be monitored include consolidation of health systems, providers and insurers. In 2015, there was more than $700 billion of consolidation in the healthcare marketplace. This is driven, in part, by the ACA, because scale and size assist providers with efficiency, purchasing power and the need to provide a continuum of care.

Another issue where the ACA could affect workers’ compensation is changing reimbursement models. Medicare is looking to shift into a value-based reimbursement model, and many state fee schedules are based on Medicare rates.

Although not specifically related to ACA, a healthcare topic to keep an eye on is drug pricing. Drug pricing will continue to be a topic within the media, PBMs, employer benefit managers, health plan experts and the political arena. Prescription drug pricing increased more than 10% in 2015, and this trend is expected to continue. This has an impact on the cost of workers’ compensation claims.

  1. Holes in Workers’ Compensation

What many people do not realize is that workers’ compensation protections are not available to all workers within the U.S. In 14 states, smaller employers with five employees or fewer do not have to secure coverage. In 17 states, there is no legal requirement for coverage of agricultural workers. Half of the states do not require coverage for domestic workers, and five states specifically exclude coverage for these employees. There are also states that create exceptions for certain types of workers, such as state employees in Alabama. Finally, we have seen from court cases around the country that occupational diseases that take several years to develop are often barred by the statute of limitations, leaving workers with no recourse for benefits.

These holes are yet one more thing that critics point to when talking about the inadequacy of workers’ compensation. The occupational disease issue is particularly concerning because it is very easy to question the fairness of barring a claim under the statute of limitations and, at the same time, denying the injured worker the ability to pursue a claim in civil court under the exclusive remedy protections of workers’ compensation. This is another area where we will not be surprised to see the federal government give recommendations.

  1. Blurred Lines Between Workers’ Compensation and Group Health

The employee health model is evolving. Employers are finding the need to provide a consistent healthcare experience for their workforce and plan members. Employers would like to find a model that provides both quality care and consistency for their employees, regardless of whether the need for treatment arises from a work injury or at home. Because a healthy workforce is a productive workforce, employers also feel that there is a need to tie health and productivity together.

We will continue to see health systems build accountable care organizations (ACO) and enter the health plan, insurance and risk-bearing arena with the goal of directly selling to and partnering with employers. ACOs are an attractive model for employers supporting a healthier workforce by extending the culture of health philosophy from work to the home for their employees and their families.

Mental health is a top driver for absence across employers and not simply a health cost concern. Mental healthcare should be as important as physical healthcare and is currently a focus of population health and employer programs. Employers are looking for healthcare models, which consider the person as a whole and offer consistent, engaging behavioral health and wellbeing programs for the workforce.

Workers’ compensation key stakeholders should be a part of the evolving health model discussions and early stage planning so as not to be left in the dark as health models change.

  1. Options to Workers’ Compensation

We all know that Texas has a unique system that allows employers to completely opt out of workers’ compensation benefits. The term “opt-out” refers only to the Texas system. Employers in Oklahoma have an option to workers’ compensation that allows them to develop a private benefit plan that replaces state-mandated workers’ compensation. It is this concept of an option that is looking to spread to other states. Bills on this issue will be reintroduced in Tennessee and South Carolina this year, and other states have begun preliminary discussions.

Some employers feel that they can provide better benefits to their injured workers at a lower cost with these option programs. Others are concerned that these programs lack the controls and oversight of state workers’ compensation. One thing is certain: This issue is not going away any time soon. Perhaps these discussions around options to workers’ compensation can lead to discussions about workers’ compensation reform, including employer medical control, increasing thresholds of compensability and reducing the bureaucracy of the workers’ comp system.

  1. Evolving Claims Model

There are significant discussions around the evolving claims model. The industry realizes that we need to focus more on the injured worker as a consumer. The model needs to focus more on advocacy, but what does this really mean? Should there be a person who assists the injured worker in understanding the claims process, or is there a need to change the culture of our industry to be less adversarial?

Other parts of the evolving model involve who actually touches the claim. Are there elements that could be automated? Should there be more specialization with different individuals performing different tasks instead of the current model where the claims adjuster is a generalist performing multiple tasks across multiple jurisdictions?

