Governor Murphy Signs Legislation to Dramatically Reform New Jersey's Medical Marijuana Program, Expand Patient Access

Governor Phil Murphy on July 2, 2019 signed the Jake Honig Compassionate Use Medical Cannabis Act to dramatically reform New Jersey’s Medicinal Marijuana Program (MMP) and expand patient access to medical marijuana.

NJ Legislature to Discuss Workers Compensation Reforms

The NJ Legislature will be discussing potential major changes to the NJ Workers' Compensation Act during Senate Labor Committee hearings next week. 

The Senate Labor Committee will meet on Thursday, September 20, 2012 at 10:00 AM in Committee Room 6, First Floor, State House Annex, Trenton, New Jersey.

The following bills will be considered:

S-1630
Bateman/Oroho
Prohibits payment of temporary disability benefits to incarcerated individuals.

S-1898
O'Toole/Allen
Prohibits requirement to provide information for access to account on social networking website by employer.

S-1915
Sweeney/Whelan
Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

S-1916
Sweeney
A-2879
Burzichelli/Greenwald/
Ramos/Conaway/Caride
Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications devices by institutions of higher education.

S-1926
Greenstein
Bans charging workers' compensation claimants for medical expenses, gives Division of Workers' Compensation sole jurisdiction over work-related medical claims. (Binding arbitration)

S-2022
Madden
A-2652 (1R)
Eustace/Singleton/Egan/
Benson/Coughlin
Bans charging workers' compensation claimants for medical expenses, gives Division of Workers' Compensation sole jurisdiction over work-related medical claims.

SCR-123
Scutari
Memorializes Congress and the President to enact the "Team USA Made in America Act of 2012."

A-2878 (1R)
Burzichelli/Greenwald/
Ramos/Conaway/Caride
Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

Read more about medical billing

Workers' Compensation: Law to Ban Medical Expense Claims ...

May 11, 2012

By John H. Geaney and Jon L. Gelman "Medical expenses in contested workers' compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ ...

Workers' Compensation: Law to Ban Medical Expense Claims ...

May 11, 2012

By John H. Geaney and Jon L. Gelman "Medical expenses in contested workers' compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ ...

Workers' Compensation: Law to Ban Medical Expense Claims ...

May 11, 2012

Workers' Compensation: Law to Ban Medical Expense Claims ...

May 11, 2012

By John H. Geaney and Jon L. Gelman "Medical expenses in contested workers' compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ orkers' Compensation: Collecting Unpaid Medical Bills in Workers ...

Feb 17, 2012

Medical bills now account for almost 70% of the total of workers' compensation benefits paid, and the collection of those unpaid medical bills has exploded into a cottage business creating enormous procedural and ...

NJ Supreme Court Bars Expansion of Injured Workers Remedies

Aug 02, 2012

In 2007, Stancil filed a motion in the compensation court seeking an order compelling ACE to pay outstanding medical bills. During a hearing on the motion, the compensation judge commented that ACE had a history of failing...

Medical Bills of Smokers Reported to be Less Than Expected

Apr 09, 2009

Medical Bills of Smokers Reported to be Less Than Expected. It has been recently reported that smokers may actually cost society less for medical treatment than non-smokers. The CDC has reported that since smokers die on...

NJ Proposes Informal Process for Medical Bill Disputes

Jul 23, 2009

The number of disputes concerning the payment/reimbursement of medical bills have increased in workers' compensation claims in New Jersey. The State has proposed converting the Informal Hearing procedure into a new ...

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• Job Stress A Risk For Heart Attack

NJ Bayonne Medical Center - Highest Priced Medicine in the Nation

While workers' compensation insurance carriers may set approved fees or contract with providers, hospitals have huge disparities in the cost for medical care provided. Additionally, there appears to be no difference in the ultimate outcome based on cost for medical service provided.

Compromising fees for medical services has become a big business in the US. Regulatory agencies provide a forum for the re-evaluation and determination of the cost for medical service. Many companies have emerged that provide representation in assisting in compromising fee. NJ Workers' Compensation have been mandated with the jurisdiction to evaluate the need and reasonableness of medical care provided to injured workers and establish the reimbursable value of the medical services rendered.

The highest priced medicine does not yield the best result according to published data released by the US Government. The NY Times has analyzed  data and found that the NJ Bayonne Medical Center was the highest priced hospital in the nation.

