The American Insurance Association (AIA) and collateral Industry groups have banned together in a formal attempt to avoid the Federal mandate to reimburse Medicare for conditional medical payments. This is yet a third assault on the responsibility of employers to avoid payment of medical treatment of injured workers and shift the burden upon the ailing and financially strapped Medicare. Two prior legislative attempts to modify the Medicare Secondary Payer Act (MSP) have failed.
The proposal is embraced in recently introduced HR4796. It is an attempt to modify the Medicare Secondary Payment Act by reducing conditional payment responsibilities of Industry.
In the past, failures in the enforcement of reimbursement practices were highlighted in various investigative reports. Since the reporting of those failures, the Centers for Medicare and Medicaid Services (CMS) have enhanced its efforts to seek reimburse. The US Congress has also imposed compulsory employer/insurance carrier reporting requirements.
Recent studies presented at the National Association of Social Insurance (NASI) disclosed that the majority of conditional payment issues arise in occupational claims which traditionally are denied compensability initially by insurance carriers.
A proposal was made at the NASI meeting to provide more effective and efficient delivery of medical care to injured workers. It was suggested that medical coverage in occupational disease claims become the initial responsibility of US Medicare system who then could seek indemnification from insurance carriers and others who may be ultimately responsible. A pilot plan for this type of health care was embodied in the US Senate passed health care legislation.
Click here to read more about health care and workers' compensation.
Saturday, March 13, 2010
NJ Mandates Proof of Insurance Coverance
The NJ Division of Workers' Compensation has clearly mandated that claimants have the burden of proving insurance coverage. In a memorandum letter issued by the Director/Chief Judge, injured workers and their representatives were advised that failure to have evidence of proof of coverage will result in a dismissal of the insurance carrier as a party to the claim petition. Dismissal will be effectuated administratively, without the need of the filing of a formal notice motion by the improperly named party.
"A earner is not required to prove the negative that the carrier did not cover a respondent. It is helpful if the carrier can provide information from CRIB or other sources as to the correct carrier if the respondent is insured. However, the petitioner must provide some sufficient basis for listing a carrier and keeping the carrier in the case if the petitioner objects to the dismissal as to carrier."
Click here to read more about insurance coverage and workers' compensation.
"A earner is not required to prove the negative that the carrier did not cover a respondent. It is helpful if the carrier can provide information from CRIB or other sources as to the correct carrier if the respondent is insured. However, the petitioner must provide some sufficient basis for listing a carrier and keeping the carrier in the case if the petitioner objects to the dismissal as to carrier."
Click here to read more about insurance coverage and workers' compensation.
NJ Unemployment Worse Than Previously Estimated
NJ has released revised statistics reflecting than 2009 unemployment rates were worse than previously reported.
"New Jersey employers continued to trim payrolls in January as total employment fell by 9,100 jobs over the month. The state's unemployment rate for January fell by 0.1 percentage point to 9.9 percent. The national rate was 9.7 percent for the month.
"In addition, the results of the annual benchmarking adjustment process - conducted each year at this time by every state - showed that the previously announced seasonally adjusted job loss from December 2008 to December 2009 of 90,100 was revised lower to reflect a loss of 114,100 jobs. New Jersey's over-the-year percentage loss of -2.9 percent was slightly better than the nation's -3.6 percent loss (-4.8 million jobs). Moreover, during the recession, December 2007 - December 2009, New Jersey has lost 228,300 jobs (-5.6% vs 6.1% nationally).
"Labor force estimates also were revised for 2009 and the state's revised 2009 unemployment rate averaged 9.2 percent, fluctuating within a wide range of 7.3 to 10.0 percent. The nation's unemployment rate averaged 9.3 percent in 2009.
Click here to read more about workers' compensation and economic recessions.
"New Jersey employers continued to trim payrolls in January as total employment fell by 9,100 jobs over the month. The state's unemployment rate for January fell by 0.1 percentage point to 9.9 percent. The national rate was 9.7 percent for the month.
"In addition, the results of the annual benchmarking adjustment process - conducted each year at this time by every state - showed that the previously announced seasonally adjusted job loss from December 2008 to December 2009 of 90,100 was revised lower to reflect a loss of 114,100 jobs. New Jersey's over-the-year percentage loss of -2.9 percent was slightly better than the nation's -3.6 percent loss (-4.8 million jobs). Moreover, during the recession, December 2007 - December 2009, New Jersey has lost 228,300 jobs (-5.6% vs 6.1% nationally).
