(c) 2018 Jon L Gelman, All Rights Reserved.

Saturday, December 29, 2012

Class Action by Medicare Advantage Beneficiares Dismissed By Federal Court

A federal class action, by a group of plaintiffs who alleged that they were a class of Medicare-eligible individuals enrolled in a Medicare Advantage plan, and received benefits under part C of the Medicare program, was dismissed by a federal court under the preemption doctrine. In an action removed to Federal court, the plaintiffs sought to bring a class action in state court alleging that New York state law applied regarding reimbursement for for monetary settlements from third-party tortfeasors.

The court ruled that the interpretation of the secondary payer provision of Medicare part C, 42 USC section 1395W-22 (a)(4), preempted any state law provisions.

Meek-Horton v. Trover Solutions, Inc., No. 11 CV 6054(RPP), 2012 WL 6699776, (SD-NY 2012) Decided December 26, 2012

Read more about "The Medicare Secondary Payer Act" and workers' compensation

Oct 01, 2012
US Supreme Court Denies CMS-MSP Case - Hadden. 2012 WL 1106757. Supreme Court of the United States. HADDEN, VERNON V. UNITED STATES. No. 11-1197.Oct. 1, 2012. Opinion. The petition for writ of certiorari is ...
Dec 28, 2012
CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...
Apr 03, 2009
CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...
May 18, 2011
"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's ...

Friday, December 28, 2012

Legislation Goes to President Obama on CMS Condition Payment Procedures

The US House (H.R. 1845) and US Senate has passed legislation to modify procedures for processing conditional payments under the Medicare (S. 1718) Secondary Payer Act. It establishes parameters for repording, processing and appealing issues concerning conditional payments.

Under the proposed legislation time periods for reporting by parties to CMS (The Center for Medeicare and Medicaid Services) are eased, penalities for insurance carriers are reduced, and a 3 year statute of limitations is established.

The legislation was merged into another pending bill for medical services and was rushed to a favorable vote in both the House and Senate in the last moments before Christmas.

What remains to be determined are the regulations that will be established to implement the legislation. In the past, such regulations usually set boundries for such legislation and may in the end further complicate and even prolong resolution of the issues.

Read more about "The Medicare Secondary Payer Act" and workers' compensation

Oct 01, 2012
US Supreme Court Denies CMS-MSP Case - Hadden. 2012 WL 1106757. Supreme Court of the United States. HADDEN, VERNON V. UNITED STATES. No. 11-1197.Oct. 1, 2012. Opinion. The petition for writ of certiorari is ...
Apr 03, 2009
CMS/MSP Requires Deceased Beneficiary Information. CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers. "We received another question ...
May 18, 2011
"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's ...
Dec 23, 2008
A formal process exits to obtain a waiver of an Overpayment Recovery request from The Center for Medicare and Medicaid Services [CMS]. If SSA advises you or your client that it has made an overpayment, ie. Medicare ...

Thursday, December 27, 2012

Who Calls The Shots, Your Employer-Selected Doctor Or The Insurance Company?

Insurance companies sometimes tell doctors that they will not pay for procedures that the doctor says are medically appropriate.

Today's post comes from guest author Nathan Reckman from Paul McAndrew Law Firm.

In Iowa, employers have the right to control an injured worker’s medical care. This means that if you are injured at work, your employer gets to send you to a doctor of their choosing. The doctors chosen by the employer are called “authorized treating physicians.” In theory, after an employer chooses their authorized treating physician, they are required to pay for any care that doctor believes is necessary to treat the work injury. In practice, the employer and their workers’ compensation insurance company often try to interfere with the care the injured worker is entitled to by refusing to pay for procedures or tests recommended by their handpicked doctor.

Typically, when an authorized doctor suggests an expensive course of care (like surgery) the first thing the doctor will do is check with the insurance company to make sure the surgery is going to be paid for. Instead of immediately scheduling the needed surgery, the doctor will wait until the insurance carrier agrees to pay for the procedure. Doctors do this so they don’t have to worry about how they are going to be paid. Asking for this unneeded authorization from the insurance company means the insurance company now has a say in determining what individual procedures are proper for the care of the work injury.

We often see injured workers whose injury was initially accepted by the employer until the doctor requests authorization for an expensive surgery. When faced with the additional cost of surgery, the insurance carrier denies the work injury hoping the injured worker will either forego surgery or try to pay for the surgery through other means, such as their personal health insurance.

This situation may also arise when the authorized doctor recommends expensive diagnostic procedures, like CT scans, or refers the injured worker to a specialist, for example a psychiatrist for depression related to the work injury.

