Revised CMS Implementation Timetable - Mandatory Reporting

Revised March 29, 2010

Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation (Non-GHP or NGHP):

Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (See 42 U.S.C. 1395y(b)(7)&(b)(8))

Revised Implementation Timeline

Note: “RRE” stands for “responsible reporting entity.” “COBSW” stands for “Coordination of Benefits Secure Web site.” “COBC” stands for CMS’ Medicare “Coordination of Benefits Contractor.”

• 05/01/2009

Electronic registration via the Section 111 COBSW began for all liability insurance (including self- insurance), no-fault insurance and workers’ compensation RREs (NGHP RREs) excluding foreign RREs.

• 07/01/2009

Test and production Query Input Files accepted for NGHP RREs that completed registration and are in a testing status (the RRE’s signed Profile Report has been received by the COBC).

• 01/01/2010 – 12/31/2010

Claim Input File testing period for all NGHP RREs.  

• 04/05/2010

Electronic registration commences via the Section 111 COBSW for foreign NGHP RREs (those that are based in countries outside the United States and have no Internal Revenue Service-assigned tax identification number and/or US mailing address).

• 01/01/2011 – 03/31/2011

All NGHP RREs must submit initial Section 111 Claim Input production files to the COBC according to assigned file submission timeframes for their RRE IDs.

• 04/01/2011

All NGHP RREs must be reporting production Claim Input Files on a quarterly basis by this date.

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At Home Injury Held Compensable

A truck driver who did maintenance on his vehicle at home on Sunday was allowed to recover benefits. The Court held that the injury occurred "within the course of the employment" even though the accident occurred off premises and not during normal work hours.


GUILLERMO CHAVERRI - v. CACE TRUCKING INCORPORATED -Respondent  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3619-07T23619-07T2 Decided March 30, 2010


Click here to read more about premises and off-premises claims under workers' compensation.

Ohio Upholds New Limits on Liability Actions Against Employers

The Ohio Supreme Court has upheld a 2005 statute that restricts an employee's direct liability actions against employers. The statute requires a showing that the employer deliberately intended to injury an employee. Employees remain restricted to the the Ohio workers' compensation remedy for recovery of benefits.

"As this court has often recognized, workers' compensation laws are the result of a unique mutual compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive reasonable compensation for their injury," Justice Robert Cupp wrote in one of the two opinions he authored. "Employers in turn give up common-law defenses but are protected from unlimited liability."

The issue was decided when the US District Court for the Northern District of Ohio certified constitutional questions to the Ohio Supreme Court.

Kaminski v. Metal & Wire Prods. Co. (Slip Opinion)

2008-0857

3/23/2010

3/23/2010

2010-Ohio-1027

Stetter v. R.J. Corman Derailment Servs., L.L.C. (Slip Opinion)

2008-0972

3/23/2010

3/23/2010

2010-Ohio-1029

Click here to read more about intentional actions and workers' compensation.

Putting a Value on Occupational Cancer Claims

Giving the sick the benefit of the doubt was the mantra the US District Court Judge charged with overseeing the settlement of 911 of the claims of the first responders. The Judge rejected the settlement of $575 several days ago as being inadequate.

The original settlement was crafted by the parties to cover the nearly 10,000 parties to the lawsuit. The Judge recognizes the difficulties in proving cancer claims and the unpredictability of the disease. The original cap offered was $100,000. The Judge said that was inadequate and suggested to the parties to find some method of increasing the benefits.

The 911 first responders were exposed to asbestos and petroleum products that could result in many types of future malignancies, including, lung cancer, mesothelioma and leukemia.

Click here to read more 911 claims.

David Michaels Testifies That OSHA Needs An Update-Enhance Penalties

In testimony before the Subcommittee on Workforce Protection of US Congress, David Michaels, Assistant Secretary for Occupational Safety and Health, reported that the Occupational Safety and Health Act (OSH Act) needs to be strengthened and enhanced. He encouraged that both civil monetary fines and criminal penalties should be increased.

"....If we are to fulfill the Department's goal of providing good jobs for everyone, we must make even more progress. Good jobs are safe jobs, and American workers still face unacceptable hazards. More than 5,000 workers are killed on the job in America each year, more than 4 million are injured, and thousands more will become ill in later years from present occupational exposures. Moreover, the workplaces of 2010 are not those of 1970: the law must change as our workplaces have changed. The vast majority of America's environmental and public health laws have undergone significant transformations since they were enacted in the 1960s and 70s, while the OSH Act has seen only minor amendments. As a British statesman once remarked, 'The only human institution which rejects progress is the cemetery.'"