"Until a recent ruling by the Internal Revenue Service, for instance, a hospital could use the higher prices when calculating the amount of charity care it was providing, said Gerard Anderson, director of the Center for Hospital Finance and Management at Johns Hopkins. “There is a method to the madness, though it is still madness,” Mr. Anderson said."

NJ Commissioner of Labor Adopts Rules for Emergent Medical Motions in Workers Compensation Matters

David J. Socolow, Commissioner of Labor and Workforce Development, on September 3, 2009, formally adopted the pending Rules for Emergent Medical Motions. The new Rules became effective on Monday, October 5, 2009 and a notice published in the NJ Register on that date, 41 NJ Register 3807(a).

A public hearing concerning the pending Rules was held on June 2, 2009 and there were no attendees. A written comment was submitted by Kenneth A. Stoller, Senior Counsel, American Insurance Association, Washington, DC. One comment concerned the assessment of fines against an insurance carrier for activities of the employer. The Department declined to modify the pending Rules, but stated, “…the insurance carrier would not be fined or penalized where it is in no way culpable for the violation.”

A typographical correction was recognized. “Upon review, the Department has noticed a typographical error, which it would like to correct through a change on adoption. Specifically, the reference within proposed N.J.A.C. 12:235-3.3(r) to, "the decision and order rendered under (o) above," should read, "the decision and order rendered under (q) above..." Consequently, the Department is substituting "(q)" for "(o)" within N.J.A.C. 12:235-3.3(r).”

The Honorable Peter J. Calderone, Director and Chief Judge of the Division, will discuss the new Rules in an upcoming academic seminar sponsored by the NJ Institute for Continuing Legal Education on Wednesday, October 7, 2009.

………

The Rules:

12:235-3.2 General motions for temporary disability and/or medical benefits

(a)-(i) (No change.)

12:235-3.3 Motions for emergent medical care pursuant to N.J.S.A. 34:15-15.3

(a) With or after the filing of a claim petition, a petitioner may file a motion for emergent medical care directly with the district office to which the petition is or will be assigned (See N.J.A.C. 12:235-3.1 for claim petition filing and assignment).

(b) The notice of motion for emergent medical care shall be on a form prescribed by the Division and shall contain or be accompanied by the following:

1. A statement by the petitioner or the petitioner's attorney of the specific request(s) for medical treatment made by the petitioner or the petitioner's attorney to the employer and/or the employer's insurance carrier, including the name of the person(s) to whom the request(s) was/were made;

2. Medical documentation, including a statement by a physician indicating that the petitioner is in need of emergent medical care, that the delay in treatment will result in irreparable harm or damage to the petitioner and the specific nature of the irreparable harm or damage;

3. All medical records relating to the requested medical care, which are in the possession of the petitioner or the petitioner's attorney;

4. Copies of the claim petition and answer.

i. If no answer to the claim petition has been filed, the notice of motion shall include the following information if known by the petitioner: the telephone number and the fax number of the employer, the name of the employer's workers' compensation insurance carrier and the insurance carrier or self-insured employer contact person's telephone number and fax number, as required to be maintained under N.J.A.C. 12:235-3.4; and

5. Proof of service under (c), (d) and (e) below.

(c) Where an answer to the claim petition has been filed by the respondent, the notice of motion and supporting papers shall be served on respondent's attorney by fax and by a one-day delivery service.

(d) Where no answer to the claim petition has been filed by the respondent, the notice of motion and supporting papers shall be served on the employer and, if known by the petitioner, upon the employer's insurance carrier.

1. Service on the employer under this subsection shall be either by personal service or by fax and a one-day delivery service.

2. Service on the insurance carrier under this subsection shall be by fax and a one-day delivery service to the contact person listed pursuant to N.J.A.C. 12:235-3.4.

(e) Where the employer is uninsured or where the employer's insurer is not known by the petitioner, the notice of motion and supporting papers shall, in addition to the requirements under (c) or (d) above, be served on the Uninsured Employer's Fund by fax and by a one-day delivery service.

(f) The date of the personal service, the date of the fax service or the date of receipt of the one-day delivery service, whichever is latest, shall be considered the date of service under (c), (d) and (e) above.

(g) No later than five calendar days after receiving service of the petitioner's notice of motion for emergent medical care, the respondent shall file with the district office an answer to the motion.

(h) Within 15 calendar days after the petitioner has served the notice of motion for emergent medical care upon the appropriate party or parties under (c), (d) and (e) above, the employer or the employer's insurance carrier may have a medical examination of petitioner conducted.

(i) The petitioner is required to attend and cooperate with the medical examination process under (h) above.