To make sure your rights are protected, it’s often helpful to have an experienced workers’ compensation attorney on your side if you’re facing a situation where your employer is trying to interfere with the decisions of their handpicked doctor. Injured workers should get the care that their doctor, not an insurance company, determines is medically appropriate.

Read more about "medical treatment" and workers' compensation.

Nov 16, 2012
New York Worker's Compensation Board's proposed new medical treatment guidelines that will modify 2010 previously implemented. Adopt the new carpal tunnel syndrome (CTS) medical treatment guidelines (MTG) as the ...
Nov 09, 2012
On Tuesday, the American people expressed its support for a unified medical care program that will embrace all aspects of life, including industrial accidents and diseases. They validated, as did the Supreme Court, the ...
Nov 01, 2012
Planned changes by Mitt Romney to Medicare and Medicaid will have a dire effect on the regulations of the future cost of workers' compensation medical treatment. Proposed changes to the Federal program will indirectly ...
Jan 22, 2011
The court held that the failure of the employer/insurance carrier to provide medical care for out-of-state treatment, even though requested by the employee, was deemed a refusal of the employer to provide adequate medical ...

Related articles

Monday, December 24, 2012

Happy and Healthy Holiday Season

Electronic Health Records: Occupational Information and Demographics

Report: IOM
With the widespread adoption of electronic health records (EHRs), the Institute of Medicine has concluded that incorporating patients’ occupational information into EHRs could lead to more informed clinical diagnosis and treatment plans as well as more effective policies, interventions, and prevention strategies to improve the overall health of the working population. However, this potential will only be realized if providers have an incentive to collect and record information on patient occupation and industry.

"Demographics are statistical characteristics of a population. These types of data are used widely in public opinion polling andmarketing. Commonly examined demographics include genderageethnicity, knowledge of languagesdisabilities, mobility, home ownership, employment status, and even location. Demographic trends describe the historical changes in demographics in a population over time (for example, the average age of a population may increase or decrease over time). Both distributions and trends of values within a demographic variable are of interest. Demographics are very essential about the population of a region and the culture of the people there."

Between now and January 14, you have the opportunity to express your support for including occupation and industry codes in the federal rules defining "meaningful use" of EHRs. If you choose to do so, please consider telling the Office of the National Coordinator for Health IT (ONC) that you favor the addition of occupation and industry codes and the retention of demographics as incentivized objectives in the definition of meaningful use.

These changes will not only address the meaningful use goal of improving quality, safety, and reducing health disparities but also serve to improve the goal of improving population and public health by securing the data needed to improve the ongoing, systematic collection, analysis, and interpretation of occupational injury and illness.

Links for submitting your comments and additional background information are included below.


Request for Comment Regarding the Stage 3 Definition of Meaningful Use

Stage 3 Definition: Objectives, Recommendations, and Questions/Comments (see Page 6)

Comment Submission!docketDetail;D=HHS-OS-2012-0007


Included as part of the American Reinvestment & Recovery Act (ARRA), the "Health Information Technology for Economic and Clinical Health" (HITECH) Act promotes the meaningful use of interoperable electronic health records (EHRs) throughout the United States health care delivery system as a critical national goal. This effort is led by the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health IT (ONC).

CMS grants an incentive payment to Eligible Professionals (EPs) or Eligible Hospitals (EHs) who can demonstrate that they have engaged in efforts to adopt, implement or upgrade certified EHR technology. In order to encourage widespread EHR adoption, promote innovation, and avoid imposing excessive burden on healthcare providers, meaningful use has been introduced in stages. Rule making defining meaningful use for stages 1 and 2 has already been finalized. On 11/26/2012, ONC published a notice in the Federal Register requesting comments on the draft recommendations for meaningful use stage 3. The comment period will close on 01/14/2013.

The Health Information Technology (HIT) Policy Committee has proposed adding occupation and industry codes and eliminated demographics as incentivized objectives. The addition of occupation and industry codes is welcome, but these data will have little value for computing health statistics if demographics are missing. Occupation and industry codes should be added and demographics should be retained.

IOM: Incorporating Occupational Information in Electronic Health Records: Letter Report

CDC: Introduction to Meaningful Use

Health Affairs: 'Meaningful Use' Of Electronic Health Records

NEJM: The "Meaningful Use" Regulation for Electronic Health Records

Wikipedia: Meaningful Use

Read more about "Electronic Health Records" and Workers' Compensation

Jul 05, 2012
Written comments submitted to the Docket will be used to inform NIOSH with its planning and activities in response to the 2011 letter report “Incorporating Occupational Information in Electronic Health Records” written by the ...
Oct 05, 2011
David H. Wegman, Catharyn T. Liverman, Andrea M. Schultz, and Larisa M. Strawbridge, Editors; Committee on Occupational Information and Electronic Health Records; Institute of Medicine. 84 pages PAPERBACK $35 ...
Oct 04, 2011
The use of electronic health records (EHRs) has increased rapidly since the passage of the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act. Incorporating patients' occupational information ...
Feb 14, 2009
The new economic recovery package includes an appropriation of $19 Billion for the expansion of electronic health records [EHR] by funding intellectual technology. The legislation fails to include an essential prohibition on ...

