2-8-2016: Get Shawn Biery's New/Corrected 2016 IL WC Rate Sheet; Consider Sharpline and KCB&A for All Your MSA - Settlement Needs; Lilia Picazo, JD Analyzes New ADA Safe Harbor Ruling and more

Synopsis: In What is Becoming a New and Mildly Irritating Administrative Trend, One Day after We Announced SHAWN BIERY’S NEW IL WC RATE SHEETS WERE HERE, the IWCC Posts a Change/Correction!


Editor’s comment: We now have the even newer 2016 IL WC Rate Sheet. You still need to check your PPD Reserves which need retroactive updating when the new rates landed. If you already requested the earlier version—you will get the most newly updated form to match the IWCC’s corrected benefits information. To get a complimentary copy, simply email Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com for Shawn R. Biery’s Updated IL WC Rate-Sheet!


Editor’s comment: The IL WC statutory maximum PPD rate was lowered to $755.25. When it was published, this rate changed retroactively from July 1, 2015 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2015 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply.


The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. AGAIN—If you want just one or a dozen or more, simply reply to Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com  They will get a copy routed to you before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!


Let’s all hope the hard-working folks at the IL WC Commission can double, triple and quadruple-check the changes next year before posting to avoid this unnecessary confusion and not highlight the fact all these rates change/increase constantly!




Synopsis: If Medicare Issues are Bogging Down Your WC settlements, Save Pressure Time by contacting KCBA or the experts at our MSA partner Sharpline Allocations To End/Resolve Litigation and Protect Medicare’s Interests.


Editor’s comment: The most basic strategies are sometimes the best. As most readers are aware, Shawn Biery and Matt Ignoffo are the resident MSA certification holders at KCBA. Many of you are also aware the great folks at Sharpline Allocations has become a valuable partner in our efforts. From providing rapid analysis and prompt conditional payment checks to preparing calculations and utilizing the electronic submission route, Sharpline over the past several years has augmented our already strong MSA offering to clients.


From the litigation standpoint, we review every case which ripens for settlement to confirm and protect Medicare’s interests. Sometimes it is as simple as verification of the final MMI and end of care with confirmation from the treating MD—or the fully disputed language which confirms the issues are not likely WC and should not impact Medicare.


And then there are those cases where future medical care and billing may be a concern. For those, KCBA utilizes the assistance of Sharpline Allocations to identify potential values and analyze the risk. We also:


  • Identify unnecessary or inappropriate care recommendations;


  • Identify changes in implementation which drive cost savings without impacting care;


  • Identify meds which can be reduced via programs which specialize in weaning certain meds which can save hundreds of thousands over the life of a future projection;


  • Identifying Rx changes which do not impact care, such as simply changing an Rx from one 80 mg tab to two 40 mg tabs which can sometimes save thousands per year;


  • Identify meds being prescribed off-label for purposes not covered by Medicare—thus excluding them from payment criteria for a Medicare-coverage.


All of these tools can be used to minimize the impact on your settlement and can be done in rapid fashion.


And Sharpline does more!!! While KCBA focuses on the endgame MSA issues with litigated files moving toward closure, Sharpline Allocations also performs a variety of tasks, including but not limited to:


  • File reviews and Pre-MSAs to identify cost-drivers for MSAs and to implement plans of action to limit MSA costs


  • MSAs, Zero MSAs and Zero Opinion Letters


  • Submittals to CMS for approval through the online portal (WCMSAP)


  • Medicare Conditional Payment research, dispute and lien resolution


  • Social Security Disability Eligibility checks and requests for SSD applications and file materials to obtain additional ammunition for your claims


  • Medical Cost Projections to set reserves and assist in settlement discussions


As always, for any questions regarding Medicare Set-Asides, CMS review thresholds or other Medicare related issues with regard to your settlements, you can reach Shawn R Biery, J.D. MSCC via email at sbiery@keefe-law.com  or via phone at 312-756-3701 or you can also contact our other MSA certified attorney Matt Ignoffo, J.D. MSCC via email at mignoffo@keefe-law.com  or via phone at 312-756-3729.


You can also reach Courtney Whistler at Sharpline Allocations via email at cwhistler@sharplineallocations.com or phone at 214.929.2350 or Wendy Schreck at Sharpline Allocations via email at wschreck@sharplineallocations.com.