(j) Motions for emergent medical care shall take precedence over all other court listings.

(k) The judge should use telephone conferences and afternoon hearings, as appropriate, to expedite the disposition of motions for emergent medical care and to avoid as much as possible the disruption of other court proceedings.

(l) Within five calendar days of the filing of an answer by respondent or, if no answer has been filed, within five calendar days from the date an answer should have been filed, an initial conference on the motion for emergent medical care shall take place.

(m) The district office shall provide notice of the initial conference to the following parties under the following circumstances:

1. Where an answer to the notice of motion for emergent medical care has been filed, the district office shall provide notice of the initial conference by telephone and fax to the petitioner's attorney or petitioner pro se and to the answering party using the telephone numbers and fax numbers indicated in the notice of motion for emergent medical care and the answer, respectively;

2. Where an answer to the notice of motion for emergent medical care has not been filed and where the employer is insured, the district office shall provide notice of the initial conference by telephone and fax to the employer and to the insurance carrier contact person listed in the notice of motion for emergent medical care; or

3. Where an answer to the notice of motion for emergent medical care has not been filed and where the employer is not insured or the insurer is not known, the district office shall provide notice of the initial conference by telephone and fax to the employer and to the Uninsured Employer's Fund.

(n) If the motion for emergent medical care has not been resolved at the initial conference and the employer or the employer's insurance carrier has not requested a medical examination of the petitioner under (h) above, the judge shall hold a hearing on the merits of the motion for emergent medical care as soon as is practicable, but no later than five calendar days from the date of the initial conference.

(o) If the motion for emergent medical care has not been resolved at the initial conference and the employer or employer's insurance carrier has requested a medical examination of the petitioner under (h) above, the judge shall hold a hearing on the merits of the motion for emergent medical care as soon as is practicable after the medical examination of the petitioner, but no later than five calendar days from the date of the medical examination of the petitioner.

(p) With regard to the hearing on the merits of the motion for emergent medical care, the judge may require a continuous trial or may use other procedures to ensure that the motion is expeditiously heard.

(q) The judge hearing the motion for emergent medical care shall render a decision and issue an order on the motion within one business day of the conclusion of the trial testimony.

(r) The judge may supplement the decision and order rendered under(q)above at a later date.

(s) If a motion for emergent medical care does not meet the requirements under this section, but does meet the requirements for a general motion for temporary and/or medical benefits under N.J.A.C. 12:235-3.3, the motion shall be listed and proceed as a general motion for temporary and/or medical benefits.

12:235-3.4 Insurance carrier or self-insured employer contact person procedures pursuant to N.J.S.A. 34:15-15.4

(a) Every insurance carrier providing workers' compensation insurance and every workers' compensation self-insured employer shall designate a contact person who is responsible for responding to issues concerning medical and temporary disability benefits where no claim petition has been filed or where a claim petition has not been answered.

(b) The contact person referred to in (a) above shall also receive notice of motions for emergent medical care under N.J.A.C. 12:235-3.3.

(c) The full name, telephone number, mailing address, e-mail address and fax number of the contact person referred to in (a) above shall be submitted to the Division utilizing the Division's contact person form in the manner instructed on the form.

(d) The Division's contact person form shall be made available on the Division's website and at the Division's district offices.

(e) Any changes of contact person or in information about the contact person shall be immediately submitted to the Division using the Division's contact person form.

(f) After an answer to a claim petition has been filed, the attorney of record for the respondent shall be the point of contact for issues concerning temporary disability and/or medical benefits.

(g) A contact person roster using the information provided under (c) above will be available on the Division's website.

(h) Failure to comply with the requirements of N.J.S.A. 34:15-15.4 or this section shall result in a fine of $2,500 for each day of noncompliance, which fine shall be payable to the Second Injury Fund.

1. The Division shall send notice of noncompliance and of the fine amount by certified mail, return receipt requested, to the business address of the insurance carrier or self-insured employer.

2. The insurance carrier or self-insured employer shall have 30 calendar days to pay the fine or to contest the fine.

3. Where the insurance carrier or self-insured employer contests the fine, the Division shall hold a conference in an attempt to resolve the dispute.

Recodify existing N.J.A.C. 12:235-3.3 through 3.13 as 3.5 through 3.15 (No change in text.)

12:235-3.16 Enforcement

(a) A party may, by written motion pursuant to N.J.A.C. 12:235-3.5(a) and (b), move against an employer, insurance carrier, petitioner, case attorney or any other party to a claim petition for enforcement of any court order or for the enforcement of the requirements of the workers' compensation statute or rules.