The claim handling model also needs to adapt to new technology and the way in which different generations want communication. Some injured workers prefer text instead of e-mail or phone calls. Some like to access claims information in an app on their mobile device or simply, 24/7, as they want it that moment. The model must evolve to take full advantage of new technology and communication methods.

The March 15 “Out Front Ideas with Kimberly and Mark” webinar will focus on the evolving claims model and include guests who are passionate about an advocacy-based design.

  1. Florida Supreme Court

Over the last two years, four cases challenging the constitutionality of various aspects of the Florida workers’ compensation statutes have made it to the state’s Supreme Court. The first of those cases, Padgett, ended in late December when the Supreme Court declined to review it. That case had been thrown out on procedural grounds during the appeal process, so the Court of Appeals and Supreme Court never addressed the underlying constitutional challenge.

There are three cases still to be decided:

  • Westphal, which deals with caps on temporary disability benefits.
  • Castellanos, which addresses limitations on attorney fees.
  • Stahl, which focuses on post MMI medical co-payments and the elimination of permanent partial disability payments.

The expectation is that the Florida Supreme Court will address all of these cases in 2016, but nobody knows when that will occur.

  1. Bureaucracy

Workers’ compensation is one of the most highly regulated lines of insurance, and regulators are increasingly aggressive in pursuing fines and penalties. Every form filed and every payment transaction is an opportunity for a penalty. EDI allows regulators to automate the fines and penalties. Some states perform retrospective audits on activity five to 10 years in the past. The IMR process in California adds administrative cost to claims without necessarily improving outcomes, and states with self-imposed penalties may be driving up the cost of doing business beyond the benefit of the penalty payment. Lobbying is becoming an increasingly important area for payers and service providers to consider.

The significant costs associated with the bureaucracy of workers’ compensation regulations are not improving the outcomes on claims. Most of the money collected from the fines and penalties is paid to the states. The programs may cover the operating costs of state workers’ compensation division and not be paid to the injured worker or medical provider.

This topic is an important issue to watch in 2016 and will be the topic of our Feb. 9 “Out Front Ideas with Kimberly and Mark” webinar.

  1. Regulatory Change

There are four states in particular that we should be keeping an eye on in terms of potential regulatory reforms in 2016:

New York

Employers in New York are continuing to push for additional workers’ compensation reforms to reduce their costs because the savings projected with the last round of reforms never fully materialized. Whether there is enough momentum to get a bill through this year remains to be seen, but the efforts are there.

Florida

In Florida, the situation is going to depend on what the state Supreme Court does with the cases mentioned earlier. If any of those cases punch holes in the constitutionality of the workers’ compensation law, then the legislature is going to need to address this. Again, this is a waiting game.

Illinois

Illinois Gov. Rauner has made it a priority to enact workers’ compensation reforms to reduce employer costs. But his efforts have been blocked by the state legislature, and there is a budget stalemate in the state. There has been much political back-and-forth on this budget and the workers’ compensation reforms. It remains to be seen if the governor has the political muscle to get his legislation passed.

California

Ever since the Schwarzenegger workers’ compensation reforms in 2004, and continuing with SB 863 passed by Gov. Brown, the California legislature has been trying to undermine these workers’ compensation reforms. Every year, multiple bills are passed by the legislature, and every year both Gov. Schwarzenegger and Gov. Brown have vetoed those bills. Gov. Brown is committed to preserving his workers’ compensation reforms, and there are three years left on his term. Once he is gone, there is concern about what could happen with workers’ compensation in California. But, for now, significant change is not expected.

  1. Talent Acquisition

Talent acquisition and retention is probably the biggest issue facing the entire insurance industry. Consider:

  • 25% of insurance industry workforce will retire by 2018 (McKinsey)
  • There are 2.3 million workers in the insurance industry. More than 1 million will retire in the next 10 years, and 400,000 positions will be left open by 2020 (Deloitte and Jackson Group)
  • Workers over the age of 45 represent 48% of the insurance workforce

Are we doing enough with colleges to show the career opportunities in the insurance industry? Although more colleges and universities are offering risk management programs, the reality is that there are very few of these programs nationwide. Our industry needs to support these programs with both grants and internship opportunities.

