5-15-2017; RBVRS to Hit IL WC--Snoozefest, Savings or Both?; Consider Reassignment to Fulfill ADA Requirements; When to Do Ex Parte Depositions in IL WC and more
/Synopsis: IL Labor/Democrats Offer RBVRS (?!) as New and Blurring Part of IL WC Reforms.
Editor’s comment: A Chicago Democrat presented new IL WC reform legislation incorporating a “resource-based relative value scale” or RBRVS as the physician-healthcare payment system as a cost-savings mega-plum for IL employers and local governments. This concept is now included in the pending workers' compensation bill as part of a compromise with IL Republicans to solve our nutty State's budget deadlock. Please note our State hasn’t had a real “budget” under the current Governor Bruce Rauner.
Sen. Kwame Raoul filed Amendment No. 4 to the “Grand Bargain” or Senate Bill 12 last Wednesday; it remains in the IL Senate Assignments Committee. The proposed change calls for a RBRVS or Medicare-based fee schedule to lower some of the highest workers’ comp medical costs in the U.S. In short, it appears the doctors, hospitals and other health care givers are again being pushed to take moderate to dramatic cuts to demonstrate WC cost savings. This will be the third major cut in medical costs in the IL WC industry since the 2005-2006 Amendments to the IL WC Act were created.
From what we can tell, the IL State Chamber and other business and insurance interests cautiously support this unexpected WC amendment.
What In Tarnation is RBVRS?
As my wife said yesterday—sounds like a complete SNOOZE-FEST! But it seems to be important for many IL WC industry folks to study, learn and start to understand. We assure you we feel it could only be loved by nerds and dweebs but sometimes those folks save you more money.
The AMA has an RBVRS overview online here:
https://www.ama-assn.org/rbrvs-overview
In their clear-as-mud explanation, they say:
The resource-based relative value scale (RBRVS) is the physician payment system used by the Centers for Medicare & Medicaid Services (CMS) and most other payers. The RBRVS is based on the principle that payments for physician services should vary with the resource costs for providing those services and is intended to improve and stabilize the payment system while providing physicians an avenue to continuously improve it.
Sounds simple, sort of like quantum physics--right? Huh?
The RBVRS concept appears to have been implanted into California’s work comp system by their nerds some years ago.
Back to How RBVRS May Come to an IL WC Claim Near You
Stakeholders in the IL WC system feel the expected savings from RBVRS would depend on the percentages of Medicare reimbursement that would be allowed for doc’s and hospitals by the IL Workers’ Compensation Commission, should Amendment No. 4 and “the Grand Bargain” in SB 12 pass and then be signed by Gov. Rauner. The new bill directs the IWCC to set the rates, but establishes parameters tied to where current medical reimbursement rates stand.
Jay Dee Shattuck, executive director of the Illinois Chamber of Commerce’s Employment Law Council was quoted as saying “We believe the change will bring Illinois’ workers’ compensation medical fee reimbursements more in line with medical fee schedules of other states around the country.” He also said “It more fairly reimburses management and evaluation service codes, which are some of the lowest in the country, and reduces the codes — such as surgery — that are some of the highest in the country.” As we have advised our readers in the past, Jay Shattuck and Todd Maisch, the President of the IL State Chamber are among the top business leaders in the WC field in this state. If they did their homework and still like RBVRS, it is probably a solid idea, not matter how difficult and boring RBVRS may be to understand. If you are interested in learning more about IL WC reform and/or cutting workers’ comp costs, consider joining the IL State Chamber and the ELC—check out their website at www.ilchamber.org.
Illinois currently has a home-grown, charged-based medical fee schedule based on geographic areas called "geozips." Illinois medical reimbursement rates are considerably higher than our State's neighbors, even with a 30% across-the-board reductions created from the 2011 Amendments to the IL WC Act, per the Illinois Policy Institute.
WCRI or the Workers’ Comp Research Institute’s recent stat-rat study confirmed the average total cost per workers’ compensation claim in Illinois has decreased 6.4% since 2010 primarily due to significant cuts in medical costs. However, our overall WC costs continue to outpace most of the 17 other states studied in WCRI’s recent report. Before that overall WC claim decrease, Illinois had the second-highest WC Medical Fee Schedule — behind only Alaska — in a comparison with 43 other states and the District of Columbia, WCRI said in a 2016 study. After the IL WC Medical Fee Schedule reduction, Illinois had the 10th highest fee schedule rates among those 43 states when measured as a percentage of Medicare's maximums, WCRI said.
So How Would RBVRS Happen? How Would It Affect Your Claims?
Senator Raoul’s proposed IL WC Medical Fee Schedule would continue to use four regions for non-hospital fee schedule amounts and 14 regions for hospital schedules. It would task the IWCC, within 45 days of the bill’s enactment or sometime later this summer, to determine the Medicare percentage amount for each current procedural terminology and diagnosis-related group code using the most recent data available from the Centers for Medicare and Medicaid Services.
