Synopsis: Missing the 800lb. Gorilla—WorkCompCentral Reports City of Chicago WC Committee Saved $1 Million After Ald. Burke Stepped Down—What About the $100M WC Claims Spend?

Editor’s comment: All Chicago media outlets are reporting Mayor Lori Lightfoot’s City of Chicago budget is expected to have a $2 billion deficit in the next 24 months. We are fairly sure it is going to be virtually impossible to make up that deficit and keep the “Second City” running in the fashion that has driven it into this whirlpool of skyrocketing debt. Municipal Bankruptcy and unpaid bills loom—hello Detroit.

In the past, I have reported one reason for this hilarious and scary financial situation is the City of Chicago was arguably a vastly “dangerous” place to work because hundreds and hundreds of City workers filed questionable WC claims over and over and over again. Along with high numbers of claims, City WC managers would allow workers to remain on TTD for years/decades to then provide giant settlements. I have warned over and over this can’t continue, as they are now completely running out of money.

You might not be surprised to learn the alderman who formerly ran the City’s WC program would not allow for light duty--causing high reserves, lost time and overtreatment. He also would not allow for surveillance of City workers, claiming it wouldn’t help—this meant City workers would quietly open businesses or make cash on the side while also getting TTD. If you research it, once this alderman was forced out due to a federal indictment, numerous workers who had been on TTD suddenly reported for work or retired.

WorkComp Central, a great national WC news outlet today reported an annual audit and financial report found the Council's Finance Committee, which ran the comp program for City employees, has saved almost $1 million in the year since the prior WC alderman managing the committee stepped down as chairman, according to the audit and a Chicago news report.

In 2018, the report indicates the committee spent $2 million, more than any other City of Chicago council committee. After the indictment was served, the managing alderman stepped down in January 2019 after he was charged with extortion. Since then, committee staff was cut to just three and the committee spent $1.1 million in 2019. Mayor Lori Lightfoot also brought in a new program administrator, and national TPA Gallagher Bassett was hired—this was a giant step for the City which hadn’t had an outside administrator, ever.

My issue is simple—the City of Chicago is broke, past broke. When I last looked they were spending over $100M annually in WC costs—please note this is for City of Chicago employees who aren’t police officers and firefighters. Police and firefighters in Chicago aren’t covered by WC. That doesn’t mean that hundreds of millions aren’t spent on such workers. The combined spend for all City workers on WC or police/fire disability is well over $200M per year in my opinion. I am not hearing any significant savings is occurring from my secret squirrels.

In short, I am not concerned about “committee costs.” I am concerned about government dysfunction and waste, waste, waste in managing WC and police/fire claims. I am hoping someone can tell us what the City is wasting, I mean, spending annually or monthly on combined WC and police/fire costs. Trust me, someone is going to have to make progress on ending phony claims and eternal disability for City of Chicago workers and police/fire folks.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Trying to Get The Low Down on HITECH In WC and Other Medical Records.

Editor’s comment: HITECH Act was implemented in 2010. It is a federal law. There has been widespread uncertainty about how to it works. The U.S. Department for Health and Human Services (DHHS) has worked several times to clear up the law, but unfortunately this has sometimes led to more confusion, not less.

Should Claimant Attorneys Use HITECH?

YES!!! Get the records needed to support your claims. Don’t mess with stupid State subpoenas that some caregivers ignore or over-charge for. File complaints with DHHS when treaters routinely ignore requests from patients for records.

When Claimant attorneys get the records and bills needed, share, share and share with the other side to support reserves, negotiations and your position in WC litigation.

Here are a few key principles:

HITECH only applies to records requests from a patient, when the request comes from the patient directly and is in writing;
HITECH does apply when the patient requests their medical records be sent to a designated representative, including the patient’s attorney;
HITECH does not apply when an attorney directly requests the patient’s medical records;
When the request is in writing from the patient, the healthcare professional must comply with HITECH and its rules
When the request is from any other source, HITECH does not apply, and the healthcare professional can charge under state law and its rules, including the previously standard handling fee and per-page charge.

