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(c) 2014 Jon L Gelman, All Rights Reserved.

Wednesday, October 29, 2008

CMS Discusses Asbestos Claims MSP Reporting Requirements

CMS confirmed in a national telephone conference today that in workers' compensation claims where the toxic exposure, ie. asbestos exposure, ceased prior to December 5, 1980, reimbursement or reporting was not required. On the telephone conference call mandatory reporting requirements for liability insurance, no-fault and workers' compensation were discussed and questions solicited and from the participants..

The CMS position was validation of prior informal memorandum in circulation concerning asbestos exposures. The rationale for the opinion has been previously bean based upon the fact that the Medicare Secondary Payer Act was not enacted until that date.

The telephone conference call was scheduled by CMS in an effort to clear the air about its recent rules and suggestions concerning the implementation of the recent working requirements mandated by Congress. 42 U.S>C. 1395y(b)(7)).

Asbestos Dealer of Death - Canada

The Canadian delegation to the Rotterdam Convention was able to lobby effectively to prohibit a ban on asbestos for another two years. The Canadian mines will continue to churn out the killer fiber and ship it to unsuspecting countries as a result of an effective major lobbying effort of the Canadians to sway the votes of India, Pakistan, Vietnam and the Philippines.

Despite a report from an independent committee of scientist urging the ban of chrysotile asbestos this year, the effort to ban asbestos failed. Chrysotile asbestos is classified as a known human carcinogen by the International Agency for Research on Cancer and more than 40 countries have already banned its sale.

It has been reported that last year alone Canada sold $77 million to developing countries around the world. Unfortunately the cost for medical care caused by asbestos related disease far exceeds that value and the loss of life is priceless. Shielded by national laws the Canadian entities have protected themselves from recovery. Exporting disease for economic greed is beyond human comprehension and is shameful. Who are the Canadians kidding, asbestos kills!

Tuesday, October 28, 2008

Injured Workers' RICO Claim to Proceed Against Employer and Insurance Company


In a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed. Several injured workers brought the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) against their employer, Crawford & Company and [cut-off treatment doctor] Dr. Saul Margules.

The allegations included that, ".....Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of worker’s compensation benefits, and that defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of 18 U.S.C. §§ 1341, 1343, which serve as the predicate acts for their RICO claims."

The decision authored by Judge Karen Nelson Moore held "...that plaintiffs’ RICO claims [may go forward] because the WDCA [Michigan Workers' Compensation Disability Act] does not preempt their RICO claims and because plaintiffs have sufficiently pleaded a pattern of racketeering activity given that reliance is not an element of a civil RICO fraud claim."

The Court concluded, "...Our conclusion that worker’s compensation benefits are not insurance and our conclusion that the WDCA was not "enacted . . . for the purpose of regulating the business of insurance," each independently foreclose the defendants’ argument that the WDCA reverse preempts RICO under the McCarran-Ferguson Act.

Of additional signifiance is that sitting by designation on the panel with Judge Moore and Judge Gibbons, was The Honorable Harold A. Ackerman, US District Court Judge for the District of NJ. Judge Ackerman has long and knowledge history of RICO actions was a former NJ Workers' Compensation Judge.

Brown, et al. v. Casses Transport Co., et al., 6th Cir. 2008, Decided October 23, 2008

Monday, October 27, 2008

CMS Publishes User Guide for Workers' Compensation Reporting

The Centers for Medicare and Medicaid Services (CMS) has now released a guide for madatory reporting of Workers' Compensation claims. The 60 page guide outlines reporting formats required pursuant to Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173).

The US Congress mandated reporting in legislation enacted late last year, 42 U.S.C. 1395y(b)(8). The burden falls under insurance carriers to report the claims data.

"The purpose of the Section 111 MSP reporting process is to enable CMS to correctly pay for Medicare covered items and services furnished to Medicare beneficiaries by determining primary versus secondary payer responsibility. Section 111 requires RREs to submit information specified by the Secretary in a form and manner (including frequency) specified by the Secretary. "

General Requirements

•Input Claim Files must include properly formatted header, detail and trailer records as defined in the file layouts provided.

•Input Claim Files must be submitted on a quarterly basis, four times a year.

•Files must be submitted within an assigned, 7-day submission period each quarter. File submission timeframes will be assigned after successful registration for Section 111 reporting.

•RREs will be assigned a Section 111 Reporter ID during registration which is to be used on all submitted files.

•Section 111 liability insurance (including self-insurance), no-fault insurance, and workers’ compensation RREs must submit their initial production Section 111 Input Claim File during the fourth calendar quarter (October - December) of 2009 during their assigned submission timeframe.

•RREs must register on the COB Secure Web site (COBSW) by June 30, 2009, and complete testing prior to submission of production files. (The earliest date for registration is May 1, 2009.)
•Files may be submitted via the COBSW using Hypertext Transfer Protocol over Secure Socket Layer (HTTPS) or Secure File Transfer Protocol (SFTP). As an alternative, RREs with large amounts of data may submit via Connect:Direct (formerly known as NDM) via the AT&T Global Network System (AGNS). To use the AGNS method, RREs must first establish an AGNS account in order to send files directly to the COBC over AGNS. RREs that currently do not have an existing AGNS account should contact one of the well-established resellers of AT&T services to obtain a dedicated or a dial-up access line to the AGNS VAN. RREs are encouraged to do this as soon as possible since this set up can take a significant amount of time.

