5-11-15; Let's Have Our Administrators Move IL WC To The Middle and Not "Race" Anywhere; IL Fake Pensions Need Constitutional Congress for Reform; Shawn Biery, JD, MSCC on CMS Update and much more

Synopsis: IL Speaker Madigan Urges Our Legislators Not To “Race to the Bottom” in the Illinois Work Comp Arena.

Editor’s comment: In what some commentators view as a legislative publicity stunt, Illinois House Speaker Michael Madigan called a rare “Committee of the Whole” to allow testimony from folks all across the United States in what may have been an effort to slow or block proposed changes to our workers’ comp system by folks loyal to Governor Rauner. As much as Speaker Madigan argued Illinois shouldn’t “race to the bottom”  or get  too cheap when it comes to work comp reforms, the other side says they want Illinois to continue to work to the middle of all the United States to be competitive and business-friendly. Epitomizing the approach of Illinois labor, Democratic Jay Hoffman agreed everyone wants Illinois to be more competitive in the WC field but, in his words, “not on the backs of injured workers.” We hope the sore backs of injured workers also survive all the public relations fluff coming from our Capitol.

The Committee hearing featured a former Indiana work comp official who is now a Plaintiff/Petitioner attorney highlighting how several injured Illinois workers would have been less happily treated if injured in Indiana and subject to that state’s second-lowest-WC-costs-in-the-U.S. benefit structure. In response, Greg Baise, the current president of the IMA or Illinois Manufacturers’ Association asserted he didn’t want Illinois WC to turn into a copy of the Hoosier state’s WC program. Greg indicated “….what we’re looking for is a fairness in the system.” Baise felt the number one WC complaint his organization regularly hears is the growing cost of workers’ compensation in Illinois in relation to our sister states.

The Committee as a Whole testimony included lots of workers injured on the job in other states, including Oklahoma as well as Indiana. The testimony wasn’t specifically directed at the current proposed WC changes from the Rauner administration. Instead the focus of the endless and somewhat boring testimony was implicitly directed at keeping IL benefits moderate to higher than other states.

A group of employer associations indicated they don’t want to reduce workers comp benefits for injured workers, but they do want to root out what they asserted was work comp “fraud” by increasing the causation standard to insure an actual injury occurred at the workplace before any benefits were due. Just before the full-day joint House-Senate hearings, several Illinois business groups held a press conference applauding the focus on reforming workers’ comp in Illinois. However, many were critical the legislative hearings were too one-sided.

Stephen Schneider, the American Insurance Association (AIA) Midwest region vice president testified on the effects of the 2011 workers’ compensation reforms and urged further reforms might be needed.  Mr. Schneider represented a coalition of insurers which includes AIA, the Illinois Insurance Association (IIA) and the Property Casualty Insurers Association of America (PCI). His testimony outlined a 2014 report by the Illinois Department of Insurance which ranked Illinois as the most competitive state in the country for workers’ compensation insurance. The study indicated there are 333 insurers authorized to compete for WC insurance business. Schneider also indicated further reforms may improve the system for both employers and employees. He feels additional WC reforms should include addressing abuses associated with the practice of dispensing prescription drugs by doctors or in non-pharmacy settings. He also indicated there is a need for a renewed examination of the present IL WC medical fee schedule, suggesting as an alternative the use of a Medicare rate-based schedule, as many other states use.

Our vote on all of it is stop worrying about the legislative branch of government and focus on WC administration and our administrators. We feel the IL WC system needs to allow the current IWCC Arbitrators and Commissioners to lead our  troubled state and its WC claims to rank in the mid-teens or twenties in the Oregon WC Insurance Premium report that will be posted next year. Solid professionals like Josh Luskin, Mike Brennan, Kevin Lamborn and Ruth White are knowledgeable and moderate WC veterans who will require “real” accidents and disability/impairment to be demonstrably present before they consider significant awards. They can’t do so unless and until we give them the chance to show us their stuff. As we told you last week, we don’t need new legislation, we need better thinkers to implement the IL WC Act as written.

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

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Synopsis: Couldn’t IL House Speaker Madigan Paid for Coffee at Starbucks® or Panera® and Informally Learned How the IL Supreme Court Would Rule on the Fake Pensions Speaker Madigan Helped Create and Now Can’t Change?

Editor’s comment: Speaker Mike Madigan has been around the IL General Assembly for almost half a century. He is also the Chairman of the Democratic Party of Illinois. He has been a member of the Illinois House since 1971. If you do the math, he has been around for everything financially bad that has happened in our state government for 44 years and still counting. He is an honest man and strong personality but you will never see or hear him take credit or blame for anything. If you think we are overstating this and being unfair, we ask—how do you justify being the long-time and dominant leader of a state government that is over $100,000,000,000 in debt?