Saturday, December 22, 2012

Are You Sure Your Hospital is on Santa's List?

Medicare has announced the bonuses and penalties for specific US Hospitals holding them accountable on quality of services rendered to patients. Soon the program will be expanded to doctors.

Thursday, December 20, 2012

SeaWorld Safety Investigation Expanded by OSHA

Safety at SeaWorld continues to be an issue. OSHA has expanded a new investigation concerning the exposure of trainers to struck by and drowning hazards when engaged in performances with killer whales.

The U.S. Department of Labor's Occupational Safety and Health Administration has filed a petition against SeaWorld of Florida LLC to comply with administrative subpoenas that require SeaWorld to provide three managers to be interviewed during OSHA's follow-up abatement inspection. SeaWorld has declined to provide personnel to answer questions regarding abatement or correction of a prior violation related to trainers' exposure to struck-by and drowning hazards when engaged in performances with killer whales.

"The employee testimony for the follow-up abatement inspection, required by a subpoena, allows OSHA inspectors to determine if SeaWorld employees continue to be exposed to unsafe and unhealthy working conditions," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Abating safety and health hazards in the workplace needs to be as important to an employer as recognizing the hazards in the first place."

The follow-up inspection is being conducted as a result of previous violations that OSHA identified after a February 2010 drowning of a trainer who was grabbed and pulled under the water by a six-ton killer whale during what SeaWorld described as a "relationship session." In August 2010, OSHA issued SeaWorld citations related to the incident. SeaWorld contested OSHA's proposed violations and penalties.

A trial was held by the Occupational Safety and Health Review Commission, and in June an administrative law judge upheld OSHA's citations against SeaWorld. Subsequently, SeaWorld was required to abate cited hazards, including those specifically related to trainers working in proximity to the killer whales. However, since the order went into effect, SeaWorld has filed a petition with the review commission seeking additional time to abate the violation regarding trainers' interaction with killer whales. SeaWorld maintains that the petition, which is pending resolution, should restrict the scope of OSHA's follow-up inspection.

The enforcement action has been filed in the U.S. District Court for the Middle of Florida, Orlando Division by the department's Atlanta Regional Solicitor's Office.

Read more about "SeaWorld" and safety issues:

Sep 25, 2011
This week a trial began in Florida between SeaWorld theme parks and the Occupational Safety and Health Administration(OSHA). The trial is over several citations and a fine stemming from incidents in which killer whales ...
Feb 27, 2010
The terrible and tragic death of Daum Brancheau, the trainer who was attacked at SeaWorld by a killer whale, provides striking evidence that the present system, to make the workplace safer, is not working. The corporate ...

Mercury to be Removed by US EPA From Pompton River in NJ

The US EPA has announce that mercury, a hazardous substance, that was dischardged by EI DuPont in the Pompton River in NJ will be removed. For decades it has been known that mercury exposure causes illness and injury to workers.

The U.S. Environmental Protection Agency today announced its plan to remove mercury contamination from the sediment of the Acid Brook Delta of Pompton Lake in Pompton Lakes, New Jersey to levels that meet stringent standards to protect people’s health and the environment. The plan will go into effect as a modification of a permit, which legally requires the E.I. du Pont de Nemours & Company, Inc. to fund and perform the work. Under the permit modification, the EPA will require DuPont to dredge at least 100,000 cubic yards of mercury contaminated sediment from the bottom of a 40-acre area of Pompton Lake and remove at least 7,800 cubic yards of contaminated soil from a shoreline area of the lake affected by DuPont’s past discharges. All of the sediment and soil will be sent to a licensed disposal facility.

Mercury in the sediment and soil can build up in the tissue of fish and other wildlife and pose a threat to people who eat them. Exposure to mercury can damage people’s nervous systems and harm the brain, heart, kidneys, lungs and immune systems.

“The removal of mercury-contaminated sediment from Pompton Lake is a major step toward the recovery of the lake and the protection of people’s health,” said EPA Regional Administrator Judith A. Enck. “The expanded dredging and other revisions in the final cleanup plan reflect the EPA’s commitment to protecting public health and improving environmental quality in Pompton Lakes.”