"Monetary penalties for violations of the OSH Act have been increased only once in 40 years despite inflation during that period. Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem. The current penalties do not provide an adequate deterrent. This is apparent when compared to penalties that other agencies are allowed to assess."

"Criminal penalties in the OSH Act are also inadequate for deterring the most egregious employer wrongdoing. Under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a worker's life is six months in jail, making these crimes a misdemeanor.....Nothing focuses attention like the possibility of going to jail. Unscrupulous employers who refuse to comply with safety and health standards as an economic calculus will think again if there is a chance that they will go to jail for ignoring their responsibilities to their workers...... A fresh look at the OSH Act and its relevance for the 21st century is indeed overdue."

Click here to read more about OSHA and workers' compensation.

Asbestos Inspector in NY Admits Faking Tests

In the first criminal prosecution for violating the Toxic Substances Act, a NY inspector admitted in court that he made up hundreds of asbestos and lead tests between 2001 and 2009 and never actually inspected the buildings that he was charged to evaluate.

"EPA has also found that inhalation of asbestos can cause lung disease and cancer, and classified asbestos as a known human carcinogen. New York City has rules and regulations intended to reduce human exposure to asbestos fibers. Among other things, those rules and regulations require that, prior to the commencement of certain demolition and other projects, an inspection be performed by a New York City certified asbestos investigator to determine whether asbestos is present and, if so, how much and what kind, and whether the asbestos will be disturbed during the project. One purpose of the inspection is to determine whether or not the project is to be an "asbestos project" which requires the filing of a notice with the City and an abatement prior to commencement of the project. If the project is determined not to be an asbestos project, New York City rules and regulations require that a certified asbestos investigator complete, sign, and affix his or her asbestos investigator seal to a form captioned "Not an Asbestos Project," known generally as an ACP-5, and file that form with the City prior to issuance of a building permit and commencement of the project. 

"Until approximately February 17, 2004, Todara was a New York City-certified asbestos investigator, which authorized Todaro to inspect buildings for asbestos and to prepare and file -3 ACP-5s. On or about February 17, 2004, however, the City of New York suspended Todaro's asbestos investigator certificate, after which Todaro was prohibited from performing building inspections for asbestos and from preparing and filing ACP-5s in the City of New York. 

"However, despite the suspension of his asbestos investigator certificate, Todaro continued to prepare ACP-5s for filing with the City of New York regarding building projects taking place throughout the city. On numerous occasions, Todaro did so without actually performing an inspection of the premises identified in the ACP-5. In order to make it appear that inspections had actually been performed by a certified asbestos investigator, Todaro prepared backdated ACP-5s that falsely represented that he had performed an asbestos inspection and that he had done so prior to the suspension of his asbestos investigator certificate. Todaro submitted bogus ACP-5s, together with invoices describing the services provided as "Inspect/ACP5," to his customers, at least some of whom billed customers of their own for Todaro’s purported services.  Certain kinds of demolition and renovation activities in buildings can result in the release of asbestos fibers from building components into the air and the contamination of building components with lead-containing dust. Asbestos fibers in the air can be detected through the taking of air samples and laboratory analysis of those samples ("air monitoring"). Lead contamination of building components can be detected through lead clearance testing. 

"On hundreds of occasions, Todaro created and caused to be created false laboratory reports purporting to set forth the results of asbestos air monitoring and lead clearance testing performed at sites in which demolition and renovation activities were occurring or had occurred. Todaro then mailed these bogus reports, along with invoices for payment for his purported services, to customers. Those customers included, among others, management companies, landlords, and contractors. Some of Todaro's customers, in turn, billed customers of their own for Todaro's purported services. Moreover, some of the fraudulent invoices submitted by Tosaro were ultimately paid for under New York City government programs, administered by HPD, through which buildings in New York City were renovated, demolished, or demolished and re-built (the "HPD Programs"). One purpose of the -4 HPD Programs was to increase the stock of affordable housing in New York City.

