9-19-2016; Wilmette Firm Gets IL WC E-Filing—Will Gov't Efficiency Result in Savings?; Managers, Assume You Are Taped!!, Analysis by Brad Smith; Email Attachment Standard to Boost WC Payment Speed

Synopsis: Wilmette Firm Gets IL WC E-Filing Job—Will Government Efficiency Result in Savings for IL Taxpayers?


Editor's comment: Reliable sources advise WorkComp Strategies of Illinois won the bidding to be the E-Filing Vendor for the IL WC Commission. Their website is http://www.stratag.net/home. IL Secretary of State Jesse White's website indicates this limited liability corporation is based in Wilmette, IL.


One of the two partners is the former program director of Virginia's WC system and this new firm to be the vendor for the first phase of an e-filing program called the digital transformation project. WorkComp Strategies of Illinois, an offshoot of his WorkComp Strategies LLC, will get nearly $807,000 with an option for $574,000 in contract renewals, according to the bid notice. The company appears to be on the cutting edge of e-filing for other states, as they also have a contract with the Kansas Division of Workers' Compensation to shepherd its DigiComp electronic filing system, which is still in the works.


WorkComp Strategies has three employees and their team will determine the steps needed to ascertain needed requirements for the IL WC e-filing system, and then will develop the RFP or request for proposal for the second phase — the development and implementation of the computer systems. Based on how the bidding was set up, WorkComp Strategies of Illinois is not eligible to bid or directly participate in providing services in the second phase. All monies to fund the IL WC e-filing project will come in part from a $44 million settlement obtained through the hard work of Jay Dee Shattuck and others at the Illinois Chamber of Commerce, which filed a lawsuit against inappropriate business fees imposed by former-Gov-now-in-prison Blagojevich's administration.


The Cook County Circuit Court ruled in favor of the State Chamber's lawsuit and confirmed the new business fees violated uniform taxation rules by creating classifications that singled out business groups to bear the cost of operating general government functions. The IL Supreme Court sent the case back to the Circuit Court for more fact-finding, however. At that point, the State agreed to settle for $44M. Part of the $44 million settlement was used to repay loans used to provide Rate Adjustment Fund cost-of-living increases to permanently injured workers and to pay claims owed to others. The bulk of the settlement or $26 million, which is now $30 million was designated for IL WC Commission capital improvements, in particular this new e-filing system. None of the settlement money was designated to cover normal IL WC Commission operating expenses.


The Illinois Chamber, a staunch supporter of e-filing and lots of other things that are good for IL workers' compensation, was the only agency to comment on the proposed e-filing system after WCC rule changes were published July 29 in the Illinois Register. Proposed Section 10B under 50 Ill. Admin. Code 9015, however, could be interpreted to allow only attorneys to use the e-filing system. Every indication is pro se litigants and non-attorney clerks will be given entry to the system.


The digital transformation project will involve several core components, including electronic filing of applications and motions, case management, dispute resolution and workflows, electronic imaging and document management, data interchange, docketing, scheduling, calendaring and reporting, the agency said in its RFP. Other related business functions also will be included, including self-insurance and insurance compliance.


Will IL WC Commission E-Filing Result in Real Savings?


From the Good Gov't folks at KCB&A, we will continue to ask the recurrent question—will this new e-filing effort result in demonstrable savings for IL taxpayers. We point out 100% of the cost of operating the IL WC Commission is levied on business and local governments. There are numerous "special funds" that your editor considers ridiculous and should be ended when and if someone cares about saving IL business money. All IWCC budgets and funds should come under repeat scrutiny to insure IL business and local governments are getting solid value for the money they are spending on the IWCC.


We remember the silliness that happened when TriStar was brought in to "replace" the Central Management Service's WC claims adjusters. Insiders were told the CMS adjusters would either become part of the TriStar claims team or they would be shown the door to save taxpayers money. Instead, we were advised what happened is the cost of the TriStar TPA was added to the WC budget and the various line adjusters with CMS turned into "supervisors" of the outside adjusters. Not a nickel was saved. We vote Governor Rauner take a hard look at the TriStar program and issue an RFP for one of our many in-state WC TPAs, like Cannon Cochran Management Services, IPMG, Gallagher Bassett or many others to openly bid on this needed government service and save money on State WC claims.


