4-16-2018; Not Just One--Two Federal Courts Rule Long-Term LOA Is Not Required Under ADA; Kevin Boyle JD on UR in Indiana WC and more

Synopsis: Not Just One But Two Federal Courts Rule A Long-Term LOA Is Not Required Under ADA. I consider this required reading for all HR, WC and Employment Law folks.

Editor’s comment: I was surprised to see the Eleventh Circuit is the next Federal Appellate Court to find a long-term leave of absence is not a reasonable accommodation under the ADA. This Court is the highest federal court before a legal issue goes to the U.S. Supreme Court. A short while ago, our Seventh Circuit ruled multi-month leaves of absence, even those defined in term and requested in advance, are not required by the Americans with Disabilities Act or ADA.

I do feel this legal concept may also lead to more terminations in work comp settings where the leave, even with TTD ongoing, drags on for months or years—if you need help in handling such situations on the WC side, send a reply.

Either way, the Eleventh Circuit Court of Appeals followed the concept outlined in the Seventh Circuit ruling and issued a similar opinion, allowing for termination of the worker. These two decisions portend a growing movement indicating to me the federal courts are attempting to curb the abuse of long-term leaves of absence under the ADA which has been baffling and challenging to U.S. employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities, Plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He did not have corrective surgery during this time, so under the employer’s medical leave policy, he was granted another three-month medical leave. At the end of this period, a total of six months of leave, the employee was still not medically cleared to return to work. He told the employer he had another doctor’s appointment in a month and would likely be released to work in six weeks, but it was unclear whether he would have any continuing or permanent work restrictions.

Once they learned of his uncertain state, the employer terminated Plaintiff. Claimant sued, alleging failure by the employer to provide additional leave as a requisite ADA “reasonable accommodation.”

The Federal District Court dismissed the claim. On appeal, the Eleventh Circuit Court of Appeals affirmed dismissal of Plaintiff’s claim on summary judgment. Plaintiff acknowledged ADA case precedent indicates U.S. employers are not required to provide indefinite leave. However, Claimant argued prior decisions involved situations where employees suffered from longstanding medical conditions that could continue indefinitely. In this case, Plaintiff contended an unspecified leave under ADA was reasonable because there was a projected end date and once concluded, his medical condition might be resolved without the need for additional leave.

The Eleventh Circuit rejected this argument finding even though Plaintiff would might recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted the employer did not violate the ADA because it already provided six months of leave and Plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual under ADA.  Thus, the Federal Appellate Court found regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

From this ruling, it is clear in my mind our local Seventh Circuit is not the only Federal Appellate Court seeking to invalidate the EEOC’s expected and well-settled position long-term leaves are required as “reasonable accommodations” under the ADA.  If other federal circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods. As my law partner, Brad Smith always says—“document, document, document.”

If an employee cannot medically substantiate your worker may return to work near the expiration of FMLA leave, you should have greater legal flexibility in determining whether or not to accommodate the request. While you should be aware of this apparently growing trend and choose to adjust your leave/accommodation approaches accordingly, you still have to approach long-term and indefinite leave requests carefully as there are conflicting decisions from other circuits and the EEOC’s position may remain unclear unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits and affirms these new rulings.

I appreciate your thoughts and comments. I am happy to help with FMLA or ADA issues, just send a reply. If you have thoughts on this topic, please post them on our award-winning blog.

Synopsis: Indiana’s Utilization Review Procedures Differ from Illinois—Don’t Be Confused. Comment by Kevin Boyle, J.D. of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Beware when using Utilization Reviews for Indiana Worker’s Compensation Claims.

Prohibitions on the use of “Utilization Review” (“URs”) are not necessarily mentioned in the Indiana WC statutes, and the judges may use URs if needed in their evidentiary analysis. In general, however, URs are not credible medical opinions, but rather insurance company efforts to investigate proposed treatment. Also, just using a UR can spark bad faith claims, too, as an attempt to thwart the treating physician’s recommendations to save money and not provide authorized medical care.

Adding to the analysis is the fact that Indiana UR rules, laws, and regulations are also generally covered in the separate statutory insurance laws and a specific statute for “Drug Utilization Review.” Also, as mentioned in the last few weeks, brand new 2018 legislation also will affect the UR process and drug prescriptions that we are still waiting to see how they will play out.

It can be complicated, so try to stick to the basics. The first basic Indiana rule is that Employer/insurer controls the medical care selection. There are some exceptions, for example emergencies, but let’s just stick with the standard situation. The second rule is that although Employer selects the medical provider, Employer can’t designate the medical treatment. The selected doctor tells us what needs to be done. 