•RREs must implement a procedure in their claims resolution process to determine whether an injured party is a Medicare beneficiary. RREs must submit either the Social Security Number (SSN) or Medicare Health Insurance Claim Number (HICN) for the injured party on all Input Claim File detail records.

•RREs’ initial file submissions must report on all claims, where the injured party is/was a Medicare beneficiary, that are resolved (or partially resolved) through a settlement, judgment, award or other payment on or after July 1, 2009, regardless of the assigned date for a particular RREs first submission. This includes resolution (or partial resolution) through one payment obligation (regardless of whether the payment obligation is executed through a single payment, a structured settlement, or an annuity) as well as those situations where there is a responsibility for ongoing medical services.

•RREs must also report on claims for which the RRE still has responsibility for ongoing payments for medical services as of July 1, 2009, regardless of an initial resolution (partial resolution) date prior to July 1, 2009). (See the associated special reporting extension later in this document.)

•If an RRE has accepted Ongoing Responsibility for Medical payments (ORM) on a claim, then the RRE must report two events; an initial record to reflect the acceptance of ongoing payment responsibility and a second (final) record to reflect the end date of ongoing payment responsibility with the corresponding end date reflected in the ORM Termination Date (Field 78). Because reporting is done only on a quarterly basis, there may be some situations in which the RRE reports the assumption of ongoing responsibility in the same record as which a termination date for such responsibility. RREs are not to submit a report on the Input Claim File every time a payment is made for situations involving ongoing payment responsibility.

•A Federal Tax Identification Number (TIN) Reference File must be submitted with the Initial Claim File containing records for each plan TIN submitted in Field 47 of Claim File detail records. For those who are self-insured, their TIN may be an Employer Identification Number (EIN) or Social Security Number (SSN) depending upon their particular situation.

•All combinations of Plan TIN and TIN Site ID submitted in Fields 47 and 48 of the Claim File detail records must have a corresponding TIN/TIN Site ID combination on the TIN Reference File.

•Subsequent Claim Files do not need to be accompanied by a TIN Reference File unless changes to previously submitted TIN/Site ID information or new TIN/TIN Site ID combinations have been added.

•Subsequent quarterly update files must include records for any new claims, where the injured party is a Medicare beneficiary, reflecting settlement, judgment, award, or other payment since the last file submission. However, if the settlement, judgment, award or other payment is within 45 days prior to the start of the 7-day file submission timeframe, then an RRE may submit that claim on the next quarterly file. This grace period allows the RRE time to process the newly resolved (partially resolved) claim information internally prior to submission for Section 111. For example, if the settlement date is May 1, 2010, and the file submission period for the second calendar quarter of 2010 is June 1-7, 2010, then the RRE may delay reporting that claim until the third calendar quarter file submission during September 1-7, 2010. However, if the settlement date is April 1, 2010, then the RRE must include this claim on the second calendar quarter file submission during June 1-7, 2010. Records not received timely will processed but marked as late and used for subsequent compliance tracking.

•Subsequent quarterly update files must include pertinent updates/corrections/deletions to any previously submitted records.

•Quarterly update files must contain resubmission of any records found in error on the previous file with corrections made. No interim file submissions will be accepted.

•If you have no new information to supply on a quarterly update file, you must submit an "empty" Claim Input File with a header record, no detail records, and a trailer record that indicates a zero detail record count.

•E-mail notifications will be sent to the Section 111 RRE contacts after a file has been initially processed and when a response file has been transmitted or is available for download.
•Each detail record on the Input Claim File must contain a unique Document Control Number (DCN) generated by the RRE. This DCN is required so that response records can be matched and issues with files more easily identified and resolved. It can be any format of the RREs choosing as long as it is not more than 10 alpha-numeric characters as defined in the record layout. Most of CMS’ current data exchange partners use some form of a Julian date and a counter as their DCN.

•The COBC will return response files to the RRE within 45 days of the receipt date posted for the input file.

Thursday, October 23, 2008

Florida Supreme Court Rules $8/hour Attorney Fee Unreasonable

The Florida Supreme court ruled today in a workers' compensation case, that "....Inadequate fees and excessive fees are not reasonable attorney fees." It reversed the lower coourt ruling awarding an $8.00/per hour fee and upheld a counsel fee award of $16,000 for the trial work and left open an application for fee the appellate services.

Thursday, October 16, 2008

Oversight Sought of NJ Workers' Compensation System

New Jersey lawmakers have not given up on their mission to legislate changes to the State's workers' compensation system which had become the subject of a series of investigative articles in the Star Ledger Newspaper. The investigative reporting revealed a series of problems that the NJ legislature has been challenged to address.

Senate Majority Leader Stephen Sweeney (D-Gloucester), has introduced legislation (S-1982) establishng the position of ombudsman modeled after the Oregon system.