In workers’ compensation, we need to be looking at the role of the examiner. Are there tasks that we could automate and reduce workload need? Millennials say they want to work with purpose. The role of the claims adjuster is to assist injured workers in their recovery. Could we be doing more to highlight the positive aspects of the claims adjuster role to make it more attractive to millennials?

We also need to be looking at ways to be flexible with work schedules and at whether someone is tied to the home office or able to work from a remote location. Finally, we need to continue to focus on promoting diversity and inclusion within our workforce.

In May, we will be doing an “Out Front Ideas with Kimberly and Mark” webinar devoted to this topic.

  1. Market Conditions

You cannot forecast the coming year for the workers’ compensation industry without talking about rates. Recently, for the first time in years, the Fed increased interest rates. This is good news, but the change is still insignificant and will not have a material impact on the workers’ comp industry. Because investment opportunities are limited for carriers, they continue to be very diligent with their underwriting. What does this mean for rates? Right now, the market is relatively stable. Accounts with good loss histories could see steady to slightly decreased rates, while accounts with poor loss histories will likely see slight increases. Overall, significant rate changes across the nation are not expected in the coming year.

  1. Predictive Analytics

Predictive analytics have been a buzz word in our industry for a number of years. Most data models identify at-risk claims, which may benefit from additional intervention in terms of nurse case management or a more skilled adjuster. The goal of the intervention(s) is to change the trajectory of the claim, to do something different than in similar prior claims, so the result is improved over the past experience. Although most payers reflect having predictive analytics and a variety of models available, there are limited published results on the outcome and effectiveness. Watch in 2016 to see if organizations begin sharing outcomes as a way to market their business or provide industry thought leadership on what is working and should be considered to drive success.

There is a need to evolve predictive analytics and big data models so that some human tasks are automated. Instead of just identifying cases where intervention is necessary, we should also identify claims where minimal intervention is needed. This approach frees resources and allows attention on claims, which will benefit from the touch. Future claims models will benefit from analytics using learning models similar to IBM Watson-type smart analytics.

  1. OSHA

OSHA continues to be a challenge for employers. Going into 2016, OSHA has increased reporting and recordkeeping requirements. It is also increasing its focus on certain industries, including healthcare, and employers are seeing a significant increase in fines. This is an area that is constantly evolving.

Our April 5 “Out Front Ideas with Kimberly and Mark” webinar will focus on these continuing developments and discuss the continuing issues that employers should track.

  1. Utilization Review

There is industry buzz and sidebar conversations around utilization review (UR) and the current approach deployed by employers, payers and service providers. Physicians are asking more than ever how they can help streamline treatment requests, obtain decision outcomes electronically and more quickly and provide timely, appropriate care for patients.

Utilization review should ensure that injured workers receive appropriate care within the right setting and for the correct duration. But what is the right UR model? Should all treatment be subject to UR or select treatment requests? Is UR a process strictly addressing the request for treatment and medical documentation submitted against guidelines of care or collaborative with adjusters, providers and the injured workers? Are denials of care driving up litigation unnecessarily? Do utilization review referral triggers change if the physician providing care is part of a high-performance network or known to be a top-performing physician? These are questions being raised by industry veterans and newcomers alike and are likely worthy of a review and further dialogue.

In the consumer-driven health world where we find ourselves, there is greater interest from injured workers to understand treatment options and outcomes. If not a part of UR, is your case management or claim model providing medical treatment option education, inclusive of outcomes awareness? Transparency is becoming increasingly important to consumers.

  1. Exclusive Remedy

Plaintiff attorneys are always trying to find ways around the exclusive remedy protections of workers’ compensation, and these efforts are becoming increasingly successful. In early January 2016, the District Court of Appeals in California allowed an injured worker to pursue a civil claim against a utilization review provider because the provider failed to warn him about the potential risks of medication withdrawal.