We will continue to watch and see what happens with e-filing. If the new computer models result in faster and smoother electronic handling of the claims of injured workers, we assume the money obtained by the IL State Chamber will be put to good use. If it also results in savings for IL State Chamber members and others in IL business and local government, we will strongly salute these efforts. Watch this space for results as we learn of them.


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Synopsis: Managers, Please Start To Assume You Are Being Taped--Employees Now Secretly Recording Employers: Who Would Consent to That? Carlson Wins $20 Million Settlement Against 21st Century Fox. Analysis by Bradley J. Smith, J.D.

Editor's Comment: Everyone has likely heard of the suit against Fox News brought by former news anchor, Gretchen Carlson. Carlson alleged the network's CEO and President, Roger Ailes, subjected her to harassing comments. Carlson's key pieces of evidence consisted of voice recordings of Ailes making sexually harassing comments. That evidence was taken on Carlson's iPhone for more than a year prior to her exit from Fox News. Ultimately, Carlson's case was in its infancy, but Fox News was more than willing to offer up the substantial sum of $20 million to escape the publicity and negative press that followed the suit. The recordings also cemented Carlson's claims of a hostile work environment at Fox News. Nonetheless, Carlson's workplace was in a state where only one-party consent to recording is required under the applicable eavesdropping laws, similar to Federal eavesdropping laws.

Perhaps a sign of the times, this type of behavior is occurring more and more today. In fact, Carlson's actions are likely to be copied by other employees in similar circumstances. Illinois is not one of those states currently, but employers must remain vigilant to prevent a workplace where every conversation is recorded.

Notably, your place of employment determines if actions like Carlson's are legal. If those actions are not legal, then generally the evidence derived from that illegal act would be subject to exclusion from any finder of fact and could subject the individual recording the conversation to civil and criminal penalties depending on the jurisdiction. In Illinois, all-party consent is required. However, in neighboring Indiana and Wisconsin, only one-party consent is required. All-party consent is required in only 11 states in addition to Illinois: California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. A majority of jurisdictions only require one-party consent to record conversations.

As hostile work environment cases generally come down to allegations someone was saying something derogatory or inappropriate, recordings—if legal—are invaluable. This evidence would be extremely beneficial even to employers' managers that fear false allegations of creating a hostile work environment or harassing someone will be lodged against them. Even recording someone in a termination meeting might alleviate the necessity of a witness to sit in on the meeting. However, a precedent of recording can be dangerous. Not only can it subject individuals to severe invasions of privacy. It will be embedded with baiting of individuals. Furthermore, recordings could be taken out of context in an effort to seek out bad publicity against employers.

In Illinois, the requirement of all party consent is an interesting legislative topic fraught with legal implementation challenges. The Illinois Supreme Court struck down the original eavesdropping statute (720 ILCS 5/14-2) in March 2014. In People v. Melongo, 2014 IL 114852 and People v. Clark, 2014 IL 115776, the law was found unconstitutional. Both cases were heard at the same time and both opinions were filed on the very same day. They both held that the Illinois eavesdropping statute as amended in 1994 was unconstitutional, as it was overly broad under the first amendment, in criminalizing the recording of conversations without the consent of all parties, even if they have no expectation of privacy. For example, the original Illinois eavesdropping statute prohibited recording:

1)   A loud argument on the street;

2)   A political debate in a park;

3)   The public interactions of police officers with citizens; and

4)   Any other conversation loud enough to be overheard by others whether in a private or public setting.


In fact, recording of these public conversations were deemed a felony under criminal law. More recently, Public Act 98-1142 amended the statute. Public Act 99-352 again amended the statute in 2015. The amended Illinois eavesdropping statute seeks to follow the Illinois Supreme Court's holdings that struck it down in attempt to make conversations with no expectation of privacy available for recording without repercussions. In other words, public conversations have no expectation of privacy. However, the Illinois eavesdropping statute requires all-party consent—similar to the original statute—for any applicable private conversations.    

