4-7-2011; Will changes to the Medicare Secondary Payer Statute assist in resolving Medicare issues and finally give us a way to appeal what are sometimes incomprehensible MSA values?

On March 14, 2011, the Strengthening Medicare and Repaying Taxpayers Act of 2011 (SMART Act) (H.R. 1063) was introduced in the U.S. House of Representatives. The SMART Act proposes major amendments to the Medicare Secondary Payer Statute (MSP). Track progress here: http://www.govtrack.us/congress/bill.xpd?bill=h112-1063       

The SMART Act’s reform proposals target multiple areas of MSP compliance including:

•       Obtaining CMS’ reimbursable conditional payment amount—this will help the parties confirm amounts which will be owed for past medical. Under CMS’ current process, the parties generally cannot obtain the exact reimbursable conditional payment amount until after the claim settles.

•       Requiring CMS to respond  to requests  for conditional payment information within set timelines—finally you won’t be stuck in the purgatory of never knowing when you will receive information you need to resolve past payments, hopefully within 120 days or less;

•       MSP appeal rights—when you receive the $100k MSA ruling for a person who hasn’t had a surgical procedure, you may have somewhere to turn as review through an administrative law judge and administrative review board, and access to judicial review in the district court of the United States is proposed in a manner which would be similar to the appeals procedure under regulations for hearing procedures respecting notices of determinations of nonconformance of group health plans.

•       MSP threshold exemptions—the SMART Act would require that CMS establish an annual MSP threshold exemption amount below which MSP compliance would not be necessary. The SMART Act’s proposal of a yearly MSP threshold exemption amount replaces the flat $5,000 monetary threshold exemption proposed last year.

•       MSP statute of limitations—you would no longer have to worry about someone looking into a claim well after all parties have retired as the SMART Act would establish a Three (3) year Statute of Limitation for MSP Claims.

We will keep you advised of changes as they occur and as previously noted, Shawn R. Biery has completed course work and testing from two sources to obtain his Medicare Set-aside Consultant Certified (MSCC) credential.

Please feel free to contact Shawn R. Biery, J.D., M.S.S.C. at sbiery@keefe-law.com with any questions regarding Medicare Set-Aside issues.

4-7-2011; Concluding our series of articles by Arik D. Hetue, J.D. taking a look at some of the recent rulings of the Supreme Court of The United States which point toward broad support for...

KC&A styles itself as a “one-stop shop” for employer defense needs. We have successfully defended IDHR suits in Illinois and Title VII suits in the Federal courts at very reasonable rates. In these discrimination settings, there are clearly defined paths for defendant employers to follow in order to limit their potential liability. Earlier this month, the Supreme Court of the United States decided a series of cases involving workers’ rights in the employment law setting. Last week we highlighted Staub v. Proctor Hospital, U.S. No. 09-400. this week we turn to Kasten v. Saint-Gobain Performance Plastics Corp which was decided on March 22, 2011.

Kasten v. Saint-Gobain Performance Plastics Corp, decided on March 22, 2011, dealt specifically with the Fair Labor Standards Act (FLSA), but its holding will apply more broadly in the field of retaliatory discharge and OSHA suits generally, as the language of the statutes are similar. Kasten was an employee in Saint-Gobain’s Portage, Wisconsin facility who received repeated warnings for violating a company policy requiring employees to clock in and out of work. He was eventually terminated for these infractions. Kasten subsequently filed suit alleging he was discharged in retaliation for making oral complaints to his supervisors regarding the location of the company’s time clocks in regard to preventing employees from recording their time spent “donning and doffing” protective gear. The fact that these complaints were oral was central to the case and to the holding, as the District court held internal company complaints could constitute protected activity within the meaning of the FLSA, but oral objections were not protected.  The Seventh Circuit affirmed and the Supreme Court took up the issue.

Of note is the now somewhat broad language of “filed any complaint” contained in the relevant portion of the FLSA. The Supreme Court essentially held this statutory text can include both oral and written complaints, and reversed the Seventh Circuit and remanded the case for further consideration in light of their holding. The Court focused on the facts surrounding the time of the passage of the FLSA, when a relatively high number of American workers were illiterate. Relying on this, the Court held the phrase “filed any complaint” to include oral complaints, and noted such an interpretation furthered the FLSA’s stated purpose of protecting workers. Also of significant was the fact agencies which enforce the FLSA have consistently interpreted “filed any complaint” to include oral complaints.

One striking item missing from the Court’s analysis was the issue of whether complaints made to private employers, rather than government agencies, are protected under the FLSA’s anti-retaliation provision.  This is striking mostly because the complaints at issue in Kasten were made only to a private employer! Always make sure to include the kitchen sink when preserving the issues on appeal - the Court found Saint-Gobain failed to raise the issue in its response to Kasten’s petition for certiorari. There is currently a circuit split on this issue, which may soon be heading back to the Supreme Court.