More and more, judges are allowing such litigation to survive a motion to dismiss on summary judgement because of workers’ compensation exclusive remedy protections. This creates enormous costs for employers and carriers, which then must spend hundreds of thousands of dollars or more defending such lawsuits and face the risk of a jury award that could be worth millions. In addition, an employer’s liability award based on the “intentional actions” of the employer may have issues with insurance coverage. The entire industry should be paying close attention to this area of increased litigation around exclusive remedy.

  1. ICD-10

The ICD-10 medical classification came along last year with a lot of hype and a significant amount of work effort to update systems and train teams. There was concern that the new diagnosis codes would result in slowed claims processes and treatment decisions. Thus far, workers’ compensation key stakeholders report little to no impact from the change. This may be because states did not mandate the use of ICD-10 for workers’ compensation and most organizations continue to accept ICD-9. Bill review receipt to pay timeframes have not lengthened, and e-billing rejections did not increase, which were two areas to watch after the ICD-10 go-live.

In 2019, Medicare plans to roll out an incentive-based reimbursement model tied to patient outcomes (MACRA). The American Medical Association believes this will be a significant reimbursement change for physicians. Changes to Medicare reimbursement could impact workers’ compensation because some state fee schedules are Medicare based.

History has proven Medicare does not always follow through with what it says it is going to do in terms of changing reimbursement models, but the MACRA implementation is an issue worth monitoring.

  1. Marijuana

Thus far, New Mexico has been the only state allowing medical marijuana for treatment under workers’ compensation. But as the use of medical marijuana spreads, it is inevitable that we will see other states take on this issue. The answer is simple –if states put something in their statutes barring medical marijuana under workers’ compensation, then that solves the problems. Some medical marijuana states have already indicated that insurance is not responsible covering medical marijuana. State legislators and regulators can stop this before it becomes a legitimate problem.

The bigger issue is employment practice concerns. Many expect the federal government to reclassify marijuana as a Schedule 2 drug, possibly by the end of this current administration. Once that happens, it will no longer be an “illegal” drug. Employers are going to need to adapt and drug test for impairment rather than just testing the presence of the drug. Standards are going to need to be developed on what constitutes “impairment” with marijuana. The science needs to catch up with the realities of this new normal when it comes to marijuana in the U.S.

  1. On-Demand Economy

The on demand economy is creating new concerns about what constitutes an employee/employer relationship. Is an Uber driver an employee of Uber or an independent contractor? What about a repair person you hire through Angie’s List?

While the on-demand economy is a newer dynamic, determining what constitutes independent contractor vs. an employee has been a challenge for the workers’ compensation industry for many years. In July 2015, the Department of Labor issued an interpretive memorandum indicating that the DOL feels “most workers classified as independent contractors are employees under the Fair Labor Standards Act’s broad definitions.”

So perhaps the issue to watch here is not so much the on-demand economy, but instead whether we are going to see the Department of Labor push for fewer and fewer workers to be classified as independent contractors. This could have a significant impact on many industries as well as significantly changing the business model of services like Uber and Lyft.

The Best of Claims, the Worst of Claims

It was the best of claims; it was the worst of claims… the age of wisdom, the age of foolishness… belief vs. incredulity… hope vs. despair… etc., etc. The iconic opening paragraph from Charles Dickens’ A Tale of Two Cities makes one realize such conflicts do exist in the same space and time, albeit through different personal perspectives. Such is the reality in workers’ comp claims, where the single biggest factor in outcome is often the claimant’s attitude.

A client claim-audit project offers a jarring comparison between two claim files from different parts of the country. The claims exemplify how little control we actually have over an employee’s attitude in the disability management process, and show how vastly different the human tolls can be.

Both claims were in excess of 10 years old. Both involved exaggerated and evolving symptoms with eventual narcotic prescriptions for “pain management.” At approximately the same time, however, each took a different path.

One claimant found her own reasons and will-power to end the years she spent on prescribed pain-killers. She entered a drug treatment process on her own, eventually stopped her prescriptions and found a full-time job. The other claimant dove deeper into narcotic addiction and exhibited classic drug seeking behavior – such as “losing” his prescriptions and requiring early refills. He tested positive for other illegal drugs once his rightfully suspicious physician initiated a monitoring program.