In November 2011, the EPA proposed a preliminary permit modification to remove contaminated sediment from the bottom of Pompton Lake and encouraged the public to comment on it. A public hearing on the proposed permit modification was held in January 2012. The final permit modification announced today incorporates changes that were made in response to comments from the public and the U.S. Fish and Wildlife Service and additional technical information received from DuPont after the proposed permit modification was issued. A public meeting to discuss the permit modification for the Acid Brook Delta of Pompton Lakes will be held on January 15, 2013.

Under the final permit modification, the area of sediment that will be removed has been expanded by approximately 35% and sediment sampling is required to identify additional areas of the lake that may require the removal of mercury-contaminated sediment. In addition, DuPont is required to implement long-term monitoring of the effectiveness of the dredging, restore the soil between Lakeside Avenue and the edge of the lake, and perform an ecological risk assessment to determine whether additional action may be needed in the future. DuPont will be required to develop work plans for these requirements, which must be submitted to the EPA for approval. The cleanup will be financed and conducted by DuPont with EPA oversight.

The E.I. du Pont de Nemours & Company, Inc. operated the Pompton Lakes Works facility, located at 2000 Cannonball Road, from 1902 to April 1994. Products manufactured at the facility included explosive powder containing mercury and lead, detonating fuses, electric blasting caps, metal wires and aluminum and copper shells. The manufacturing operations and waste management practices contaminated soil, sediment and ground water both on and off-site. Lead and mercury from its operations were released into Acid Brook, which flows through the eastern part of the facility and discharges into the Acid Brook Delta of Pompton Lake. DuPont’s operations also contaminated the ground water with chlorinated volatile organic compounds, such as tetrachloroethylene, trichloroethylene, cis 1,2-dichloroethylene and vinyl chloride.

The cleanup of the Acid Brook Delta requires a modification of the permit under the federal Resource Conservation and Recovery Act. The final permit modification will become effective on February 4, 2013 pending any requests for appeal submitted prior to that date.

Plans to clean up the remaining areas of contamination will be proposed through future permit modifications after ongoing investigations by DuPont have been completed and reviewed by the EPA and the New Jersey Department of Environmental Protection. Opportunities for public participation will continue to be provided through regular updates, public notices and public meetings.

The permit modification and relevant documents are available at the EPA’s project website at:

The public also can review documents related to the permit modification and cleanup at:
Pompton Lakes Public Library
333 Wanaque Avenue, Pompton Lakes, New Jersey
(973) 835-0482

Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 

Read more about "Mercury" and workers' compensation
Nov 26, 2012
Irving J. Selikoff Center for Occupational & Environmental Medicine at Mount Sinai School of Medicine has released a guide to treatment for elemental mercury ((the pure form of the metal, when it is not combined with other ...
Mar 05, 2010
For example, nearly 70 years ago, on December 1, 1941, the U.S. Public Health Service ended mercury's use by hat manufacturers in 26 states through mutual agreements. The kinds of conditions that put hat-makers and ...
May 09, 2012
The U.S. Environmental Protection Agency will discuss plans to address high levels of contaminants, including PCBs, mercury and dioxin, which are present in Passaic River mud adjacent to Riverside Park in Lyndhurst, New ...
Aug 09, 2012
They concluded that there was enough evidence of a link to classify it as “possibly carcinogenic to humans,” placing it in the same category as lead and mercury. The long-awaited Interphone study, a major inquiry into the ...

Wednesday, December 19, 2012

NJ Workers Compensation Premiums Go Up for 2013

NJ Compensation Rating and Inspection Bureau has announced rate increases for 2013 as follows:

Revision of Rates and Rating Values – Effective January 1, 2013

The Commissioner of Banking and Insurance (“Commissioner”) has approved an 8.3%
increase in manual rates and rating values applicable to New Jersey workers compensation and employers liability insurance effective January 1, 2013 on a new and renewal basis.


New Jersey law mandates application of separate policyholder surcharges to finance the

Second Injury and Uninsured Employers’ Funds. Based on the Department of Labor and Workforce Development’s estimate of 2013 Fund requirements, the policyholder surcharge percentages effective January 1, 2013, on a new and renewal basis to be applied to the modified premium are:

Second Injury Fund 6.76%

Uninsured Employers’ Fund 0.00%

Read more about "premiums" and Workers' Compensation:

Sep 21, 2011
The team also discovered that for the entire 35-year timeframe of the study, rising premium rates were closely linked with the Dow Jones Industrial Average or Treasury bonds. As either the Dow or interest rates on Treasury ...
Jul 18, 2012
Governor Andrew M. Cuomo today announced that for the first time in four years, New York State employers will see a reduction in workers' compensation premium rates. The Governor asked for a reconsideration of the ...
Nov 13, 2012
The study, of what it calls "skyrocketing rates" yielding higher premiums, reveals that higher premiums are instead associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds.

Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 

Asbestos Losses Mount to $85 Billion