Employers can ask for a second opinion, but Employer can’t tell the doctor to change the treatment. If you think the proposed treatment is not medically necessary, you need a medical opinion to dispute it, and don’t just UR it and rely on the UR. The second medical opinion should be quickly obtained, and it should be by a doctor who actually sees patients and has some experience in Indiana work comp cases. 

Remember also that here are “IWCB-ordered IMEs” that can be used more or less for second opinions. Technically speaking, some people call their “second opinions” “independent medical evaluations” or “IMEs.”  It can get confusing in Indiana, when Employer gets a second opinion, but calls it an IME. It gets more confusing later then if/when the IWCB orders an IME….  Who’s the IME now? So, I usually try to call second opinions in Indiana just that: “second opinions;” and save the “IME” title only for those instances with actual IWCB-ordered IMEs.

In summary, an internal UR/peer review isn’t usually considered to be a credible medical opinion by a qualified provider, and trying it can be problematic. As a result, URs aren’t worth much for evidence in Indiana, so please do more than merely use a UR to deny/dispute the proposed medical treatment.  For more info, email me at kboyle@keefe-law.com

Synopsis: Have you heard the news? There are brand new Indiana Section 15 Full and Final Settlement requirements. Email me for immediate info, kboyle@keefe-law.com, and we’ll have an update in next week’s newsletter, too.  

4-10-2018; Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?; Understanding UR or Utilization Review in Workers’ Comp and more

Synopsis: Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?

Editor’s comment: We were asked this question by a valued reader and wanted to expand our thoughts and recommendations.

Please note when you have any workers’ comp claim, a natural tendency is to avoid your employee—we feel all employers should actually do the opposite.

Never, ever trust the workers’ compensation system to work in your best interests in a work comp claim.

Other than for accrued vacation time, we feel you need to have a strong HR policy to tell all workers and their supervisors to stay in close contact on at least a weekly basis. Other than vacations, we feel this applies to any and all PTO, WC or other lost time.

Don’t let anyone “disappear” from sight. Someone out on work comp or sick leave may want to get away from you and do their best to vanish while still getting paid and accruing other benefits. Whenever we see a worker off work for months or years, it almost always seems like they have vanished from sight of the employer—don’t fall into that trap.

We are asked all the time—what if the worker has counsel? Isn’t there an “ethical” restriction on staying in touch and talking to such a worker? Well, there is an ethical restriction on me and anyone who is a licensed lawyer, when the worker has their own counsel. Before I can talk to a represented worker, I have to have prior approval from their attorney and/or have the attorney on the call/conversation.

That doesn’t apply to most managers or co-workers who aren’t lawyers. You can and should tell your workers you are going to call them or they are going to accept the call or call you back in a timely fashion. If you don’t hear from them at all, you then need to decide what is best for you and your company. In our view, you can and should consider cutting off TTD and other benefits to insure you are receiving regular communication.

What Can and Should You Discuss With an Injured Worker Who is Out on Benefits?

When you talk with the injured employee, never, ever encourage them to terminate their counsel or drop their claim. We are certain if you make this claims mistake you may be fired or at least receive a challenging call from Claimant’s counsel. We also feel you should stay away from any discussions of settlement.

When you or your team talk to a represented claimant, we feel you can and should check to insure

*        Reasonable, necessary and related medical bills are being paid

*        The worker is receiving TTD/TPD or disability checks

*        The worker is happy with medical care

*        The worker is progressing along expected medical recovery path

*        Where appropriate, let them know their job is waiting

If you need help with drafting/implementing a personnel policy to maintain regular contact with all workers out on work comp and other leave, send a reply.

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

Synopsis: Understanding UR or Utilization Review in Workers’ Comp.

Editor’s comment: Utilization review (UR) can and should regularly be engaged by employers, insurance carriers and TPA’s to dispute reasonableness and necessity of medical treatment and lost time. (Sec. 8.7 of the IL WC Act). This concept was previously unknown to the Illinois workers compensation system and continues to be developed in the years to come. Claims adjusters should assume Illinois WC attorneys on both sides are learning this process from square one. We hope claims adjusters who know UR from other states can quickly adapt their UR protocols to Illinois.

One of the best aspects of UR in this State is a UR denial has presumptive effect—Claimant has to overcome a presumption the final UR determination is accurate. For that reason, we feel it can be more valuable and less expensive than some IME’s in corralling medical care.