There was no appreciably different set of claim management tools or tactics used for the claims – the stark difference in outcome came down to the want of the individual… an almost impossible aspect for the day-to-day claim practitioner or human-resources manager to reach or control. And, at the time of my audit, the claims were equally easy to close.

The woman free of prescriptions and carrying a full-time job was simply no longer a claimant. She was probably very happy to have her case closed and the dark chapter of her life over. We decided on an administrative closure of the claim.

On the other hand, the gentleman was barred from his erstwhile treating physician and pain management clinic for abusing meds and refusing a drug treatment program. A host of independent medical opinions indicated the man did not require further meds for the old injury. His everyday behavior was highly unfocused and erratic, apparently causing no attorney to take his WC case. He lived out of a tent in a relative’s backyard.

The man’s claim was also an easy administrative closure because of lack of any foreseeable prosecution. I have to admit his situation nicked at my coat of cynicism, the one layered thick from years in this profession. I hated the plain fact that he was a doomed victim of a WC system enabling his addictive conditions.

To my good readers, I ask: Which closure would you rather preside over?

Quick-Tip: Know When to Hold ‘Em But Don’t Wait to Fold ‘Em

Concept:

When reasonable medical treatment has no impact, quickly consider other options. A claimant with misguided intentions or extraneous problems and no desire to be “cured” might just be his own worst enemy and using the WC claim as a primary enabler.

Suggestions:

– Find appropriate ways to incorporate employee assistance programs (EAPs) or other specialty counseling services to support employees or WC claimants who have debilitating outlooks or possible addiction issues.

– Maintain a “no-fill” position on narcotic prescriptions. This will give you and your defense team at least an opportunity to block dangerous drugs before they are automatically initiated.

– Consider any “chronic pain” diagnosis to indicate maximum medical improvement (MMI). “Chronic” as a term arguably fits MMI. Try to settle the case under that premise. Fight the diagnosis and treatment plan, as a means to pressure settlement. If the plaintiff’s side argues against an MMI determination, then demand a treatment outlook and timeline that results in stopping pain medication.

– For claims with long-term narcotic situations, seek peer reviews to ascertain if the regimes are excessive and if a recommendation for detoxification is appropriate. Specifically set up medical evaluations to confirm addiction and substance abuse tendencies.

– Never presume a claimant with the wrong attitude and bleak outlook will be cured by any type of treatment. Know when you are wasting time and money. You must sense and act on this early. Don’t rely on adjusters to raise questions, as their inclination is to keep treating as long as medical opinion approves. You must take the role of disruptor.

Bottom line” It is distressing that workers’ comp enables addiction. Closing such cases is not always pretty. Learn from the disasters and take more responsibility in the future. Recognize that claimant attitude and outlook are of primary importance, for good or for bad.

Is EEOC an Unlikely Friend on Work Comp?

The traditional school of thought since the Americans with Disabilities Act (ADA) was enacted in 1990 is that it did not apply to state workers’ comp cases because they involve temporary disabilities and work restrictions. Claimants were not considered “qualified individuals with a disability” under the ADA. Even if the ADA provision for a “reasonable accommodation without undue hardship” is to be taken into consideration, the process would not begin until the claimant reached maximum medical improvement (MMI). But informal EEOC guidelines released in December 2014 stated that these traditional understandings may not be legal.

The EEOC release stated that it is “not true” that MMI should be considered the trigger for ADA-related protections for employees and obligations for employers. Employers must begin the ADA interactive process for return to work (RTW) much sooner than commonly thought. The EEOC is saying that workers’ comp and the ADA process are to run simultaneously, not sequentially. In addition, the worker must be an active participant in the process. This is a major surprise to many in the industry.

I have been a proponent of using “the spirit of the ADA” to implement return-to-work practices in workers’ comp programs for 25 years. (See previous ITL article, “Return-to-Work: A Success Story,” June 25, 2014.) However, these new “interactive process” guidelines may change the whole practice of RTW in workers’ comp because most employers and their third-party administrators (TPAs) or insurers typically postpone attempts at a reasonable accommodation until the claimant reaches MMI. That may now be construed as a violation of employee rights and employer obligations under the ADA.