The silly thing that just happened is a bill passed in 2013 by Speaker Madigan to “reform” Illinois’ fake pensions was just knocked out by a unanimous IL Supreme Court. The august members of our highest Court affirmed the IL Constitution’s “Pension Clause” that we call the “stick-it-to-the-taxpayers” clause. Basically, if the legislature, in Madigan’s wisdom, wants to give billions to state workers when they retire, taxpayers are stuck with that decision and can’t change it without a change to the IL Constitution.

You might recall the IL Supreme Court recently ruled the lifetime healthcare benefits paid to any IL state government worker who is vested in their fake pension cannot be changed by the legislature. Retired IL State workers don’t have to pay a nickel for full and lifetime group health coverage; only you and I do. The legal fees for fighting the bill to try to change the lifetime cost of healthcare for IL government workers is $1.5M to the attorneys for the government workers. Guess who has to pay the legal bills on both sides? You and I do.

Despite watching his daughter completely lose that debate, in 2013, Speaker Madigan supported and passed a bill to slightly reform IL government pensions. Lisa Madigan, our plucky IL Attorney General fought to have both the earlier healthcare reforms and the current pension “reforms” stick and was basically hooted out of court on both occasions. The combined cost of Plaintiff legal fees in the dual losses for IL taxpayers is going to be around $3M. Ouch.

One of the many problems with this morass is IL Democratic Party Chair Mike Madigan has met, vetted and clearly knows the Democratic Justices on the IL Supreme Court. We ask the rhetorical question—couldn’t he have sprung for coffee to ask them the informal question about how they felt about the “Pension Clause” and what the chances of getting the fake pensions reigned in? Did we really have to fight this through the Circuit and now Supreme Court and blow $3M of the taxpayers’ dough to summarily lose?

IL Legislative Fake Pensions Can’t Truly be “Funded”—Can We Dump Them?

For everyone who is interested enough to read it, let’s look at just one fake pension that you can’t and won’t ever make sense of—legislative pensions. Right now, IL legislators make about $80K a year. Their pension contribution for a married legislator is about 10% of that income or $8K a year. They only have to be a legislator for 4 years, yes, 4 years to be fully vested. That means they only have to put in $32K in the fake pension program to be fully vested. When they reach the right age, their pensions start at 85% of the highest pay or $68K a year. You may note they get their entire contribution back in six months of retiring. They also get 3% compounded increases each year guaranteeing within four or five years, they are getting as much as they made working as an IL legislator or more. After something like 20 years, their pensions will be double.

How about we pay legislators when they legislate and stop paying them when they stop working for us? Does that seem too hard to understand? Can we consider a constitutional amendment to protect taxpayers so we only have to pay government workers when they are working in government and not the rest of their lives? What rhymes with welfare?

When you hear anyone complain IL State Government doesn’t pay enough to contribute to such pensions, please note such pensions are almost unfundable—by that we mean, our state government would have to pay their legislative salaries at $80K a year and probably add $400-500K a year for the four years to have enough of a kitty to pay them the amount they would be due on an annual basis following retirement. The math on those amounts cannot be challenged—it is immutable. We don’t feel Illinoisans understand how much these pensions truly cost. The current annual cost of funding these “unfunded” pensions is around a quarter of a billion dollars and continues to increase. We assert no state pays that much to its legislators and Illinois shouldn’t either.

In our view, all IL state fake government pensions need to be completely retooled. In our further view, as the IL Supreme Court has found the “Pension Clause” to be the irresistible force or the immovable object, the entire IL Constitution has to be reconsidered on the issue of fake pensions. We appreciate your thoughts and comments.

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Synopsis: CMS Appeal Rights Webinar Breakdown—What We Learned With Regard to Medicare Second Payer Appeals.  Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: As reported several weeks ago, the Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing certain provisions of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART ACT). With this final rule, a formal appeals process is established for applicable plans (liability insurance—including self-insurance, no-fault insurance, and workers’ compensation laws or plans) in situations where Medicare Secondary Payer (MSP) recovery is sought directly from an applicable plan. TO REITERATE—the rule is effective now and applies to demand letters issued on or after April 28, 2015.  

Again recapping, the appeals process established in the final rule parallels the existing process for claims-based beneficiary and other appeals for both non-MSP and MSP, and will be used for appeals involving both pre-payment denials as well as overpayments.

PROVISIONS OF THE FINAL RULE: 

The formal appeals process applies to MSP recovery demand letters issued directly to applicable plans as the identified debtor on or after April 28, 2015. Receipt of a courtesy copy (“cc”) of a MSP recovery demand letter by an applicable plan does not necessarily mean the applicable plan has the ability to file an appeal.