(b) The motion under (a) above shall identify the order, statute or regulation sought to be enforced.

(c) The party against whom the motion has been brought shall file a written response to the motion within 14 calendar days of the notice of motion.

(d) The response under (c) above shall include the reasons for any noncompliance and the manner and time period to ensure compliance.

(e) Any time after the 14-day period to respond under (c) above has elapsed and on notice to the parties, the judge shall hold a hearing on the motion.

(f) A judge on his or her own motion may at any time, upon notice to the affected parties, move to enforce a court order or to enforce the requirements of the workers' compensation statute or rules.

(g) Prior to ruling on a motion under (f) above, the judge shall provide the parties an opportunity to respond to the motion and to be heard on the record.

(h) Upon a finding by a judge of noncompliance with a court order or the workers' compensation statute or rules, the judge, in addition to any other remedy provided by law, may take any or all of the following actions:

1. Impose costs and simple interest on any monies due.

i. The judge may impose an additional assessment not to exceed 25 percent on any moneys due if the judge finds the payment delay to be unreasonable;

2. Levy fines or other penalties on parties or case attorneys in an amount not to exceed $5,000 for unreasonable delay or continued noncompliance.

i. A fine shall be imposed by the judge as a form of pecuniary punishment.

ii. A penalty shall be imposed by the judge to reimburse the Division's administrative costs.

iii. The proceeds under this paragraph shall be paid into the Second Injury Fund;

3. Close proofs, dismiss a claim or suppress a defense as to any party;

4. Exclude evidence or witnesses;

5. Take other appropriate case-related action to ensure compliance; and/or

6. Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.

(i) Upon a finding by a judge of noncompliance by a party with a court order or the workers' compensation law or rules, the judge, in addition to any other remedy provided by law, may hold a separate hearing on the issue of contempt.

(j) Following a hearing under (i) above and upon a finding by the judge of contempt, the successful party in the contempt hearing or the judge may file a motion with the Superior Court for contempt action.

(k) Any fine, penalty, assessment or cost imposed by a judge under this section shall be paid by the entity or party found to be in noncompliance and shall not be included in the expense base of an insurance carrier for the purpose of determining rates or as a reimbursement or case expense.

Recodify existing N.J.A.C. 12:235-3.15 and 3.16 as 3.17 and 3.18 (No change in text.)

SUBCHAPTER 7. UNINSURED EMPLOYER'S FUND

12:235-7.1 Purpose; scope

(a)-(d) (No change.)

(e) A petitioner may move to relax or dispense with requirements under this subchapter.

1. After a hearing on the motion to relax or dispense with requirements under this subchapter, the judge may grant the motion upon a finding that the subject requirements under the particular facts of the case are unduly burdensome and that grant of the motion would not adversely affect the UEF.

(f) Where petitioner seeks current medical treatment and/or temporary disability benefits and the only issue is the cancellation or non-renewal of an insurance policy, the judge may order the insurance carrier to provide treatment and/or benefits without prejudice and subject to reimbursement by the employer or, if not paid by the employer, by the UEF, if it is subsequently determined that the policy was not in effect.

(g) (No change in text.)

12:235-7.4 Medical bills; physician's examination

(a) Any medical bills or charges for which petitioner seeks payment from the UEF must be timely submitted by the petitioner to the UEF and be supported by the following:

1. Related treating records, itemized bills and a physician's report, which reflects that the bills and charges were reasonable, necessary and causally related to the work accident or occupational exposure alleged in the claim petition; and

2. Other necessary medical documentation or information required by the UEF.

(b) Any dispute under this section concerning the treating records, bills, physician's report or UEF request for other medical documentation or information shall be determined by the judge after a hearing upon oral or written motion by the UEF or another party.

Recodify existing (b)-(e) as (c)-(f) (No change in text.)

For more information concerning medical care and workers’ compensation click here.

Guidelines for Medical Provider Claims - A Valuable Approach

While the vast majority of jurisdictions in the US have the guidance of mandatory workers' compensation medical fee schedules, New Jersey remains one of the very few with no such structure. As I reported earlier, this generates multiple issues in the claims process and creates costly delays in the adjudication of disputes.

Six-Year Statute of Limitations Governs Medical Claims

In a landmark decision the NJ Court of Appeals held that medical provider claims for expenses in workers’ compensation claims are subject to a contractual six-year statute of limitations. The ruling will have a major impact upon the overburdened state’s Division of Workers’ Compensation (NJDWC) system.