In addition, the EEOC guidelines give a very broad definition of disability and when it applies under the ADA. The EEOC spokesperson said the ADA applies “all the time” and “as soon as notified” when “a medical condition has the potential to significantly disrupt an employee’s work participation. . . . The only relevant question is whether the disability is now, or is perceived as potentially, having an impact on someone’s ability to perform their job, bring home a paycheck and stay employed.”

That is a mouthful to swallow and think about. The ADA would apply if the disability is “perceived” as having an impact on the ability to perform a job. Perceived by whom? The employer? The employee? The physician? What physician?

What does this mean for employers?

The EEOC stated that its biggest concern is the employee who has a disability but who can perform the essential functions of a job with a reasonable accommodation. The cause of the disability is considered irrelevant under the ADA. It will now be very difficult for employers to say that a worker is not a “qualified” individual under the ADA because the person obviously held the job prior to the disability.

The EEOC stated that everyone, including treating physicians, TPAs and employers, should “keep that in mind” but that only the employer is accountable for complying with the ADA. Treating physicians and employer vendors who fail to communicate with employers during the “stay @ home” process may be exposing the employer to increased risk and liability, and the EEOC spokesperson said this failure would be particularly troublesome if a treating physician who is picked by the employer doesn’t tell the employee about adjustments that might allow her to work. The employer may be liable for failing to provide that accommodation even if not properly passed along. The EEOC spokesperson went on to say that physicians and vendors should be educating employers. But who, may I ask, is educating the physicians and employer vendors?

How should employers react to these EEOC process guidelines for workers’ comp and other non-occupational disability programs? Employers should embrace them!

Most that is truly considered workers’ comp managed care and RTW best practices are encompassed in these interactive guidelines: prompt, high-quality medical care followed by 24-hour contact between workers, treating providers and supervisors. Safe return to work, with or without reasonable accommodations, should be the goal from day one and documented in each case, even without intervention by the EEOC.

Sebastian Grasso, CEO of Windham Group in Manchester, NH:

sgrasso@windhamgroup.com

which specializes in “failed return-to-work,” agrees and argues that the EEOC action should be a “wake-up call” for employers. Grasso, like several other industry experts interviewed for this article, said that in his 25-year career in the RTW business his employer/insurer clients have never brought up the ADA in workers’ comp cases. He said the two problems faced on a daily basis in the workers’ comp industry that severely hamper RTW efforts are erroneous job descriptions and inflexible employers who won’t take injured workers back unless they are “100%.” This traditional mindset and passive approach to RTW may now be considered an ADA violation, so employers and insurers may have to re-think their RTW policies and procedures.

Grasso stated; “We get injured workers back to their original jobs; it’s what we do every day. It’s the right thing to do; it’s non-adversarial and benefits all the players in the process.” This approach appears to be both within the spirit and now actual guidelines of the ADA, according to the EEOC.

Ted Ronca (medsearch7@optionline.net), a leading workers’ comp and disability attorney based in New York, also stated that he never saw the ADA brought up in a workers’ comp case in New York in the past 24 years. Ronca also feels employers should “champion” the new approach for workers’ comp RTW programs. He recommends the first thing for employers is to establish job requirements and bring the employee into these preliminary discussions. Ask the worker for his input on reasonable accommodations and document the discussion.

Back when the ADA was enacted in 1990, many believed a slew of litigation would result from workers’ comp cases. This has rarely, if ever, happened. Most experts I have spoken to are not aware of any cases, but the original fears may now come to fruition. As Ronca noted; “75% of the cases in the New York work comp system involve cases where the claimant’s attorney is claiming total disability and seeking a lump-sum award.” Getting that injured worker back to work is not on the claimant’s attorney agenda but should be on the employer’s.

Employers should not fear the ADA but embrace it. The ADA has built-in protections for employers such as that any accommodations must be “reasonable without undue hardship.” This means significantly difficult or expensive. In addition, employers are not required to eliminate or reduce the essential functions of a job even temporarily. The EEOC is simply saying that employers may choose to reduce job demands and productivity expectations on a case-by-case basis and that no blanket policy is appropriate.