There will be a formal multilevel appeal process for applicable plans where MSP recovery is pursued directly from the applicable plan. The MSP recovery demand letter and any subsequent appeal determination will specify any timeframe or other requirement to proceed to the next level of appeal. There are six steps in the new appeals process and at each level you access, there will be a letter of instruction on procedure to move to the next step if there has not been some level of satisfaction with the result of the prior level of appeal.

The appeal process will be formally applied to the “Demand Letter”, and is not applicable to the initial determination or conditional payment letter because that letter is technically not a demand letter. We correctly noted the six levels in our prior update as:  

Ø  An “initial determination” (the MSP recovery demand letter),

Ø  A “redetermination” by the contractor issuing the recovery demand,

Ø  A “reconsideration” by a Qualified Independent Contractor,

Ø  A hearing by an administrative law judge (ALJ),

Ø  A review by the Departmental Appeals Board's Medicare Appeals Council, and

Ø  Judicial review.

Some other important details covered in the call include:

Ø  Monthly interest will accrue—so we recommend you issue payment for any undisputed amounts so you avoid interest being assessed (assuming you prevail on the appeal of the disputed amounts). Interest would accrue on the amounts being appealed if you do not prevail.

Ø  You need to make a swift decision on whether you wish to appeal—the timing starts rapidly and you are out of luck 120 days from initial determination. If you fail to respond in the time frames given, you lost your right to appeal.

Ø  You must have Proof of Representation if you are representing the plan and it must be current within a year of the appeal. The POR must be submitted with the appeal if not submitted prior to the appeal.

Ø  You must also submit a cover letter and specify the exact issues you are appealing such as relatedness of services, amounts alleged, verification of payments already paid the provider, etc.

Ø  Causation is not CMS’ concern so they don’t care if there is not a determination of liability in a disputed settlement. We interpret that to mean that if you dispute the conditional payments in a case you settled on a disputed basis, you should expect to be liable for the conditional payments because “causation is not CMS' concern” and they only want their money back.

It was also highlighted the applicable plan is the only entity with appeal rights/party status when Medicare pursues recovery directly from the applicable plan. The beneficiary is not a party to applicable plan appeals, however CMS is required to provide notice to the beneficiary of the applicable plan’s intent to appeal and will provide such notice if the applicable plan files a request for a redetermination.

It remains the applicable plan may appeal:

Ø  the amount of the debt and/or 

Ø  the existence of the debt. 

The regulation does not permit applicable plans to appeal the issue of who is the responsible party/correct debtor. Requests for appeal on the basis the applicable plan is not the correct debtor will therefore be dismissed. Medicare’s decision regarding who or what entity it is pursuing recovery from is not subject to appeal.

While the process was fleshed out somewhat, we still believe the process has pitfalls and gaps and how well the appeals process will work is still to be determined. We will follow the process closely and identify those cases in our office in which an appeal may be appropriate and test the process aggressively. If you have any cases which may have the potential, KCB&A has several MSCC certified attorneys to consult with. This article was researched and written by Shawn R. Biery JD, MSCC who can be reached at sbiery@keefe-law.com with any comment or question.

5-4-15; The World of IL Work Comp Looks to Springfield for WC Change; Dan Boddicker, JD on New EEOC Conciliation Standard; New Research on Value of PT versus Back Surgery--Consider Athletico and more

Synopsis: The IL General Assembly “Committee as a Whole” Will Convene Tomorrow to Try to Set Illinois WC Policy for What May Be the Next Seven Years.

Editor’s comment: Governor Bruce Rauner was sworn in a little over 100 days ago. He faced lots of challenges since taking over one of the worst-run state governments in the entire country and maybe the world. He took on the task of trying to make Illinois government more business-friendly. One of the issues he put high on his calendar is additional reforms to the IL WC system. As we expect Governor Rauner to be around for seven more years or until 2022; these legislative changes may be present for his expected two terms in office.

In response, IL House Speaker Mike Madigan is calling a mildly unusual legislative hearing named the “Committee as a Whole” to convene the entire IL General Assembly. They will take testimony and consider the legislative changes proposed by the Governor’s staff. We are told the hearings will be available for you to watch or listen to online—if you have strong interest and want the link to that website, send a reply.

There is no question our IL WC system became an outlier in relation to our surrounding states under former and now disgraced Governor Blagojevich. To win an early primary election, Rod Blagojevich promised complete control of the good ole Industrial Commission to Plaintiff-Petitioner lawyers from southern Illinois. When that group got power, they

·         Changed the name of the place from the IL Industrial Commission to the IL Workers’ Compensation Commission;

·         Retooled funding of the place to create a special insurance premium levy on IL business only;

·         Brought in lots of Plaintiff-Petitioner lawyers as hearing officers to greatly liberalize the system;

·         Provided broad WC coverage theories to encompass questionable conditions/claims and

·         Started awarding dramatically higher WC benefits.