"Labor force estimates also were revised for 2009 and the state's revised 2009 unemployment rate averaged 9.2 percent, fluctuating within a wide range of 7.3 to 10.0 percent. The nation's unemployment rate averaged 9.3 percent in 2009.
Click here to read more about workers' compensation and economic recessions.
Thursday, March 11, 2010
NYC Settles 9-11 Rescue Workers' Suit for $657.5 Million
The read more about 9-11 claims click here.
Tuesday, March 9, 2010
Citing Violations Medicare Ends Contract with Fox Insurance Company Drug Plan
The Centers for Medicare and Medicaid Services has issue an announcement of the immediate termination of Fox Insurance Company.
Members Will Be Provided Access to Drugs While Transitioning to New Plans.
The Centers for Medicare & Medicaid Services (CMS) today terminated its contract with Fox Insurance Company. After an onsite review of the plan and its services, CMS determined that the plan’s significant deficiencies – not meeting Medicare’s requirements to provide enrollees with prescription drugs according to recognized standards of care – jeopardized the health and safety of Fox enrollees. CMS found that Fox committed a series of violations, including improperly denying its enrollees coverage of critical HIV, cancer, and seizure medications. The termination of the contract is effective immediately.
The immediate termination will not impact or delay access to drugs for the more than 123,000 Medicare beneficiaries currently enrolled in Fox plans. Beginning tomorrow, all enrollees will obtain their drugs through LI-NET, a program run by Medicare and administered by Humana, to ensure that beneficiaries receive their Medicare prescription drugs. Fox enrollees will be able to choose a new Medicare prescription drug plan through May 1, 2010. Current enrollees who do not choose a plan will be enrolled into a new plan by Medicare.
Members Will Be Provided Access to Drugs While Transitioning to New Plans.
The Centers for Medicare & Medicaid Services (CMS) today terminated its contract with Fox Insurance Company. After an onsite review of the plan and its services, CMS determined that the plan’s significant deficiencies – not meeting Medicare’s requirements to provide enrollees with prescription drugs according to recognized standards of care – jeopardized the health and safety of Fox enrollees. CMS found that Fox committed a series of violations, including improperly denying its enrollees coverage of critical HIV, cancer, and seizure medications. The termination of the contract is effective immediately.
The immediate termination will not impact or delay access to drugs for the more than 123,000 Medicare beneficiaries currently enrolled in Fox plans. Beginning tomorrow, all enrollees will obtain their drugs through LI-NET, a program run by Medicare and administered by Humana, to ensure that beneficiaries receive their Medicare prescription drugs. Fox enrollees will be able to choose a new Medicare prescription drug plan through May 1, 2010. Current enrollees who do not choose a plan will be enrolled into a new plan by Medicare.
“The immediate termination of Fox as a Medicare prescription drug plan demonstrates our commitment to protecting the health of some of their most vulnerable enrollees from getting necessary drugs, in some cases life-sustaining medicines. CMS’s immediate action was essential to protect members’ health and safety – an integral part of our contract with all Medicare beneficiaries,” said Jonathan Blum, acting director of CMS’ Center for Drug and Health Plan Choices. “Fox enrollees also need to know that they are not losing their drug coverage and will continue to have access to needed medicines. We will be sending letters explaining the steps we are taking to ensure they continue to get their medicines. They can also call 1-800-MEDICARE or their local state health insurance assistance programs if they have questions.”
CMS issued an enrollment and marketing sanction to Fox on Feb. 26, 2010, because the organization was not following Medicare’s rules for providing prescription drug coverage to its enrollees. After an onsite audit, which ran between March 2 and March 4, CMS found Fox’s problems persisted and it continued to subject its enrollees to obstacles in getting needed and, in many cases, life–sustaining medicines. CMS also found that many of the obstacles were in place to limit access to high-cost drugs, which could have led to enrollees’ clinical needs not being met. In many cases, Fox enrollees were required to have unnecessary and invasive medical procedures before they were able to obtain drugs. Fox was unable to satisfactorily address these compliance concerns and furnish medicines to its Medicare enrollees.