However, the EEOC goes on say that the ADA cannot be used to deny a benefit or privilege to which an employee is entitled, such as time off under the Family and Medical Leave Act (FMLA), workers’ comp, disability, sick leave, accrued vacation or any other leave and benefits. The EEOC considers the ADA “civil rights for people with disabilities.”

I just loved the EEOC comment that an employer’s stay @ home policy is not a reasonable accommodation. Not only is an interactive process the right thing to do for disabled workers, it will save money, improve productivity and protect employers from potential ADA violations and obligations.

It may be time to rethink your return to work program. It’s about time!

The Key to Success: a Workers’ Comp Audit

Third-party administrators (TPAs) promise to manage workers’ comp costs for employers through vigilant review and through discounts on medical care that they can provide because of their access to preferred provider organizations (PPOs), but consider the experience of a Fortune 25 client of mine. My analysis found that, despite the discounts, after all the TPA charges for medical bill review the company was paying $1.10 for every $1.00 in workers comp medical bills submitted for payment.My report showed my client could get a 10% savings on its workers’ comp program by not having a bill review program with its TPA and just paying all bills at 100%!

To avoid similar problems and to find maximum savings, employers should, at minimum, conduct an annual review of their claims handling. TPAs and insurers do their own reviews, but when is the last time such a report concluded, “We need to do a better job”? Although long-term relationships with TPAs or insurers are generally a good thing, employers should adopt the President Reagan admonition to “trust, but verify.”

The need for claims audits is especially great in times like the present, because a weak economy has historically correlated with increased potential for fraud and abuse. In a report released last year by the National Insurance Crime Bureau, the number of questionable claims was up 28% in 2012. The three major reasons were: workers filing claims based on prior injuries not related to the workplace; malingering; and just plain old fraud.

The annual reviews should employ four standards. The first should be verification that the TPAs/insurers performance measurements and contractual obligations are being met. An outside independent claim audit should identify all the things that the claims administrator is doing well, along with identifying areas for improvement.

The audit should actually help TPAs and insurers that have performance bonuses built into their contracts. I have also found that an independent analysis often discovers that the employer causes many of the problems by reporting claims late, by communicating poorly or by lacking a return-to-work program. Such barriers are difficult for even the best claim administrators to overcome. Claim administrators often find it difficult to tell the employer that the emperor has no clothes. A good consultant can, through an independent audit.

The second standard of review should be to determine if the claim administrator is meeting its own internal standards, policies and procedures, such as caseloads per adjuster, quality controls, activity checks and timeliness of benefit payments.

The third level of review should be to compare the claim administrator’s standards, policies and procedures to widely accepted industry best practices, such as: initial claim investigation, three-point contact, return-to-work action plans, referral to medical case management and use of independent medical examiners.

The fourth level of review should be comparison to an ideal vision of a workers’ comp program. If you could play Santa Claus and had an unlimited budget, what changes, resources and areas of improvement would you like to see? You would be surprised what great ideas spring from that question, that actually don’t cost a lot of money to implement.

My experience in the workers’ compensation industry began with learning the business from the treating provider’s viewpoint. To this day, that occupational medical practice’s 24-hour medical triage program to local employers is the best model I have ever seen: Get the injured worker to the best provider and facility from the moment of injury based on the nature and severity of the injury. All claimants by definition are patients who have a work-related injury or illness before they become claimants, or at least say they do. (Excuse me for being cynical, but I grew up in tough industrial town in New Jersey where committing workers’ comp fraud was apparently easy and was considered a badge of honor at the neighborhood tavern.)

Virtually every expert agrees that the most effective cost-containment activities should take place within the first 24 hours of a worker’s seeking medical treatment, yet this is rarely the focus of the multibillion-dollar managed care industry. Instead, that focus has been on generating huge profits by selling “percentage of saving” arrangements based on PPO “discounts.” Audits can help return the focus to where it should be.