The NJDWC is already recognizing a soaring number of medical expense disputes and it lacks a standardized adjudication process. The Legislature should establish a medical fee schedule and create a separate alternate dispute resolution (ADR) system to adjudicate the medical provider claims.

NJ Supreme Holds Employers Responsible for Workers' Compensation Medical Marijuana Costs

The NJ Supreme has recognized that the workers’ compensation system has a legislative mandate to provide the safest medical care to cure and relieve occupational injuries. The Court acknowledged both state and Federal trends to provide non-addictive and non-fatal pain relief in place of the dangerous opioids. 

 

The intent that embraced the creation and development of the social insurance system has given the Court a rational and logical basis, consistent with public policy, to order medical marijuana for palliative care.

AMA Urges Trump Administration to Clarify Immigration Executive Order

A major element of workers' compensation benefits is medical treatment and that will be impacted the Donald Trump's recent ban on immigration. An adequate number of physicians must be available to provide medical care to cure and relieve  a work related medical condition. The American Medical Association (AMA) sent the following letter today to the U.S. Department of Homeland Security regarding the Administration’s executive order issued last week,“Protecting the Nation from Foreign Terrorist Entry into the United States:”

Medical Providers Prohibited From Reporting to Credit Agencies

NJ Governor Murphy has signed legislation (S.3036) that prohibits a provider to an injured worker of medical, surgical, other treatment, or hospital service pursuant to the workers' compensation law, R.S.34:15-1 et seq., from reporting any portion of their charges which are alleged to be unpaid, to any collection or credit reporting agency, bureau, or data collection facility.

Medical Marijuana and the Supremacy Clause

“Change is the law of life. And those who look only to the past or present are certain to miss the future.” -John F. Kennedy

An unsettled area of the law has emerged between, the widespread adoption by the states to permit prescribed marijuana to relieve certain medical conditions and the strict federal law mandating the substance as a Schedule 1, Controlled Substance [CSA]. With an estimated 43.3 million Americans using the elicited drug, and the challenges of the “opioid epidemic” creating massive addiction and fatal results, the nation’s workers’ compensation system has been challenged to provide adequate authorized medical treatment.

Just Go to The Emergency Room

Emergency room medicine is becoming an easy avenue for work-related medical care as employers and insurance carriers keep restricting traditional medical care access. Over the past decades it is becoming increasingly difficult for workers who have suffered occupational accidents or diseases to obtain quick, efficient and authorized diagnostic services and medical treatment.

A recent RAND study now validates that an alternate route is increasingly being used to access the medical care system, the emergency room. Few restrictions exists to enter an emergency room door. The red tape imposed by insurance carriers is eliminated, and the concept of deny and delay are non-existent in emergency room medicine.

Hospital emergency departments play a growing role in the U.S. health care system, accounting for a rising proportion of hospital admissions and serving increasingly as an advanced diagnostic center for primary care physicians, according to a new RAND Corporation study.

While often targeted as the most expensive place to get medical care, emergency rooms remain an important safety net for Americans who cannot get care elsewhere and may play a role in slowing the growth of health care costs, according to the study.

Emergency departments are now responsible for about half of all hospital admissions in the United States, accounting for nearly all of the growth in hospital admissions experienced between 2003 and 2009.

Despite evidence that people with chronic conditions such as asthma and heart failure are visiting emergency departments more frequently, the number of hospital admissions for these conditions has remained flat. Researchers say that suggests that emergency rooms may help to prevent some avoidable hospital admissions.

"Use of hospital emergency departments is growing faster than the use of other parts of the American medical system," said Dr. Art Kellermann, the study's senior author and a senior researcher at RAND, a nonprofit research organization. "While more can be done to reduce the number of unnecessary visits to emergency rooms, our research suggests emergency rooms can play a key role in limiting growth of preventable hospital admissions."

Law to Ban Medical Expense Claims Proposed

Legislation (A-2652) [introduced May 10, 2012] has been proposed in NJ that would ban charging workers’ compensation claimants for medical expenses and gives the Division of Workers’ Compensation sole jurisdiction over work-related medical claims. The law would be a positive initiative for all parties as it will subject medical provider claims to an exclusive remedy and consolidate the claims before a single administrative agency for resolution.


The legislation will be the subject of consideration by the NJ Assembly Labor Committee on Monday, May 14, 2012.