When Governor Quinn got into office, he started to slowly change things for the better. The 2011 Amendments to the IL WC Act were enacted to identify and directly counter many of what were considered IL WC abuses. IL Senate President John Cullerton was quoted as saying lots of government programs, including workers’ comp, were getting a “haircut.” Supporters of the 2011 Amendments hoped IL employers and governments would save at least $500 million a year after strong reduction of medical fees for doctors/hospitals who treat injured employees were scaled back and other significant changes were enacted. The debate over the savings rages on and IL dropped from the third-highest state to the seventh-highest state in the every-other-year Oregon WC Premium rankings.

Four years later, former Gov. Quinn is enjoying his hefty state pension and Governor Bruce Rauner is in for what could be as long as seven more years of service. In the WC field, major business groups and municipalities complain they've seen just a fraction of the promised savings from the 2011 Amendments. Rauner hopes to

·         Toughen “causation” or standards workers must meet to prove their injury is due to their job,

·         Limit the ability of employees to claim an injury while doing literally anything when “traveling” for work,

·         Dramatically reduce reimbursement rates for doctors, hospitals and pharmacies that treat injured workers; and

·         Legislatively grant arbitrators the ability to use American Medical Association impairment ratings guidelines as the sole factor in determining how much a seriously injured worker is paid.

Tomorrow, House Speaker Michael Madigan will convene the rare “Committee of the Whole” meeting to allow all 118 legislative members to consider the state of our State’s WC system. Governor Rauner has his own group of lawmakers who will be sitting in to examine the topic. The defense team at KCB&A will be watching, listening and reporting what happens for our readers.

Here are our thoughts on the four issues above:

·         On causation, we don’t think you need legislation; you need common sense. The new IWCC administration headed by Chair Joann Fratianni-Atsaves is certain to reign in the silly “causation” rulings of the past. Please let them do their jobs.

·         On the traveling employee concept, we again feel legislation is going to be challenging and you still have to actually enforce it—a “traveling employee” on the road is always “in the course of employment.” The question is whether the injury “arises out of employment”—that language is already in the IL WC Act. We don’t feel the typical traveling employee should receive expanded WC coverage if they decide to go to a bar and watch a ball game and fall off a bar stool to get injured in the bar. Such injuries don’t arise out of their work. We need hearing officers to deny such claims or get better hearing officers. We recently reported the Appellate Court, IWCC Division ruling in Nee v. IWCC where the majority appears to assert walking on a normal city street in the city where you work in makes you a “traveling employee” and, when you have that status, tripping over a normal city curb is supposedly compensable—we feel this runs directly contradictory to the last IL Supreme Court ruling on the same facts. We also don’t think walking on a city street has anything to do with traditional definitions of traveling employee status.

·         On cutting payments to doctors/hospitals, we feel WC reimbursements should match and not be less than what major non-WC medical bill payers like Blue Cross/Blue Shield pay for the same care. The State of Hawai’i made their WC medical reimbursements lower than local group providers and chaos resulted. You can only tweak medical reimbursements so much before docs and hospitals tweak back.

·         On implementing impairment ratings as a sole factor in determining PPD value, it will certainly save business/ insurance companies money with potentially drastically lower awards but may also cause lots of consternation and possibly unexpected issues that legislators may not anticipate. We offer this comparison/example:

o    Two people enter a building. One is a friendly visitor, say a college intern who wants to see the company. The other is a worker who is in the course of employ.

o    Both people fall down on a slippery substance left in the lobby by company cleaners who know it is there and took a break before marking the area as dangerous.

o    The college intern and the worker both fall and badly break the same arm.

o    The intern sues for negligence and gets an award of $500K from the premises insurance carrier.

o    The injured worker brings an IL WC claim and gets a rating of 8% of the arm and receives $5K.

o    Please note the intention of the WC system is to provide swift, sure and fair benefits for workers who can’t sue in the courts.

o    This comparison exemplifies our concern about this proposed change to IL WC benefits. A strict interpretation of AMA ratings equating to PPD value may result in nominal compensation for serious injuries. The Arbitrator may have no room to “judge” the case and reach a reasonable middle-ground.

o    While there are constant comparisons between the IL WC system and the IN WC system, can we also compare Illinois to Wisconsin, Michigan and Iowa?—they are clearly included in our competition.

o    We don’t want the IL WC system to award giant settlements or any WC benefits for injuries/conditions unrelated to work.

o    Governor Rauner is quoted as saying he wants a WC system to be “competitive, reasonable and balanced.”

o    We don’t feel impairment ratings are uniformly reasonable and balanced—they are simply cheap.

o    Please also remember if you are going to make impairment ratings the sole calculus for permanency partial disability evaluation, we are certain we are going to have to fight lots more wage loss differential or “odd lot” T&P claims. Those exposures are dramatically higher and more expensive to fight. PPD values need to stay somewhat fair and comparable on serious injuries to avoid a shift by the Plaintiff-Petitioner bar in their focus on seeking reasonable benefits.