Does HITECH Apply to WC IME Reports?

The five bullet points above create something of a legal anomaly—IME docs are very careful to tell examinees they aren’t “patients” and no doctor-patient relationship is created. Very few IME docs make direct recommendations to patients for care. IME docs tell someone other than the examinee of their opinions and best thoughts.

In my view, HITECH requests should not apply to WC IME’s due to the lack of a doctor-patient relationship. Watch this space for news on this issue, if I hear of it.

1. A physician or healthcare giver has a request from a patient asking for a copy of their records in electronic format. Can the doctor or healthcare giver charge the patient a handling fee and per-page copy fee?

From what I can tell, the HITECH Act is a federal law, and federal law preempts state law. The HITECH Act states a doctor/healthcare giver can charge a flat fee of $6.50. Alternatively, a provider can charge a “reasonable, cost-based fee” for producing electronic records when requested directly from the patient. That means the labor cost to the healthcare giver of producing records, is the demonstrable labor cost to put the records onto a CD, plus postage.

2. The patient requested electronic records, so the doctor/hospital/caregiver scanned the paper records and put them on a CD. What can be charged under HITECH?

Whether the doc has to scan paper records into an electronic version, or drag and drop already-electronic records onto a disc, they may only charge the patient a flat fee of $6.50. HITECH does give them a second option, which is to charge a “reasonable, cost-based fee” instead of the $6.50, for the actual labor cost to produce the electronic records. This would involve the labor-related cost to the healthcare giver’s business in scanning the paper record, uploading the record to a cloud-based system, or time spent creating and sending out a CD. For example, if they pay someone on your staff $20.00 an hour to process records requests and they spend 10 minutes on the request, the labor cost is $3.33. They can add on the cost of the CD, which is about .20 cents and postage.

However, if they intend to charge something other than the flat fee, they must disclose those charges to the patient before sending the records. That is why most providers are choosing to charge the flat $6.50 fee for all requests, as it is simpler and more cost-effective to have one unified procedure for all requests.

3. The patient letter also asked for a verification/certification that a caregiver has produced all the records. Can they charge the State administrative fee for preparing that?

No. The HITECH Act does not allow a provider to charge for the verification of the patient’s electronic record. DHHS has expressly stated that a provider cannot charge an administrative fee to verify the patient record.

4. The caregiver doesn’t keep records in electronic form, so can they charge the old state per-page and handling fees?

The short answer is no. The HITECH Act requires they comply with a request for records in electronic format if it is readily producible electronically. That means they must scan the paper records (typically into .pdf form) and transfer them onto a CD or flash drive.

If you have absolutely no ability to produce the records in any kind of electronic format, then (and only then) can you provide the patient with a hard copy of the record. Even in that case, they still must comply with HITECH in how they charge the patient. They cannot charge the handling and per-page fee allowed under state law. Under HITECH, they may only charge for actual labor costs and the cost of supplies.

6. What does the doc do I do about x-ray films? They can’t scan those.

In this situation, it would be acceptable to charge the client the cost to you of reproducing the films and putting them onto a CD because the Act states that the records be “readily producible” in the manner requested.

7. The patient (and not the patient’s attorney) sent a letter asking for their records in electronic format, but there was no HIPAA form. What is to be done?

When a provider receives a letter signed by the patient asking for medical records, the patient’s signature serves as the authorization. A separate HIPAA release is not required.

8. If a provider outsources all of records requests to a records provider, can they charge the patient for the cost of the third party vendor to copy the records?

No. HITECH does not allow the provider to pass the costs of a third party vendor to copy/scan records.

11.What is the deadline to respond to a request for electronic records?

The provider has 30 days to comply with the request. If you cannot comply within this time period, the provider must notify the patient of the reason for the delay within the initial 30 days and then the records are due in 30 more days.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

KCBA Blog

9-1-2020; WC Central Misses the 800lb City of Chicago Pink Gorilla; HITECH Enters WC Claims and Litigation Practice and more