Synopsis: Big Victory for U.S. Employers! Federal District Court Judge Issued a Ruling Halting the EEOC’s Attempts to Overreach the ADA’s “Safe Harbor”. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In the recent EEOC v. Flambeau, Inc. decision, the United States District Court for the Western District of Wisconsin issued a ruling reasoning the ADA “safe harbor” provision, which provides an exemption for activities related to the administration of a bona fide health benefit plan, allowed Defendant Flambeau to require employees to complete a health risk assessment (HRA) and undergo biometric screening as a condition of enrollment in Flambeau’s self-funded group health plan.

According to the undisputed facts laid out in the decision, Defendant Flambeau offered their employees various employee benefits, including participation in its self-funded and self-insured health insurance plan. Employee participation in the health insurance plan was neither required nor a condition of employment. In 2011, Flambeau established a wellness program. Each participating employee was required to complete a HRA questionnaire and biometric screening test (similar to a routine physical examination) as a prerequisite to participation in Flambeau's health insurance plan. Flambeau used the aggregated data to design a group health plan, set participants’ premium levels, adjust co-pays for preventative exams and certain prescription drugs and to create programs intended to promote health and fitness. In its first year of inception, Flambeau gave a $600 credit to employees who participated in the wellness program and completed both the HRA and biometric screening test. By the 2012 and 2013 benefit years, Flambeau eliminated the $600 credit and implemented a policy offering health insurance only to employees who completed the wellness program components.

In 2012, an employee of Flambeau failed to complete the required wellness program components by the established deadline resulting in the discontinuance of his coverage for the 2012 benefit plan year. Flambeau offered the employee COBRA coverage for that year. In a separate grievance and complaint filed with the Department of Labor, the employee’s coverage was reinstated retroactive to the first day of the 2012 plan year upon agreement of completion of the required HRA and screening test. Subsequently, the EEOC in its infinite ability to issue lawsuits against employers, filed suit in September 2014 alleging Flambeau’s health insurance plan’s testing requirement violated the American with Disabilities Act (ADA), which they argue prohibits medical examinations that are not job-related and consistent with business necessity. The EEOC further argued Flambeau violated the ADA by requiring employees to complete the wellness program components prior to enrolling in its health insurance program. In response, Flambeau argued the wellness program requirement prior to enrollment in its health insurance plan was protected by the ADA’s “safe harbor” exception under the Act, which provides that wellness requirements are considered terms in an employer health plan and used to help the employer underwrite, classify and administer health insurance risks.

It’s important to note the EEOC did not issue proposed guidelines that indicated what it considered a compliant wellness program under the ADA and GINA until April 2015 and October 2015, respectively.

On December 31, 2015, Federal District Court Judge Barbara B. Crabb rejected the EEOC’s motion, granted Flambeau’s motion and entered judgment in favor of the company reasoning the company’s wellness program components fell within the ADA’s “safe harbor” exception as set forth in Section 12201 (c)(2). Three key components from Judge Crabb’s ruling:

1.    Section 12201(c)(2) applies so long as the wellness program provisions are terms in an employer’s health benefit plan. The Court held Flambeau’s wellness program was undoubtedly a “term” of its health insurance benefit plan because it required employees to complete the wellness program components before they could enroll in the health plan. The court noted the company distributed handouts to its employees informing them of the wellness program requirement and went as far as scheduling the HRA and biometric screening tests to ensure they would coincide with the health plan’s enrollment period.

2.    The wellness program requirement must be based on underwriting risks, classifying risks, or administration of such risks: The court held the wellness program requirement was clearly intended to assist Flambeau with underwriting, classifying or administering risks associated with its health insurance plan because its consultants used the aggregated data gathered through the HRA and biometric screening test to classify participants’ health risks and set premium plans, calculate its projected insurance costs for the benefit year, and adjust co-pays for preventative care and medications.

3.    The wellness program component requirement cannot be used as a subterfuge to evade the purposes of the ADA: The Court held there was no subterfuge in this case because all employees who opted to participate in the company’s health insurance plan were required to complete the wellness program requirements prior to enrollment, regardless of their disability status. The Court noted there was no evidence the company used the aggregated data to make disability-related distinctions with respect to employees’ benefits.

While it is likely the EEOC will appeal the District Court’s decision, we note the ruling is a victory for U.S. employers who are already faced with the challenging task of designing wellness programs that fit within the EEOC’s guidelines of compliant wellness programs under the ADA.

Moving forward, we strongly recommend our business clients, readers and other employers continue to monitor the developments in this case. We also encourage employers to assess their established wellness programs to ensure compliance under the EEOC’s current proposed regulations. While the proposed regulations are currently non-binding, we doubt the EEOC will sue you for complying with their proposed regulations.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions at lpicazo@keefe-law.com