Special Agent-in-Charge Majorie Franzman stated: "The egregious and reprehensible actions of Mr. Todaro exhibited a complete disregard for the health of unsuspecting residents in New York City. Mr. Todaro also placed at risk those workers who perform demolition and renovation work by exposing them to potentially unsafe levels of lead and asbestos. My office will continue to work closely with our law enforcement partners to hold accountable those who violate OSHA safety regulations and worker safety laws."

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Caution Your Job May Cause Cancer

The United Nations World Health Organization (WHO) through the International Agency for Cancer Research  (IARC) has issued a new monograph causally relating cancer to certain employments. The IARC warns that doing shift work, painting or just being a firefighter will raise the risk of developing a malignancy.

IARC MONOGRAPHS PROGRAMME FINDS CANCER HAZARDS ASSOCIATED WITH SHIFTWORK, PAINTING, AND FIREFIGHTING


After a thorough review and discussion of the published scientific evidence, an expert Working Group convened by the IARC Monographs programme has concluded that


• Shiftwork that involves circadian disruption is probably carcinogenic to humans (Group 2A).


• Occupational exposure as a painter is carcinogenic to humans (Group 1).


• Occupational exposure as a firefighter is possibly carcinogenic to humans (Group 2B).


These three occupations involve complex exposure patterns that make it difficult to attribute risk to specific factors. The Working Group, comprising 24 scientists from 10 countries, met at the International Agency for Research on Cancer (IARC), the cancer research agency of the World Health Organization.


A summary of these conclusions is being published in the December issue of The Lancet Oncology. Full results will be published next year as volume 98 of the IARC Monographs.


Shiftwork that involves circadian disruption is “probably carcinogenic to humans”


Epidemiological studies have found that long-term nightworkers have a higher risk of breast cancer risk than women who do not work at night. These studies have involved mainly nurses and flight attendants. The studies are consistent with animal studies that demonstrate that constant light, dim light at night, or simulated chronic jet lag can substantially increase tumour development. Other experimental studies show that reducing melatonin levels at night increases the incidence or growth of tumours.


These results may be explained by the disruption of the circadian system that is caused by exposure to light at night. This can alter sleep-activity patterns, suppress melatonin production, and disregulate genes involved in tumour development. Among the many different patterns of shiftwork, those that include nightwork are most disruptive to the circadian system.


"Nearly 20% of the working population in Europe and North America is engaged in shiftwork, which is most prevalent in the health-care, industrial, transportation, communications, and hospitality sectors: To date, most studies have focussed on breast cancer in nurses and flight attendants. Now more studies are needed to examine this potential risk in other professions and for other cancers," noted Dr Cogliano, Head of the IARC Monographs Programme.


Occupational exposure as a painter is “carcinogenic to humans”
Epidemiological studies of painters have consistently found small but significant increases in the risk of lung cancer and bladder cancer. In addition, several studies of painters have found increased levels of genetic damage.


Four of five case-control studies found significant increases in childhood leukaemia associated with maternal exposure before or during pregnancy, although findings were inconsistent for lymphatic and haematopoietic cancers in the painters themselves.


Painters are exposed to numerous chemical solvents, pigments, and additives. They can also be exposed to other workplace hazards such as asbestos and crystalline silica. The available information is not specific enough to identify particular agents as the cause of the excess lung or bladder cancers. It also cannot be determined whether the cancer risks have increased or decreased with changes in the solvents, pigments, and additives used in paints.


Occupational exposure as a firefighter is “possibly carcinogenic to humans”


Epidemiologic studies of firefighters have noted excess cancer risks compared with the general population. Consistent patterns are difficult to discern due to the large variations in exposure across different types of fires and different groups of firefighters. Relative risks were consistently increased, however, for three types of cancer: testicular cancer, prostate cancer, and non-Hodgkin lymphoma.


Acute and chronic inflammatory respiratory effects have been noted in firefighters, and this would provide a plausible mechanism for respiratory carcinogenesis. Firefighters are exposed to numerous toxic chemicals, including many known or suspected carcinogens. These intermittent exposures can be intense, and short-term exposure levels can be high for respirable particulate matter and for several carcinogens, notably benzene, benzo[a]pyrene, 1,3-butadiene, and formaldehyde.


What is new, and what do these results mean to me?


"These are IARC’s first evaluations of shiftwork and firefighting. Because there is credible evidence linking these occupations with increased risks of cancer, it is important that further studies be conducted to better identify what it is about such occupations that may increase the risk of cancer so that preventive measures can be implemented to avoid such risks", concluded Dr Peter Boyle, Director of the International Agency for Research on Cancer.