Click here to read: Clearing the Workers' Compensation Benefit Highway of Medical Expense Land Mines

By John H. Geaney and Jon L. Gelman
"Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement."


Statement of the Bill

"This bill prohibits the charging of workers’ compensation 
claimants for medical expenses that have been authorized by the 
employer or its carrier or its third party administrator, that have 
been paid by the employer, its carrier or third party administrator 
pursuant to pursuant to the workers’ compensation law, or which 
been determined by the Division of Workers’ Compensation to 
be the responsibility of the employer, its carrier or third party 
administrator.  The bill gives the division sole jurisdiction over 
disputed work-related medical claims, and directs the division to 
provide procedures to resolve those disputes, including procedural 
requirements for medical providers or any other party to the 
dispute.  Finally, the bill provides that the treatment of an injured 

worker or the payment of workers’ compensation to an injured 

worker or dependent of an injured or deceased worker shall not be 
delayed because of a claim by a medical provider. "


Further Reference:
NJ Task Force Report on Medical Provider Claims
"During our meetings, it came to the attention of the Task Force that “balance billing” is a 
problem. This is the practice wherein authorized medical providers accept fees paid by the
carrier and then issue a bill to the petitioner for any remaining balance. In an effort to eradicate
this practice, the Task Force recommends an amendment to N.J.S.A. 34:15-15. Section 15 of the
Act requires that employers furnish and pay for physicians, surgeons and hospital services for the
injured worker. Having reviewed the statute and the case law, the Task Force believes that there
is a need to clarify that balance billing in the workers’ compensation setting is inappropriate.

Accordingly, the Task Force recommends the following amendment to N.J.S.A. 34:15-15 which
we would propose would appear as a paragraph between the final two paragraphs of that section.

This additional language would read as follows:
“Fees for treatments that have been authorized by the employer or
its carrier or its third party administrator, or which have been
determined by the court to be the responsibility of the employer, its
carrier or third party administrator, shall not be charged against or
collectible from the injured worker. Sole jurisdiction for any
disputed medical charge arising from a workers’ compensation
claim shall be vested in the Division of Workers’ Compensation.”

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• Facebook, Organ Donations and Medical Privacy of Workers' Compensation (workers-compensation.blogspot.com)
• Trending: Opting-Out of Workers' Compensation (workers-compensation.blogspot.com)
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NJ Governor Murphy Signs Executive Order Mandating Review of Medical Marijuana Policy

NJ Governor Phil Murphy today signed an Executive Order directing the New Jersey Department of Health and the Board of Medical Examiners to review the state’s existing medical marijuana program. The goal of the review is to eliminate barriers to access for patients who suffer from illnesses that could be treated with medical marijuana.

The Health Reform Act Charts a New Course for Occupational Health Care

The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs  will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

The legislation initially establishes a program for the identification, monitoring and treatment of those who were exposed to asbestos in Libby Montana where W.R. Grace formerly operated an asbestos (vermiculite) mine producing, among other things, attic insulation. The plant belched thousands of pounds of asbestos fiber into the air of the geographical area daily. Libby Montana has been declared a Federal Superfund Site and the asbestos disease that remains as its legacy has been declared a National Public Health Emergency.

The newly enacted national health care law will have profound effect upon the treatment of occupational disease.  Placed deep within the text of the bill (H.R. 3590), on page 836 (Section 1881A Medical Coverage for Individuals Exposed to Environmental Health Hazards), is the new occupational medical care model, “Libby Care.”  The Manager’s Amendment, embracing the concept of universal occupational health care, inserted in the final moments of the debate, will make all the difference in world to the future of medical care and the handling of work-related illnesses.

What We Learned From History

Historically it is well known that occupational diseases are problematic issues confronting workers’ compensation.They are problematic for all stakeholders in the system. For employers, it is difficult to defend a claim that may occur over a lengthy working period, ie. 280 days per year. Defending occupational disease claims has always been an elusive and a costly goal for employers and insurance carriers. Employees also are confronted with obstacles in obtaining timely medical benefits. Occupational disease claims are universally contested matter and medical care is therefore delayed until the claim is successfully litigated and potentially appealed. This process results in delay and denial of medical care and sometimes death.

In the 1950’s the insurance industry put tag-along verbiage in the statute to modify the 1911 workers’ compensation act to encompass occupational disease claims. This was not a philanthropic gesture, but one rather intended to shield Industry from rapidly spreading silicosis liability in civil actions emerging in the 1950s.