Among the audit findings CMS found include:
· Failing to provide access to Medicare prescription drugs benefits by imposing unapproved prior authorization and step therapy criteria that made it more difficult for beneficiaries to get drugs that are protected by law.
· Not meeting the plan’s appeals deadlines,
· Not complying with Medicare regulations requiring enrollees to be transitioned to new drugs at the beginning of the new plan year.
· Failing to notify enrollees about prior authorization and step therapy determinations as required by Medicare.
According to CMS auditors, Fox was unable to satisfactorily address compliance concerns cited in the enrollment and marketing sanction and meet contractual obligations to provide medicines to Medicare beneficiaries enrolled in their plans.
“We take our oversight role of Medicare prescription drug plans seriously,” said Blum. “We review and take action on all complaints received about Medicare health and drug plans and will take appropriate and immediate actions wherever necessary.”
CMS encourages Medicare prescription drug plan enrollees having concerns with access to drug coverage to contact 1-800-MEDICARE (1-800-633-4227) or the state health insurance assistance program (SHIP) to help get them resolved. Medicare enrollees, their families and their caregivers can contact a SHIP near them by visiting:http://www.medicare.gov/Contacts/staticpages/ships.aspx
# # #
NOTE: States in which the Fox plan was available were: Arkansas, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Missouri, North Carolina, New Jersey, New York, Nevada, Ohio, Pennsylvania, South Carolina, Texas and West Virginia.
CMS issued an enrollment and marketing sanction to Fox on Feb. 26, 2010, because the organization was not following Medicare’s rules for providing prescription drug coverage to its enrollees. After an onsite audit, which ran between March 2 and March 4, CMS found Fox’s problems persisted and it continued to subject its enrollees to obstacles in getting needed and, in many cases, life–sustaining medicines. CMS also found that many of the obstacles were in place to limit access to high-cost drugs, which could have led to enrollees’ clinical needs not being met. In many cases, Fox enrollees were required to have unnecessary and invasive medical procedures before they were able to obtain drugs. Fox was unable to satisfactorily address these compliance concerns and furnish medicines to its Medicare enrollees.
Among the audit findings CMS found include:
· Failing to provide access to Medicare prescription drugs benefits by imposing unapproved prior authorization and step therapy criteria that made it more difficult for beneficiaries to get drugs that are protected by law.
· Not meeting the plan’s appeals deadlines,
· Not complying with Medicare regulations requiring enrollees to be transitioned to new drugs at the beginning of the new plan year.
· Failing to notify enrollees about prior authorization and step therapy determinations as required by Medicare.
According to CMS auditors, Fox was unable to satisfactorily address compliance concerns cited in the enrollment and marketing sanction and meet contractual obligations to provide medicines to Medicare beneficiaries enrolled in their plans.
“We take our oversight role of Medicare prescription drug plans seriously,” said Blum. “We review and take action on all complaints received about Medicare health and drug plans and will take appropriate and immediate actions wherever necessary.”
CMS encourages Medicare prescription drug plan enrollees having concerns with access to drug coverage to contact 1-800-MEDICARE (1-800-633-4227) or the state health insurance assistance program (SHIP) to help get them resolved. Medicare enrollees, their families and their caregivers can contact a SHIP near them by visiting:http://www.medicare.gov/Contacts/staticpages/ships.aspx
# # #
NOTE: States in which the Fox plan was available were: Arkansas, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Missouri, North Carolina, New Jersey, New York, Nevada, Ohio, Pennsylvania, South Carolina, Texas and West Virginia.
US Supreme Court to Review Employee Privacy Issues
The US Supreme Court has granted certiorari in a case involving the application of the constitutional right to informational privacy to an employee questionnaire. NASA, et al. v. Nelson, Robert M., et al. No. 09-530, March 8, 2010.
The Supreme Court will be reviewing a 9th Circuit Court of Appeals decision involving contract employees of the Jet PropulsionLaboratory (JPL) who filed suit against the National Aeronautics and Space Administration (NASA) and others. The suit claims that contract employees in non-sensitive or “low risk” positions should not be required to submit to in-depth background investigations.