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

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Synopsis: U.S. Supreme Court to EEOC—The Courts will be Watching Your Conciliation Efforts! Analysis by Daniel J. Boddicker, J.D.

Editor’s comment: A unanimous SCOTUS resolved a dispute between the Federal Appellate Circuits by holding Title VII permits limited judicial review of whether the EEOC has fulfilled its duty to attempt conciliation prior to suit. We consider this a win for U.S. business as it may avoid your company being sued by the EEOC with their effectively unlimited litigation budget.

Before suing an employer for discrimination, the Equal Employment Opportunity Commission (EEOC) must attempt to resolve  perceived unlawful workplace practices through informal methods of conciliation. In Mach Mining, LLC v. Equal Employment Opportunity Commission, SCOTUS held a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. The Supreme Court reasoned the scope of that review is narrow and set out a standard for future court’s review of conciliation efforts. This decision gives some clarity to a historically confusing section in Title VII.

Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § 2000e et seq., sets out a multi-step procedure wherein the EEOC enforces the statute’s prohibition on employment discrimination. If the EEOC finds reasonable cause an allegation has merit it must “endeavor to eliminate alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Said language is mandatory and the duty it imposes serves as a necessary precondition to filing a lawsuit pursuant to Title VII. Nonetheless, the EEOC holds the ultimate decision whether to accept a settlement or instead bring a lawsuit. Only if its attempt to conciliate has first failed may the EEOC file suit against an employer. 

In Mach Mining, a woman filed a charge with the EEOC claiming Mach Mining, LLC, refused to hire her as a coal miner because of her sex. The EEOC investigated the allegation and found reasonable cause to believe Mach Mining discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. In a letter announcing its determination, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution, promising a Commission representative would soon contact them to begin the conciliation process. Approximately one year later the EEOC sent a second letter stating such conciliation efforts as were required by law occurred and were unsuccessful and any further efforts would be futile.

The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The complaint alleged all conditions precedent to the institution of this lawsuit—including, an attempt to end the challenged practice through conciliation—were fulfilled. In response, Mach Mining disputed that allegation and asserted via an affirmative defense the EEOC failed to engage in good faith conciliation efforts prior to filing suit. The EEOC moved for partial summary judgment on that issue, which was denied by the District Judge. Thereafter, the EEOC appealed to the Seventh Circuit Appellate Court seeking reversal. Upon de novo review, the Appellate Court reversed, holding the statutory directive to attempt conciliation is not subject to judicial review. Given the obvious split amongst Appellate Circuits, SCOTUS granted certiorari to address whether and to what extent such an attempt to conciliate is subject to judicial review. Ultimately, SCOTUS vacated the judgment of the Seventh Circuit and remanded the case for further proceedings consistent with the opinion.

Justice Kagan (writing for a unanimous court) explained Title VII pronounces certain concrete standards pertaining to what the EEOC’s efforts at conciliation must entail. The methods necessarily involve communication between parties, including the exchange of information and views. They involve consultation and/or discussion, an attempt to reconcile different positions, and a means of argument, reasoning, or entreaty. SCOTUS held the EEOC must tell the employer about the claim, what practice has harmed which person or class, and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. If the EEOC does not take said actions, it has not satisfied Title VII’s requirement to attempt conciliation.

In discussing the proper scope of judicial review of the EEOC’s conciliation activities, SCOTUS retained a narrow scope. It held the appropriate scope of review enforces the statute’s requirements, that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice, but goes no further.  

In her opinion, Justice Kagan discussed the party’s positions on scope of judicial review and chose to espouse her own standard rather than the obviously one-sided standards proposed by the EEOC and Mach Mining respectively. SCOTUS stated contrary to the EEOC’s position, its two letters do not themselves fulfill the conciliation condition: The first declared only that the process will start soon, and the second only that it has concluded. SCOTUS stated to treat the letters as sufficient is simply to accept the EEOC’s unverified word that it complied with the law. The point of judicial review is instead to verify the EEOC’s word, that is, to determine the EEOC actually—and not just purportedly—attempted to conciliate a discrimination charge.

SCOTUS refused to accept Mach Mining’s suggestion for a review based on a standard set out in the National Labor Relations Act (NLRA), i.e. whether the EEOC negotiated in good faith over a discrimination claim. SCOTUS noted Mach Mining’s proposed code of conduct conflicts with the latitude Title VII gives the EEOC to pursue voluntary compliance with the statute. It noted the EEOC need only endeavor to conciliate a claim, without devoting a set amount of time or resources to that project. Further, the attempt need not involve any specific steps or measures; rather, the EEOC may use whatever informal means of conference, conciliation, and persuasion it deems appropriate. The Court stated Mach Mining’s proposed review would also flout Title VII’s protection of the confidentiality of conciliation efforts. SCOTUS declared to accept Mach Mining’s proposed standard would not enforce the law Congress wrote, but would impose extra procedural requirements.