Occupational exposure as a painter has been classified since 1989 as carcinogenic to humans, and this new evaluation has linked painting to lung cancer and bladder cancer. The new evaluation also suggests that maternal exposure may be associated with childhood leukaemia. It is important that further studies be conducted in this area to confirm whether this risk is real and to identify precautionary measures that are appropriate to consider.


ABOUT THE IARC MONOGRAPHS


What are the IARC Monographs?


The IARC Monographs identify environmental factors that can increase the risk of human cancer. These include chemicals, complex mixtures, occupational exposures, physical and biological agents, and lifestyle factors. National health agencies use this information as scientific support for their actions to prevent exposure to potential carcinogens. Interdisciplinary working groups of expert scientists review the published studies and evaluate the weight of the evidence that an agent can increase the risk of cancer. The principles, procedures, and scientific criteria that guide the evaluations are described in the Preamble to the IARC Monographs.


Since 1971, more than 900 agents have been evaluated, of which approximately 400 have been identified as carcinogenic or potentially carcinogenic to humans.


Definitions


Group 1: The agent is carcinogenic to humans.


This category is used when there is sufficient evidence of carcinogenicity in humans. Exceptionally, an agent may be placed in this category when evidence of carcinogenicity in humans is less than sufficient but there is sufficient evidence of carcinogenicity in experimental animals and strong evidence in exposed humans that the agent acts through a relevant mechanism of carcinogenicity.


Group 2.


This category includes agents for which, at one extreme, the degree of evidence of carcinogenicity in humans is almost sufficient, as well as those for which, at the other extreme, there are no human data but for which there is evidence of carcinogenicity in experimental animals. Agents are assigned to either Group 2A (probably carcinogenic to humans) or Group 2B (possibly carcinogenic to humans) on the basis of epidemiological and experimental evidence of carcinogenicity and mechanistic and other relevant data. The terms probably carcinogenic and possibly carcinogenic have no quantitative significance and are used simply as descriptors of different levels of evidence of human carcinogenicity, with probably carcinogenic signifying a higher level of evidence than possibly carcinogenic.


Group 2A: The agent is probably carcinogenic to humans.


This category is used when there is limited evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals. In some cases, an agent may be classified in this category when there is inadequate evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals and strong evidence that the carcinogenesis is mediated by a mechanism that also operates in humans. Exceptionally, an agent may be classified in this category solely on the basis of limited evidence of carcinogenicity in humans. An agent may be assigned to this category if it clearly belongs, based on mechanistic considerations, to a class of agents for which one or more members have been classified in Group 1 or Group 2A.


Group 2B: The agent is possibly carcinogenic to humans.


This category is used for agents for which there is limited evidence of carcinogenicity in humans and less than sufficient evidence of carcinogenicity in experimental animals. It may also be used when there is inadequate evidence of carcinogenicity in humans but there is sufficient evidence of carcinogenicity in experimental animals. In some instances, an agent for which there is inadequate evidence of carcinogenicity in humans and less than sufficient evidence of carcinogenicity in experimental animals together with supporting evidence from mechanistic and other relevant data may be placed in this group. An agent may be classified in this category solely on the basis of strong evidence from mechanistic and other relevant data.


Group 3: The agent is not classifiable as to its carcinogenicity to humans.


This category is used most commonly for agents for which the evidence of carcinogenicity is inadequate in humans and inadequate or limited in experimental animals.


Exceptionally, agents for which the evidence of carcinogenicity is inadequate in humans but sufficient in experimental animals may be placed in this category when there is strong evidence that the mechanism of carcinogenicity in experimental animals does not operate in humans.


Agents that do not fall into any other group are also placed in this category.


An evaluation in Group 3 is not a determination of non-carcinogenicity or overall safety. It often means that further research is needed, especially when exposures are widespread or the cancer data are consistent with differing interpretations.


Group 4: The agent is probably not carcinogenic to humans.


This category is used for agents for which there is evidence suggesting lack of carcinogenicity in humans and in experimental animals. In some instances, agents for which there is inadequate evidence of carcinogenicity in humans but evidence suggesting lack of carcinogenicity in experimental animals, consistently and strongly supported by a broad range of mechanistic and other relevant data, may be classified in this group.

Click here to read more about occupational cancer and workers' compensation.