The 2005 amendments to the Illinois Workers’ Compensation Act codified a political trade-off between business and labor. Business, concerned over rapidly rising medical costs, which comprised approximately 50 percent of total workers’ compensation spend, agreed to a 7.5 percent increase in the schedule of benefits (excluding person as a whole claims), increased minimums, and increased death benefits in exchange for a medical fee schedule, utilization review, and WC fraud provisions.

Utilization review addresses the reasonableness, necessity, and frequency of treatment.

What Is Utilization Review?

Section 8.7 of the Illinois Workers’ Compensation Act defines utilization review as: [T]he evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care or nationally recognized peer review guidelines as well as nationally recognized evidence based upon standards as provided in the IL WC Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment.

820 ILCS 305/8.7(a) (2005)

Section 8.7(b) requires the utilization review provider must register every two years with the Department of Financial and Professional Regulation.

Section 8.7(e): A utilization review program shall have written procedures to ensure that patient-specific information obtained during the process of utilization

Utilization review programs monitor quality and efficiency of health care delivery by achieving common understanding of excellence among employers/insurance carriers/TPAs, medical providers, and patients through the establishment of standards, education and communication and accreditation. You can find out more about utilization review at: http://www.urac.org/.

In addition to optimizing medical treatment, we assume UR is used to demonstrate a claimant should be back at modified or full work and is over-treating. We confirm for the insurance carriers/TPA’s that your defense counsels and Petitioners’ counsels are “flying by the seat of their pants” during the implementation of UR and how it should work.

Your defense counsel will need your expert help in presenting disputes relating to denial of treatment or TTD due based upon UR protocols before the Arbitrators and IWCC.

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

4-2-2018; Understanding Medical Privacy Rights in Workers’ Comp Claims; Kevin Boyle, JD on Important New Indiana WC Legislation--a Must Read and more

Synopsis: Understanding Medical Privacy Rights in U.S. Workers’ Comp Claims. Thoughts and comments by Gene Keefe, J.D.

Editor’s comment: HIPAA or the Health Insurance Portability Accountability Act first became U.S. law way back in 1996. In my view, that was a game-changer for all WC claims handlers and risk managers. The goal of HIPAA was to insure records of medical care and billing were only provided to those who needed to see the records and bills on a “need to know” basis.

HIPAA was intended by the initial drafters to allow electronic transmission of medical records and bills with safeguards for privacy. HIPAA first came about from the need to create standards for the management of electronic medical records/bills within the health care industry. Its purpose is to allow the safe transfer of medical information from one health insurance company to the next, and from one health care provider to another. It is very odd to confirm medical records and billing are still not fully computerized—the WC industry on both sides still struggles for months and sometimes years to get paper medical records when everything should be done on a high-speed, need-to-know basis.

The HIPAA Privacy Rule plateaued in 1999, and required safeguarding of patient information against unauthorized access and disclosure. Since 2003, the HIPAA Security Rule was published and subsequently the HIPAA Enforcement Rule and Breach Notification Rule were enacted in an effort to keep up with technology and meet the demand of patient privacy. In the workers’ compensation arena this means obtaining and securing medical information within the HIPAA rules, as I outlined below.

How are HIPAA and Work Comp Linked?

Workers’ comp’s highest claim cost, on a per-claim basis, is almost always medical care. The cost of surgery and prescription medications continues to soar. Medical costs and processing will continue to be a major and growing factor in all U.S. WC claims handling.

The flow of records and bills from the medical providers to the WC insurers needs to start on the date of loss and continue until claim closure. All sides to a work injury/exposure need to cooperate and coordinate if that is to occur. If there are delays or dysfunction in medical record transmission, injured workers suffer and go to lawyers and the WC Commissions and Boards to complain and complain more. Key to timely and efficient processing of medical bills are records confirming the treatment is reasonable, necessary and related.

HIPAA’s Privacy Rule allows workers’ compensation insurers, third-party administrators and employers to obtain necessary medical information to manage workers’ comp claims. The Privacy Rule for Workers’ Compensation was designed to provide necessary information needed to manage a claim. State laws, in litigated claims, allow for issuance of subpoenas to obtain full medical records and bills as needed.

Merge a HIPAA Release Into Your Incident Reporting Protocols

My law partner, John Campbell and I drafted and promulgated one of the best HIPAA-compliant releases anyone could ever use in a work comp claim. Our HIPAA release is widely used across the country by readers like you. If you get our form, we do recommend you consult with local counsel if you have claims outside IL, IN, WI, IA and MI, as we can’t provide legal advice in the other 45 states. That said, if you want a complimentary copy of our HIPAA-compliant release, send a reply.