SCOTUS explained the proper scope of judicial review matches the terms of Title VII’s conciliation provision. The EEOC must communicate in some way about an “alleged unlawful employment practice in an endeavor to achieve an employer’s voluntary compliance.” In other words, the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of reasonable cause. Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements ensures the EEOC complied with the statute. Simultaneously, the discretion allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. A court reviews whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

SCOTUS explained a sworn affidavit from the EEOC stating it has undertaken the aforementioned conciliation steps will suffice to overcome any affirmative defense for failure to exhaust administrative remedies. If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a jury will decide. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake conciliation efforts

This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached for questions, concerns, or discussion at dboddicker@keefe-law.com.

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Synopsis: New Study Confirms Physical Therapy Effects Equal to Surgery for Treating Spinal Stenosis Symptoms—Consider Athletico for Such Care.

Editor’s comment: A study reported last week indicates physical therapy for spinal stenosis is as effective as surgery and should be fully considered as a first-choice treatment option. This is the first such study to directly compare a single, evidence-based physical therapy regimen with decompression surgery among patients who agreed to be randomly assigned to either approach. The study focused on self-reported physical function among 169 participants diagnosed with lumbar spinal stenosis after 2 years, but it also tracked function measurements along the way--at baseline, 10 weeks, 6 months, and 12 months. Researchers found not only were 2-year effects similar for the 2 groups (87 who began with surgery and 82 who started with physical therapy), the increase in function followed similar trajectories from baseline on.

This important research was conducted between 2000-2007, and limited to patients 50 years and older who had no previous lumbar spine stenosis and had no additional conditions including dementia, vascular disease, metastatic cancer or a recent history of heart attack. The study, which appears in the Annals of Internal Medicine (abstract only available—click the link), was led by Anthony Delitto, PT, PhD, FAPTA, with coauthors including Sara R. Pilva, PT, PhD, FAAOMP, OCS, Julie M. Fritz, PT, PhD, FAPTA, and Deborah A. Josbeno, PT, PhD, NCS. The findings have been reported in Reuters, the Pittsburgh Post-Gazette, Medpage Today and other outlets. According to an editorial that accompanies the article (sample), what makes this research important is it restricted the nonsurgical approach to a single physical therapy regimen and participants—all of whom were prequalified for surgery—consented to a randomized treatment approach. Previous studies focused on surgical vs. (mostly unspecified) "nonsurgical" approaches, and some allowed patients to self-select their treatment groups.

From evaluation to discharge at Athletico, their physical therapists can help back pain in many ways and below are a few examples of how.

1.         During the evaluation the worker’s past medical history will be reviewed so any prior injuries, surgeries or medical conditions that could affect spinal health are uncovered and can be addressed if appropriate or necessary throughout ongoing treatment.

2.         The injured worker’s posture will be assessed and reviewed with a progression of corrective strategies initiated throughout treatment if deficits exist.

3.         The licensed physical therapist will want to know more about their patient’s occupation, daily household activities, hobbies and recreational sports so the worker can be educated in safe spine positioning, body mechanics and even ergonomics to help decrease any possible repetitive stress that may exist.

4.         A strength assessment will be performed for the worker’s core muscles, scapular stabilizers and hips/lower extremities as needed with a progression of exercises given throughout the course of treatment to improve strength, stability and motor control.

5.         Joint range of motion and tissue flexibility will be evaluated with education and performance of stretching techniques as well as manual work per the physical therapists’ discretion.

6.         Many therapists have advanced training to  assess spinal joint range of motion and restrictions and through the application of manual therapy techniques can restore motion at spinal segments.

7.         Also muscle energy techniques may be administered to also normalize joint integrity. 

8.         To help manage pain, the Athletico therapist may utilize a variety of different therapeutic techniques to ease discomfort such as heat, ice, ultrasound, TENS or traction.

9.         Pain can cause stress and uncertainty so many times a physical therapist helps most just by listening and encouraging through difficult times.

To learn more about this new study or to schedule care at one of the 330 Athletico locations, go to their website at http://www.athletico.com/our-company/the-athletico-story/ or call Mike Trombetta, their Director of Industrial Rehabilitation at 630-575-6209.

4-27-15; Appeal Rights Coming to Some Medicare Issues by Shawn Biery, JD, MSCC, IME Docs--Never Send an Examinee Away Due to Language Barriers: Lindsay Vanderford, JD on Municipal Settlement Battle...