Over time, the failure of the workers’ compensation system to provide adequate medical care to injured workers suffering from occupational illness has given rise to the emergence of several attempted collateral benefit systems by the Federal government. The Black Lung Act-The Federal Coal Mine and Safety Act of 1969 established the Federal Black Lung Trust Fund, which obtained its revenue from the assessment of a percentage tonnage fee imposed on the entire Industry. In October 2000, the Federal government established The Energy Employees Occupational Compensation Program Act that provided a Federal bailout of liability for the monopolistic beryllium industry. The hastily enacted Smallpox Emergency Personnel Protection Act of 2003 (SEPA) shielded pharmaceutical manufacturers from liability.  Following the horrific events of September 11, 2001, the Federal government quickly established The Victims Compensation Fund to compensate the victims and their families through an administrative system.

The largest transfer of economic wealth in the United States from Industry to the private sector, other than in the Attorney General’s thirty-eight State tobacco litigation, emanated from asbestos litigation which had its geneses in workers’ compensation.   The late Irving Selikoff, MD’s pioneering efforts in providing expert testimony, based upon his sentinel studies of asbestos workers in Paterson, NJ, created the trigger mechanism for a massive wave of claims for occupational health care. The program never did adequately nor efficiently or expeditiously provide medical care.

The workers’ compensation system did not provide an adequate remedy because of a constellation of reasons, and subsequently, the wave spread to civil litigation out of desperation for adequate benefits. Asbestos litigation has been named, "The Longest Running Tort” in American history. While the Fairness in Asbestos Resolution Act of 2003, failed to be release from committee, the insurance industry tried to stifle the litigation but the effort failed.  Asbestos litigation expanded into  bankruptcy claims that continue unabated and the epidemic of disease continues. The remaining cases in the Federal court system were transferred to Federal Multi District Litigation (MDL 875) and the majority are finally concluding after twenty years of Panel consolidation. Medical benefits were not a direct component of that system. Unfortunately, asbestos is still not banned in the United States and the legacy of disease continues at historic rates.

The Costs

In a study prepared in 2000 by Dr. Steven Markowitz for a book entitled “Cost of Occupational Injuries  and Illnesses”, it was revealed that the direct medical costs attributed to occupation illness by taxpayers, amount to $51.8 Billion dollars per year for the hospital physicians and pharmaceutical expenses. Overall workers’ compensation is covering 27% percent of the cost. This amounts to 3% of the National Gross National Product. The cost is passed on to: employers, insurance carriers, consumers, injured workers and the taxpayer. Medicare, a target of the cost shifting mechanism employer by Industry, continues its “pay and chase” policy in an effort to seek reimbursement under the Medicare Secondary Payer Act. All the stakeholders and the compensation systems have become increasingly bogged down as cost-shifting continues by Industry. The workers' compensation claims process has become stagnant. 

Reportable Data A Questionable Affair

The quantification of occupational illness data has been very problematic as it is based on sources of questionable reliability. The US Bureau of Labor Statistics (BLS) based its collection on employer driven safety reporting, ieNCCI), keeps its data and procedures under wraps.

Both the NY Times and Nebraska Appleseed have reported that there exists underreporting of occupational disease conditions in epic proportions. They report that the elements of fear and intimidation directed to injured workers compound the defense attitude of employers and the insurance industry resulting in a massive underreporting of occupationally related medical conditions.

Increased Hurtles for Compensability

There have been attempts over the years to integrate more claims statutorily into the workers’ compensation system to shield employers from civil action and resultant large liability verdicts. This resulted in a flood of occupational exposure claims into the workers’ compensation arena. An effort in the mid-1980’s, following the asbestos litigation explosion, was by Industry to contain costs and restrict the payment of occupational disease claims even further in the workers’ compensation.

The initial effort was to create higher threshold standards and requirements in the area of mental stress claims. That was quickly followed by efforts to limit orthopedic and neurological carpal tunnel claims.  Restrictive language interpreting what is peculiar to employment further limited all occupational disease claims.

Furthermore, scientific evidence proof requirements became increasingly difficult to surmount. Daubert type arguments emerged by the defense in the nations’ workers’ compensation forums where simplicity of a remedial and efficient benefit delivery program had existed in the past. Where a biological marker was not present, as was in asbestos exposure claims, the establishment of causal relationship was universally challenged.

Pre-existing and co-existing factors soon became other hurtles for injured workers and their families.  Medical histories of orthopedic difficulties such as back conditions soon complicated repetitive motion trauma litigation. Co-existing and pre-existing smoking habits, family genetics and obesity were yet another obstacle to recovery.