The best way to implement a HIPAA-compliant release is to take your incident-reporting form and add the HIPAA release language to it. In this fashion, you will get the worker’s report of the incident to relay to your carrier/TPA and you will have a signed HIPAA release facilitating the smooth flow of records and bills for rapid processing.

Please note the injured worker or their attorney can later withdraw their consent to access to medical records and bills under HIPAA. Federal law allows it. If withdrawal of a HIPAA consent happens at any time, what you then need to understand is in the paragraphs below.

What is the Workers’ Comp “Exception” to HIPAA?

The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers/TPAs, workers’ compensation administrative agencies or employers. These entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways.

If you

·        Don’t have a signed HIPAA release in your work comp claim file or

·        The injured worker or their attorney withdraw the HIPAA consent

you and your claims handling then fall into this odd “workers’ comp exception” to HIPAA where you might be able to get records and bills by confirming you need them for a work comp claim. In such a setting, subpoenas may be issued to get needed records and bills.

On the other hand, if you don’t have a valid consent, you may not be able to review records and bills, as the medical providers may balk at providing needed information. You also have to consider the person who makes the game-changing decision to want an injury or illness to be work-related is the worker—if they don’t want a clear work injury to be a work comp claim, the “protection” to you from the WC exception to HIPAA becomes a challenge. If the worker doesn’t want you to know they have a serious disease or other medical condition and decides not to put forward a work comp claim, you can’t and shouldn’t seek medical records without a signed HIPAA release. For that reason, I don’t recommend clients rely on the WC exception—get a signed HIPAA release as part of the initial investigation of all incidents and keep it in your file.

Our advice to all of our KCB&A readers is to work hard, follow HIPAA or the “exception” to get what you need to manage a claim from a medical perspective. Seek cooperation for all injured workers early and often with a goal of helping them to full or “best possible” recovery. Make it clear to the injured worker and their attorneys where appropriate to let them know you are always being audited and you can’t pay medical bills “in-the-blind,” you need to have supporting records or the medical bills will and have to sit. Future medical authorizations/approvals are also going to sit until you have needed documentation. Make your claim needs clearly known to all sides.

HIPAA rules are constantly being amended, but each governs who, what and when someone can receive medical information on an injured workers’ claim for benefits. Please remember HIPAA also mandates destruction/shredding of WC claim files at the end of handling a claim by any work comp vendor, including lawyers on both sides.

If you have questions or concerns about HIPAA and medical privacy in work comp, please send a reply. We appreciate your thoughts and comments. Please post them on our award winning blog.

Synopsis: Indiana’s New Statutory Worker’s Compensation Changes, Additional Regulations and Penalties for Employers and Insurers. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Two important worker’s compensation bills were signed into law last week by Indiana’s Governor that you need to know about.

First, Indiana Senate Bill 290:

§  Requires Employers to pay benefits within 30 days of an Award being issued and imposes civil penalties against Employers that do not pay benefits with due: $50 for the first offense, $150 for the second, and $300 for the third offense

§  Changes the penalty against Employers that fail to provide notice of work comp coverage to $100 per day, instead of $50 per employee.

§  Allows Employers that have mobile or remote employees to convey notices and information about workers’ compensation coverage to those workers in an electronic format or in the same manner as Employer conveys other employment-related information.

§  Provides that a permanently, totally disabled worker must reapply to the second injury fund for a wage-replacement benefit every three years instead of every 150 weeks.

§  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day. 

§  Specifies that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the U.S. Occupational Safety and Health Administration's regulations.

These changes will be effective July 1, 2018.

Second, Indiana Senate Bill 369:

§  Adopts a drug formulary to restrict opioid prescriptions and abuse. Indiana is adopting the MCG Health’s Official Disability Guidelines which uses a preauthorization process where doctors cannot prescribe “not recommended” medications unless the insurer first approves. It is not yet clear how that process will be implemented by the Indiana Worker’s Compensation Board, especially since insurer utilization reviews are generally disfavored to dispute medical provider recommendations.

These changes will be effective July 1, 2018. However, SB 369 also provides that there will be a ban on reimbursing prohibited drugs effective January 1, 2019, but injured workers taking those meds before July 2018 may continue to do so until January 2020.

Stay tuned for more. If you have questions/concerns about Indiana workers’ comp, general liability, MVA or employment law issues, please contact: kboyle@keefe-law.com