What does this mean for employers generally? The most important thing to take away from this holding is to pay attention to complaints and document them regardless of whether they are oral or written. As noted above, this holding will take effect in at least other OSHA settings, but generally, it is wise to look into any reports of any kind which may lead to litigation or grievance. If you do not yet have a policy of having oral complainants write out their complaints, it would be wise to do so – have them give a recorded statement while you are at it if you want to lock stories in. We would be happy to further discuss such issues with you via email, in person or over the phone, feel free to contact us regarding your investigation process!

This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, please send a reply to ahetue@keefe-law.com, or post them later today on the blog at www.keefe-law.com/blog.

4-7-2011; On the legislative front, Governor Quinn weighs in with his two bits on WC reform

We are being constantly bombarded with questions about pending WC reform. We are certain there are about five different bills, all of them confusing and have mild to moderate chances of passing. We are certain the various forces of Illinois labor are fighting to stop whatever change might occur. From our perspective, they are trying to build a horse and more likely will create a camel. On April Fool’s Day, Governor Quinn released his serious outline of a workers' compensation reform package—it sounds good but we don’t see it passing. His staff asserts Illinois WC is the second most expensive state WC program in the nation, after Alaska. We are not sure how we passed Montana who we were told used to be No. 2.

The plucky Governor claims his reforms would reduce magically costs by about $700 million with the vast majority of that savings, almost $500M would come from cutting the current Illinois WC medical fee schedule by 30 percent. Even with that huge medical fee cut, Illinois would retain its high ranking among all states. And the problem with cutting medical costs is the Illinois Hospital Association and Illinois State Medical Association are steadfastly opposed. It is weird to understand Illinois labor unions and the Illinois Trial Lawyers Ass’n have joined ranks with representatives of the Republican-dominated medical community, creating a bi-partisan “plug” on anything the Governor or legislative leaders might want to pass.

We are now advised the forces of Illinois business are fighting hard for a new standard on causation and we being told they want a “standard” requiring work injuries being magically “50 percent related” to the work. As we have advised in the past, there is a major “steam around” factor present, as we expect the most liberal of the Arbitrators and Commissioners will simply find any condition to be at least “50% related.” Unless and until the Commission gets the news, you can pass all the legislation you want, it won’t matter a whit.

Other provisions from Governor Quinn and our thoughts:

* Personal claims made by Arbitrators and Commission employees will be heard by the Illinois Court of Claims, instead of other friendly Illinois Workers' Compensation Commission arbitrators. Yawn—when did the Court of Claims have any idea how to dole out WC benefits? Should CMS claims adjusters who have claims before the Arbitrators still be able to adjust and settle the claims?

* Arbitrators must, by statute, be licensed attorneys, act in an unbiased, impartial manner and adhere to the Code of Judicial Conduct. We recommend this apply to everyone in our WC systems but hard to imagine it will happen as this is Illinois, right? Who is supposed to objectively measure “unbiased, impartial”—the Governor; the Legislature; the reviewing courts; Illinois employers?

* When the six-year terms end for current Arbitrators, they must receive a suitable evaluation in a process to be established under the control of Workers' Compensation Commissioners before they can be reappointed. New terms will be three years. Same “yawn” as above—they are trying to legislative “ideals.” If Governor Quinn wants Commissioners and Arbitrators in his image and likeness, he has the power to locate and appoint them right now.

* Carpal tunnel total disability payments, or weekly tax-free paychecks equal to two-thirds of salary, be capped at 20 weeks. We are back-flipping to hear such a proposal about CTS but the chances we are back-flipping into a pool without any water in it are high—it won’t happen or it will later be magically declared unconstitutional. While you are limiting CTS, limit cubital tunnel syndrome also—our WC benefit system “causes” more CuTS surgery in Illinois than any other state in the U.S.

* Claims by intoxicated workers injured by their inebriation be denied. Again, nice try in “legislating ideals” and we expect a high “steam around” factor following the enactment of such legislation.

* A special assistant attorney general will be assigned to investigate fraud and assist the Department of Insurance, which will be given more authority to investigate and prosecute workers' comp fraud. Sounds fine to us, if it passes.

* Insurers must accept cheaper electronic billing from medical providers. Not sure who cares but if it saves money, go for it.

* Attorneys who appear before the Commission must adhere to the same rules as they do when they appear before a court. No idea what this means or where it came from but if they are trying to say you can’t buy “face-value tickets” for Arbitrators we already thought that was a law or at least a guideline.

* The state can consider the use of outside companies to operate all or part of the state's self-insurance workers' compensation program. See the first article above—we don’t think this has to be in legislation but if it does, we can’t pass it fast enough.