Synopsis: Appeal Rights Coming to Medicare Second Payer Issues Tomorrow!—Will It Work as Well as All Other Federal Programs!!  Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: The Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing certain provisions of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART ACT). With this final rule, a formal appeals process is established for applicable plans (liability insurance—including self-insurance, no-fault insurance, and workers’ compensation laws or plans) in situations where Medicare Secondary Payer (MSP) recovery is sought directly from an applicable plan. It is important to note—the rule is effective tomorrow April 28, 2015, and applies to demand letters issued on or after April 28, 2015. See below for a link to register for tomorrow’s CMS webinar if you want to learn more.

By way of recap, you may recall Medicare is a secondary payer to liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans for injuries claims which may be the responsibility of one of those types of "first" payers. Medicare might make "conditional" payments, if they lack knowledge of the first payer or if payment for items or services has not been made promptly or may not be expected to be made promptly by the applicable plan. The payment creates the expectation these payments will be reimbursed to the appropriate Medicare Trust Fund if there is a settlement, judgment, award, or other payment (hereafter referred to as "settlement"). This includes situations where Ongoing Responsibility for Medicals (ORM) exists and once there has been a settlement, Medicare pursues recovery of its conditional payments.

If an MSP recovery demand is issued to the beneficiary as the identified debtor after April 28, 2015, then the beneficiary has formal administrative appeal and judicial review rights. There was no formal administrative appeal rights or judicial review previously and CMS' recovery contractor addressed any dispute raised by the applicable plan, so prior to this final rule there was no multilevel formal appeal process for applicable plans.

The appeals process established in the final rule parallels the existing process for claims-based beneficiary and other appeals for both non-MSP and MSP, and will be used for appeals involving both pre-payment denials as well as overpayments.

PROVISIONS OF THE FINAL RULE: 

The formal appeals process applies to MSP recovery demand letters issued directly to applicable plans as the identified debtor on or after April 28, 2015. Receipt of a courtesy copy (“cc”) of a MSP recovery demand letter by an applicable plan does not necessarily mean the applicable plan has the ability to file an appeal.

There will be a formal multilevel appeal process for applicable plans where MSP recovery is pursued directly from the applicable plan. The MSP recovery demand letter and any subsequent appeal determination will specify any timeframe or other requirement to proceed to the next level of appeal. The process then moves forward as such:

Ø  An “initial determination” (the MSP recovery demand letter),

Ø  A “redetermination” by the contractor issuing the recovery demand,

Ø  A “reconsideration” by a Qualified Independent Contractor,

Ø  A hearing by an administrative law judge (ALJ),

Ø  A review by the Departmental Appeals Board's Medicare Appeals Council, and

Ø  Judicial review.

It is important to note the applicable plan is the only entity with appeal rights/party status when Medicare pursues recovery directly from the applicable plan. The beneficiary is not a party to applicable plan appeals. However, CMS is required to provide notice to the beneficiary of the applicable plan’s intent to appeal and will provide such notice if the applicable plan files a request for a redetermination.

Proper proof of representation must also be submitted in writing prior to or with a request for appeal in order for an attorney, agent or other entity to file an appeal on behalf of an applicable plan or act on behalf of an applicable plan with respect to an appeal that has been requested. Appeal requests without proper proof of representation will be dismissed. Proper proof of representation may be submitted with a request to vacate the dismissal, however the strongest course of action is to make sure proper proof of representation has been submitted when requesting a redetermination. It is also important to note separate proof of representation is required even where an applicable plan may have identified an agent for recovery correspondence as part of the Medicare, Medicaid & SCHIP Extension Act of 2007 Section 111 reporting process.

The applicable plan may appeal:

Ø  the amount of the debt and/or 

Ø  the existence of the debt. 

The regulation does not permit applicable plans to appeal the issue of who is the responsible party/correct debtor. Requests for appeal on the basis the applicable plan is not the correct debtor will therefore be dismissed. Medicare’s decision regarding who or what entity it is pursuing recovery from is not subject to appeal.

Tomorrow, CMS will be presenting a webinar on “Applicable Plan” Appeals which will include: an introduction to the appeals process (as the process is new to applicable plans), information on the appeals process specific to applicable plans, and tips/suggestions to applicable plans regarding the recovery process, including appeals. Anyone interested can take part:

Ø  Date: April 28, 2015

Ø  Start time: 1:00 PM Eastern time.

Ø  URL: https://webinar.cms.hhs.gov/r2g9kffqc46/

They ask you begin logging in approximately 15 minutes before the start time, due to the large number of participants anticipated.

It is still to be determined how well the appeals process will work, however we will follow the process closely and identify those cases in our office in which an appeal may be appropriate and test the process aggressively. If you have any cases which may have the potential, KCB&A has several MSCC certified attorneys to consult with. This article was researched and written by Shawn R. Biery JD, MSCC who can be reached at sbiery@keefe-law.com with any comment or question.