Friday, October 10, 2008

CMS Schedules Another Teleconference to Address Mandatory Reporting

CMS has scheduled yet another teleconference to address questions about mandatory reporting requirements in workers' compensation matters. The program is in preparation ofImplementation of Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007  (See 42 U.S.C. 1395y(b)(7)).

Participation is by telephone only:Wednesday October 29, 2008 1:00 PM – 2:30 PM Eastern Time - Call-in Line: 800-988-9534 -Pass Code:  NGHP 

Tuesday, October 7, 2008

A Time For Congress to Provide Compensation to 9-11 First Responders


The first responders to the horrific events of September 11, 2008 continue to be unsuccessful in obtaining NJ Workers' Compensation benefits. The Port Authority of New York and New Jersey (Port Authority), an agency formed as an Congressional Inter-State Compact, continues to prevail in the defense of claims brought by its employees, the first responders to the 9-11 tragedy.


Edward McQuade, a Port Authority police-officer, was assigned to the World Trade Center disaster site, "The Pit," for 8 weeks following the 9-11 event and allegedly developed symptomatically. Michael Ashton, also a Port Authority police-officer, worked at ground-zero for the 3 weeks (12 hour shifts) following 9-11, during the rescue and recovery phase complained of disability attributed to the post 9-11 tragedy.



The NJ Judge of Compensation denied their claims for benefits due to lack of objective evidence presented. NJ statutory language requires objective medical evidence to substantial the claims. The claims were denied without the benefits of medical monitoring being afforded for potentially latent medical conditions which are now being reported by medical investigators.


Unfortunately, the heroes of 9-11 continue to be caught in a Catch 22 situation. They lack the proof, based on scientific evidence, because the Federal government has not stepped up to the plate and done the responsible thing which is to adequately fund and co-ordinate medical monitoring, treatment and benefit programs for the 9-11 first responders and those caught the geographical web of the 9-11 scope of exposures.



These decisions scream out for Congressional oversight and advancement of legislation now pending in Congress to continue the program that the was started by the Mt. Sinai Hospital Environmental Sciences Laboratory and the NY City Fire Department. We owe our heroes nothing less than the care, concern and comfort that they gave to the victims and their families.

Saturday, October 4, 2008

The Politics of Asbestos – US Government Failed the People Declares Senator Baucus


At a recent hearing of the US Senate Committee on Environment and Public Works, Senator Max Baucus presented a report revealing that the Federal government failed to take the appropriate action to declare Libby, Montana a public health emergency in 2002. The disregard of the federal government led to a lack of funding and manpower in cleaning up the asbestos contamination according to the Senator.


“EPA was going to let people know, but they were changed from their direction. A Public Health Emergency definitely would have helped--- it would have provided media and public attention. Without a Public Health Emergency, asbestos has not become a public health issue. That’s the politics of asbestos."
Libby Montana was the former vermiculite mine site of W.R.Grace & Company. Vermiculite is a form of asbestos, a known carcinogen. Grace recently agreed to globally settle all of its asbestos claims for $3 Billion.

The exposure to asbestos has been long linked to several disease including, asbestosis, lung cancer and mesothelioma. Asbestos exposure occurs when the toxic particles are ingested or inhaled into the body. When asbestos articles attach themselves to the lining of the lung, pleural mesothelioma, a fatal disease, results. The fibers may also attach themselves to the mesothelioma linings surrounding the heart and abdomen.

Libby Montana was declared a Federal Superfund site in 1999. Following that declaration, the Federal government has poured millions of dollars into cleaning up the asbestos-contaminated site. The failure to declare the site a public health emergency limited the Federal government’s role in providing even more extensive cleanup operations and healthcare to those residents who innocently suffered the avoidable exposure to asbestos.

Wednesday, October 1, 2008

Proposed CMS Legislation Cannot be Resuscitated Following the Wall Street Bailout

The efforts of the insurance industry to revive the previously fatally ill CMS reform legislation can be declared over and the life support disconnected following the Congressional actions to bailout Wall Street. The bill had been given a bounce, like a dead cat thrown against the ground, by the insurance industry, and some misinformed stakeholders, but economics and public opinion will not support the effort any longer.

The combination of the nationalization of AIG and the need for the US government to raise $700 Billion, makes it extremely doubtful that the Federal government is going to give the insurance industry another break other than to reinforce the country's need to insure banks and their spreadsheets.

CMS made it absolutely clear on a national teleconference on October 1st that it was holding workers’ compensation insurance carriers as sole Responsible Reporting Entities (RRE) and it wasn’t going to let them just walk away and re-delegate responsibility to others. CMS declared that workers’ compensation conditional medical payments remained a “pay and chase” proposition and that CMS was not allowing the responsibility of reporting to be shifted by the insurance industry.

The tightening of governmental scrutiny is now a predominate theme as the socialization of the insurance industry becomes more apparent and the existence of workers' compensation as a State based program becomes ever more threatened. Both sides of the political aisle are now being encouraged to look at insurance programs in a new light and make major adjustments as the economic viability of the country remains threatened. Giving the insurance industry another break by allowing them to shift responsibility back to CMS just isn't on the horizon and the idea can be finally buried.