Societal Habits Changed

Life and the way we look at work have changed dramatically with the onset of technology. Off-premises work is becoming more and more common with the advent of Internet access and economic globalization. Defining the barriers between work and pleasure has grown to be exceedingly difficult.

People are working harder and longer. More chronic conditions are prevalent in older workers. Disease increases with age and results in more total disability claims.

Occupational Medical Costs

The compensability of occupational claims is much more difficult to sustain in court. In recent studies over 99.9% of occupational deaths and 93.8% of the medical costs of occupational disease were held to be non-compensable. Over 50% of the lifetime medical costs are incurred during the last year of one’s life.

The Legacy of The Libby Montana Gold Rush

In 1881 gold miners discovered vermiculite, a form of asbestos in Libby, Montana. In 1920 The Zonolite Company was established and began to commercially mine vermiculite. W.R. Grace bought the mining operations in 1963. In 1990 the mine was closed and production ended.

For decades W.R. Grace belched over 5,000 pounds of asbestos into the air in and around Libby on a daily basis. The residents who worked at the plant and their families and household contacts were exposed to asbestos fiber.  Mineworkers brought home the asbestos on their clothing. The unknowing inhabitants and their families  used the asbestos to fill their gardens, their driveways, the high school track, the little league field and in their attics for insulation.

The US Environmental Protection Agency (EPA) visited Libby in 1999 and investigated the incidence of disease and the contamination of the site. The EPA declared Libby a Superfund site in October 2002 and a physical clean-up began of the geographical area. The question of who would pay for the medical care of Libby remained an unknown.

A Manager’s Amendment

Senator Max Baucus (D-MT), Chair of the Senate Finance Committee, utilizing a mechanism known as “A Manager’s Amendment,” at the last moment, modified the Senate’s version of the Health Care Reform Bill. The Patient Protection and Affordable Care Act passed the Senate, ultimate cleared the House and was signed into law by President Obama on March 23, 2010. Section 10323, Medicare Coverage for Individuals Exposed to Environmental Health Hazards, 2009 Cong US HR 3590, 111^th Congress, 1^st Session (December 31, 2009).

Senator Bacus said,  “This provision is important because it will provide vital medical services to American who—through no fault of their own—have suffered horrible effects from their exposure to deadly poisons. It will provide vital medical services we owe these Americans under our commitment in the Superfund Act.”  The amendment initially provides for screening and medical care to residents of the Libby Montana asbestos contaminated site that was owned and operated by W.R. Grace. It essentially provides for universal health care.

“Libby Care” Is The New Occupational Medical Care Model Legislation

The Libby site qualified for the medical program because the hazardous asbestos contaminated site in Libby was deemed to be “a public health emergency” on June 17, 2009 as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). While there are 1700 designated Superfund sites, Libby is the first site in the history of the program that has been designated as “a public health emergency.” The program may be expanded in adopted to other communities at the discretion of the Secretary of of the Department of Health and Human Services (HHS). 

The plan authorizes a grant for initial medical screening purposes. The screening would determine if a medical condition is present that is attributable to the environmental exposure. It allows those individuals with a diagnosed medical condition due to the environmental exposure at the site to get Medicare services. The Secretary of the Department of HHS may establish additional pilot programs to provide additional medical care appropriate for the residents of contaminated communities so designated. The delivery of Medicare medical benefits will be directed to those “who have suffered horrible effects from their exposure to deadly poisons.”

The purpose of the legislation is  “…. to furnish such comprehensive, coordinated and cost-effective care to individuals…..” p2224 l3-1. It mandates the furnishing of “Flexible Benefits and Services,” for items, benefits or services NOT covered or authorized by the Act. It further authorizes the institution of “Innovative Reimbursement Methodologies,” for reimbursement subject to offsets for individuals “eligible to receive public or private plan benefits or legal agreement.” p2226 ll8-11. The Secretary of HHS will maintain “waiver authority.”

Charting A New Course

After a century of struggle, the United States now embarks upon a new course for occupational medical care. The law charts a new path for the delivery of  occupational disease medical benefits on a timely basis. It will permit researchers an avenue for the collection of epidemiological data so that the workplace can be made safer. All will benefit. The innovative legislation provides for a long awaited and much needed initiative to provide an efficient, responsive and coordinated treatment plan and preventive health program that hopefully will expand and will vastly improve occupational health care.

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