Audits can also provide the setting for spotting lots of other problems. For instance, a large, self-insured and self-administered trucking company went through every group health medical claim with a fine tooth comb, but all workers’ comp medical bills were stamped to be paid at 100%. When I asked why, the risk manager replied, “Because workers’ comp requires us to pay 100% of medical.” I pointed out the golden rule, that his statement only applied for reasonable and necessary care related to the injury or illness up to the point of maximum medical improvement (MMI). I felt like Thomas Edison when I saw the light bulb go on above his head. That was the beginning of the end of the policy to pay all workers’ comp medical bills at 100% of billed charges.

One of my favorite career moments stems from an interview with a senior executive at a TPA, on behalf of its largest client. I asked him about his quality-assurance program. His answer was, “As you know, we are historically weak in this area.” Weeks later, the client asked why I gave their quality-assurance program such a poor grade. My written response was: “Because they are historically weak in this area.”

I begin consulting engagements with corporate clients by asking, “It is 9:00 a.m.; what will happen if you have a work-related injury at 10 a.m.?” Two of my favorite responses were: “That’s a good question. I have no idea”; and, “We send everyone to the emergency room.” I replied to the second answer with, “And then what?” The silence was deafening. That type of response is always dynamite for my claim-audit/cost-containment reports.

First three things I want to know are: Who is the treating provider? Where are the medical reports and documentation? What was done with them?

I have always told my clients that the first time they see a doctor and a lawyer on the same claim file, it is a coincidence. The second time, it is a conspiracy.

Why conduct a workers’ comp claim audit? Because it is where the rubber meets the road.

Doctors Can Drive Claim Costs – A Case Study

In response to our recently published article, http://medmetrics.blogspot.com/2012_03_01_archive.html”>Survey: Employers Want WC Cost Control. Really? a reader commented:

“The biggest problem I have is finding the right doctors. If all of my employees were in one location, this would be a piece of cake, but we are a trucking company with drivers who live and work all over the U.S.”

She continued, “I just had a conversation with a doctor’s office this morning about a claimant at the other side of the country. This employee, the claimant, has been off work 6 weeks with a knee injury. X-rays and MRI show nothing acute, the ligaments and cartilage are fine, but the claimant still reports pain. The doctor admits he has no explanation for claimant’s pain complaints. However, instead of releasing claimant back to work or declaring MMI (Maximum Medical Improvement), the doctor referred him to a specialist.”

Nice Guy, But …
The frustration experienced by this claim manager is palpable. Yet, the treating physician is probably not fraudulent or abusive of the Workers’ Comp system. He is probably unaware of the impact of his decision to refer. Moreover, he is probably also oblivious to the fact that the longer the patient is off work, the chances of returning decidedly decrease. The doctor is simply treating the patient as he would his neighbor. But that is not the best care from a Workers’ Comp viewpoint.

That Obvious
The obvious solution is to prevent such dilemmas by selecting only excellent treating providers who understand the Workers’ Comp system. But how can they be found? Most provider networks still contract with anyone and everyone, regardless of performance, thereby leaving employers like this one marooned. Yet that tradition is changing and changing fast.

Enlightenment
The enlightened movement in the industry quickly gaining traction is outcome-based networks. Many are structured as carve-outs of existing networks suited to individual locations and needs.

Analysis of individual performance as evidenced in data indicators can be based on industry research. Among the indicators are frequency and duration of medical treatment, return to work rates, indemnity costs, litigation, direct medical costs, and many other factors specific to Workers’ Comp. Comparative provider performance must be state-specific and quality of care is considered.

Medical Quality

Medical quality in Workers’ Compensation is as important as it is in general health. Injured Workers deserve the best medical care available. However, in Workers’ Comp there is another layer of quality measurement superimposed on what is considered in general health. In general health quality is measured in terms of accepted treatment patterns followed and return to health. However, in Workers’ Comp, measures of administrative factors, such as return to work, are quality indicators integrated into provider performance evaluation.

Monitoring To Maintain Excellence
Once best-in-class providers are selected in a region, continued monitoring is important, lest their performance slide. Moreover, letting them know they are being monitored, comparing them to other providers like them in their state, can be an extremely effective means of managing provider performance.

What To Do
Industry enlightenment will drive the solution. People now realize they need better information about which doctors to choose, information based on objective data, not vast lists of doctors’ names and locations. Moreover, you help make that happen — now.