The Circuit Court below held:
We have repeatedly acknowledged that the Constitution protects an “individual interest in avoiding disclosure of personal matters.” In re Crawford, 194 F.3d 954, 958 (9th Cir.1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information,Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in “an era of rampant identity theft”). If the government's actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.” Crawford, 194 F.3d at 959 (internal quotation marks omitted). We must “balance the government's interest in having or using the information against the individual's interest in denying access,” Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir.1991), weighing, among other things:
“the type of [information] requested, ... the potential for harm in any subsequent nonconsensual disclosure, ... the adequacy of safeguards to prevent unauthorized*878 disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information and each presents a ripe controversy."
".....The balance of hardships tips sharply toward Appellants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be retroactively compensated for any temporary denial of employment. It is true that “monetary injury is not normally considered irreparable,” L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir.1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. "
The Supreme Court will be reviewing a 9th Circuit Court of Appeals decision involving contract employees of the Jet PropulsionLaboratory (JPL) who filed suit against the National Aeronautics and Space Administration (NASA) and others. The suit claims that contract employees in non-sensitive or “low risk” positions should not be required to submit to in-depth background investigations.
The Circuit Court below held:
We have repeatedly acknowledged that the Constitution protects an “individual interest in avoiding disclosure of personal matters.” In re Crawford, 194 F.3d 954, 958 (9th Cir.1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information,Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in “an era of rampant identity theft”). If the government's actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.” Crawford, 194 F.3d at 959 (internal quotation marks omitted). We must “balance the government's interest in having or using the information against the individual's interest in denying access,” Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir.1991), weighing, among other things:
“the type of [information] requested, ... the potential for harm in any subsequent nonconsensual disclosure, ... the adequacy of safeguards to prevent unauthorized*878 disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information and each presents a ripe controversy."
Commercial Driver Fatigue Questioned as a Pre-exisiting Condition?
Falling asleep at the wheel is a common cause of accidents for commercial drivers. The Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation is exploring the issue that such conditions as excessive daytime sleepiness should be evaluated by medical examination in an effort to predict future probabilities of having a bad day at the wheel and potential crashes at the wheel because of sleepiness.
If a sleep disorder can be identified and documented, that condition maybe determined to be a pre-exisiting medical condition. Apart from the third party liability that could be imposed upon an employer for identification and non-identification of the medical condition, the issue of an allocation for a pre-exisitng medical conditions (prior-functional credit) may exist in a workers' compensation claim as well as an event that can be attributed to a risk in the course of employment.
The term "prior functional credit" refers to the credit given to the employer, or to the employer's insurance carrier, for the loss of function of any part of the body which an employee had sustained before a subsequent injury or occupational disease for which the employer in question is responsible. Over the years there have been dramatic changes enacted by the Legislature accompanied by varying interpretations by the courts with regard to the law addressing credits to be afforded to the employer for both non-work and work connected injuries.
The employer no longer takes an employee as they find them. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966). An individual suffered from asbestosis and bronchitis, and medical testimony was presented by the petitioner's expert apportioning a percentage of the functional loss to cigarette smoking. The employer was awarded a credit for the previous loss of function which could be attributed to the employee's cigarette smoking, since the legislatively enacted amendments permitted the employer to receive credit for an employee's prior loss of function involving the same body part affected by the compensable occupational disease regardless of whether compensation was received for the earlier injury. In effect, the employer no longer takes employees as it finds them. The court stated that the credit to employers for previous loss of function, whether work-related or not, was an incentive to encourage employers to hire workers with pre-existing disabilities. Field v. Johns-Manville Sales Corp., 209 N.J.Super. 528, 507 A.2d 1209 (App.Div.1986), certif. denied 105 N.J. 531, 523 A.2d 172 (1986); Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App.Div.1992).
Additional questions may arise as to whether the risk is actually associated with the employment. The Court may also evaluate the risk associated with the employment task in evaluating compensability. Where the risk was not enhanced by the business interests of the employer, and there was no exercise of control by the employer over the employee, the event is usually deemed to be non-compensable. If the risk in indeed removed from the course of employment then the employer may be denied the exclusivity bar and liability on the employer could be imposed in a civil action.
The FMCSA commented, "....measuring an individual’s sleepiness today is not going to predict how sleepy the person will be 6 weeks from now. Several factors influence sleepiness, including prior sleep time, medications, and time of day, so it is a very difficult thing to assess."
Click here to read more about "pre-exisiitng conditions" and workers' compensation.
Click here to read more about "pre-exisiitng conditions" and workers' compensation.
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