Employers will need to implement policies prohibiting workplace recording in Illinois under certain circumstances to avoid any situations where employees are recording conversations meant to be private. Recording conversations at work can only open up a Pandora's box despite the anticipatory use by employers to avoid discrimination claims. One can also see where a determination by an employer to use a recording device in performance and termination meetings would cause the employees to use recordings in everyday disciplinary situations out on the open floor at an employer's place of business. Perhaps an employee would argue—without an applicable restrictive policy in place—that the conversation was recorded and there was no expectation of privacy. Consequently, although at first glance recording workplace conversations with everyone's consent seems like a great way to protect employers, implementing policies preventing any workplace recordings appears to be the better option in the long run.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the employment law and general liability defense at bsmith@keefe-law.com.



Synopsis: National Attachment Standard Could Give WC Electronic Medical Billing PAYMENT SPEED a Boost. We recommend all of the doctors, hospitals and healthcare providers among our readers to consider a change.


Editor's comment: One key to ensuring quick payment of work-related medical bills for injured workers is to electronically submit the attachments unique to the work comp industry. Submitting electronic attachments could become easier following a public advisory board's proposal to standardize this important process. The National Committee on Vital and Health Statistics transmitted the recommendations to U.S. Health and Human Services Secretary Sylvia Burwell earlier this summer. The recommendations could be followed by rule-making on all electronic attachments.


In workers' compensation, the attachments are typically physician notes about an injured worker's recent visit. Unlike group health, workers' comp payers often want to see the physician notes at the same time as the bill. Several states require submission of the physician notes with billing. We feel this concept should be brought to IL WC also.


Concentra has a system to electronically submit bills for workers' compensation services and the attachments at the same time, something the company has been doing since 1998. When they do so, they see much more rapid payment times. But many medical or PT practices aren't following this simple model. Those using a medical billing clearinghouse might submit the bill electronically and then, in an added step, fax the attachment to the clearinghouse, which later matches up the items to send to the payer. Others send paper bills to the payer, where the attachment can easily get separated from the bill.


The problem is that many practice management systems don$B!G(Bt include a way to pair the attachment with the medical bill. That could change if HHS adopts standards for electronic attachments. In a recent white paper on "how to be successful" in the electronic submission of workers' compensation bills, the California Orthopaedic Association lists some of the reasons providers are not yet using electronic billing. California is one of several states that requires workers' comp payers to accept electronic billing, but it is optional for providers. Some orthopedic practice managers told COA they hadn't had a chance to update their electronic billing systems to accommodate workers' comp billing in addition to Medicare and group health. Others said they weren't sure their practice management system could handle electronic workers' compensation billing, or said that their system could bill but wasn't able to send attachments, according to the white paper. Many confirmed electronic billing was too costly to implement, or that their office doesn't have an electronic medical records system. We feel these are the same practices that constantly complain about slow payment in the WC industry.


COA recommended using a clearinghouse as an easy way to submit medical bills, reports and attachments electronically. Alternatively, a practice might need to have custom interfaces written for its practice management system to generate the files in the correct format and to match up billing with attachments. In addition to streamlining the billing process, COA notes a big advantage of electronic billing: getting paid more quickly. "Orthopaedic practices that have moved to the electronic submission of workers" compensation bills/reports/attachments indicate they are commonly getting paid in 10 days or less with fewer bill rejections," the COA report noted.


Texas adopted electronic billing and attachment regulations in 2008, based on standards from the International Association of Industrial Accident Boards and Commissions, or IAIABC. Those were based in part on a federal regulation proposed in 2005 that was never adopted. The Texas system includes an electronic "envelope" for including attachments as well as a transaction to acknowledge receipt of an attachment.


We asked Dr. David Fletcher, the CEO of SafeWorks Illinois about this topic and got this answer from his top staffer Tonya Trice: "We are very lucky. We use Jopari, which will not even submit one of our invoices without an attachment. If for some reason an attachment is not uploaded with our invoice, it takes me a matter of seconds to upload that attachment and continue on with the billing process. I cannot imagine using an electronic system in which we would have to fax or mail in our attachments. I didn't even know some places are billing this way. That is not efficient what so ever. As I have told you before, I wish all of our bills could be submitted electronically. Jopari is adding new payers, and maybe in time it will be that way." For information on Jopari, go to their website at: http://www.jopari.com/. For information about SafeWorks Illinois, go to their website at: http://www.safeworksillinois.com/


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