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Synopsis: Note to IME Docs—Never Send Examinees Away Because They Need an Interpreter—Just Call and Get One!!

Editor’s comment: We had an IME doctor send away an examinee last week because the worker didn’t speak conversational English and the IME doc was not comfortable with having a family member interpret. The doctor didn’t call our office and wanted a “no show” fee due to the problem. We feel IME’s cost a lot of money and no show fees are also expensive—let’s not waste money and time when this issue can be so easily corrected.

Please note the defense team at KCB&A sets around 150-250 IMEs every year. Due to that volume of IME’s that we are handling, we are not strongly aware of the language abilities of the claimants who will be attending examinations. We don’t meet the claimants and we cannot talk to them unless we have prior consent from their attorneys. We also note it is very rare for a Petitioner attorney to contact us prior to an IME and let us know the language abilities of claimants.

What this IME doc and many of our readers were unaware of are the online and “real-time” available services to get telephonic interpretation of hundreds of languages almost instantaneously. If you contact:

·         Transcend Services has qualified and great interpreters waiting for your call and can handle over 200 languages. Take a look at Transcend’s website online at http://www.transcendservice.com/Translation-Interpretation-Services.cfm or on a 24/7/365 basis, call 877-838-3032;

·         AccessOnTime has an established national network of credentialed linguistic specialists, AccessOnTime provides clear, fast and accurate translation and interpretation services. You can find out more at: http://www.accessontime.com/language-services.shtml or call 888-745-7575.

So, as an IME doc that isn’t comfortable about your discussions with an examinee or at any other time anyone in our industry needs rapid and accurate translation, give us or the adjuster a phone call to discuss and then contact one of these great companies.

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Synopsis: Are We Settled Yet? In an important ruling as it relates to municipality settlements, the Illinois Second District Appellate Court held a settlement was not final and binding since the City Council did not approve it. Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: In a recent opinion, the Illinois Second District Appellate Court in essence affirmed the Circuit Court of Winnebago County’s denial of a motion to enforce a settlement agreement with the City of Rockford. The Appellate Court took the matter pursuant to Illinois Supreme Court Rule 308 on certified questions from the Circuit Court. The certified questions center around the Illinois Municipal Code and the local ordinances of Rockford related to settlement of pending litigation with the approval of the City Council. 

On the eve of trial, Plaintiff Meade, and Rockford reached a settlement agreement at a pre-trial conference, and consequently, the trial date was stricken. Subsequently, Plaintiff signed a written settlement agreement drafted by Rockford. However, when the settlement was presented to the City Council a few weeks later, that body (including some of the council members whom had been present at the settlement conference and had approved the settlement offer at that time) voted to reject the settlement agreement. Plaintiff moved to enforce the settlement agreement, and the Circuit Court of Winnebago County denied the motion but certified certain questions for the Appellate Court to answer. The Appellate Court answered all the certified questions in the negative. Pursuant to Rockford’s Ordinance, settling with Rockford for over $12,500 requires City Council approval, and signing a settlement document agreed to by all parties does not constitute a promise that approval will be consistent when the votes needed to approve the settlement before the City Council are taken.

Plaintiff alleged she was injured on May 10, 2009, when she was standing on the parkway near a street in her Rockford neighborhood, and the ground gave way, causing her to fall into a sinkhole. She filed suit against Rockford in 2010 seeking damages stemming from her injuries. Trial was set to begin on January 27, 2014. After numerous attempts at negotiation, $600,000 was offered by Rockford’s attorney and accepted by Plaintiff. Accordingly, the Circuit Court docketed the case as settled and struck the trial date. The settlement agreement did not state it was subject to approval by the City Council. When the settlement was presented to the City Council for approval, two of the council members who had previously approved the settlement changed their votes. The vote of the City Council was  seven (7) to five (5) against approving the settlement. It is undisputed that, if all City Council members had been present at the meeting and had voted consistently with their earlier positions, the settlement would have passed.

Although the Appellate Court opinion appeared to disapprove of the result of the proper application of legal precedent to determine the settlement agreement could not be enforced, it reiterated the Circuit Court had tools for dealing with parties disregard for its time and the time of all parties involved. In that same vein, the Appellate Court discussed using sanctions pursuant to Illinois Supreme Court Rule 219 for conduct demonstrating a willful disregard for the orders and deadlines set by the trial court or that unnecessarily and vexatiously multiplies the cost of litigation borne by the other party. The Appellate Court went on to describe the circumstances presented in the Circuit Court as ripe for a possible finding of Rockford’s conduct as sanctionable. It is obvious the Appellate Court disapproved of the City Council’s tactic in approving and subsequently disapproving of the settlement.

The analysis and writing of this article was performed by  Lindsay R. Vanderford, JD.  Lindsay can be reached with any questions regarding general liability, municipal defense, and workers’ compensation at lvanderford@keefe-law.com.