Within 30 days after the IWCC determines the percentage rates, it would be required to make several adjustments:
- If the percentage for a particular CPT or DRG code is 125% of the Medicare rate or less, it would be set at 125%.
- If the percentage is more than 125% but less than 150%, the rate would not be adjusted.
- If the rate is greater than 150% of Medicare but less than 225%, the rate would be set at the higher amount of 150% or 85% of the most recent maximum amount allowed for that CPT or DRG code in the current fee schedule.
- If the Medicare percentage is greater than 225% but less than 428.57%, the amount would be set at 191.25% of Medicare or 70% of the current maximum rate.
- If the percentage is greater than 428.57%, it would be set at 300%.
By Sept. 1 of each year, the IWCC would be required to raise the maximum fee for each CPT and DRG code by exactly half of the most recent annual increase in the urban consumer price index.
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Synopsis: Consider Reassignment to Fulfill ADA Responsibilities to Injured/Disabled Workers.
Editor’s comment: U.S. Employers may not realize you can safely reassign an injured or disabled worker to a vacant position within your organization to reasonably accommodate his or her disability. Instead, some HR and risk managers may mistakenly think a leave of absence is the last reasonable accommodation you should provide.
An employer that offers reassignment as a reasonable accommodation should document, document and document more, says Brad Smith of KCB&A. Send a letter to the injured/disabled employee you are accommodating to confirm for him or her you are seeking to reassign the worker to your open spot. The letter is a necessary step to keep the employer from having to offer reassignment indefinitely. The letter also should explain the worker can't currently be reasonably accommodated in their current job.
Once the letter is delivered, the employer has time to identify an appropriate reassignment.
Whenever and wherever possible, an employer should first attempt to reasonably accommodate the person in his or her current position. Then a leave of absence may be required under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), or both. Once leave starts to disrupt operations to the point reasonable accommodation is no longer “reasonable,” the employer should consider whether the employee can return to his or her current job with or without reasonable accommodation. If not, the employer should consider reassignment as a backup option.
The employer should look at vacant positions at all its facilities, not just the one the employee works at. If you find an open position at another facility, the employee may decline or accept the offer but you may be able to argue you have satisfied ADA to identify and offer the position. An employee with a disability may be required to apply for a transfer before being reassigned as long as all other employees seeking a transfer are required to do so.
Whether the employer has to give a preference to the employee with a disability for the vacant position over other employees is a challenging legal question and ultimately may have to be resolved by the U.S. Supreme Court.
This question may come down to what level of risk you as an employer are willing to accept. Reasonable accommodation is by its very nature something “extra,” for an injured or disabled worker. If an employee with a lasting injury or disability isn't given a preference in assignments/reassignments, then he or she is not receiving anything additional.
Please also note the concept of reassignment is one source of what I feel is appropriate criticism of “benefit-ocracies” in IL State and local governments. For one example, prison guards/correctional officers who are attacked by inmates suffer moderately disabling injuries. Following care to the point of MMI, they may not be able to return to correctional work.
Rather than bring them back to work at other administrative or low-impact light duty positions, they are allowed to remain off all work for months and years to then potentially become “odd-lot” total and permanent disability claimants who may receive several million dollars in benefits. The former gov’t workers become politically beholden to their “sponsors” who give them the biggest “perk” in government—tax-free money from taxpayers. In this government setting, I feel we are going to need to pass laws requiring government officials re-hire or re-assign such workers when light and sedentary work opens up appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Practice Tip for IL WC Attorneys and Claims Handlers—How To Handle an IL WC Deposition When the Other Side Doesn’t Show.
Editor’s comment: Please note depositions in IL workers’ comp are evidence depositions only. Unless the other side agrees, you can’t do a discovery dep in a WC proceeding.
IL WC deps are not technically “set” by notices of deposition—there is no statutory provision for WC dep notices, as there is at common law.
If an IL WC attorney receives a WC dep notice, we still have to agree to attend—if you are going to agree to depose the other side’s expert, confirm you will do so. If you aren’t going to attend upon receipt of a WC dep notice—tell the other side in writing.
The other side either “agrees” to the deposition date/time or the dep is set by an odd process called a dedimus potestatem (I am not going to explain that moderately complex process here—send a reply if you want that info).
Those are the only paths to set/conduct a dep in IL WC.
If we set our expert’s dep and the other side forgets or isn’t there and is unwilling to proceed by phone, we vote DO THE DEP.
About three months ago, we had a deposition scheduled and OC knew of the dep and then forgot about it. Our attorney was there with the doctor and court reporter. Our doctor was already paid in advance and the court reporter will always bill for attendance. As OC didn’t show up, our attorney then mistakenly “cancelled” the dep and left.
In my view, I strongly recommend IL WC attorneys NOT do that—if you are there for your doctor’s dep--take the deposition without opposing counsel present. You and our client paid for the doctor’s time and attendance. You will be billed for the court reporter’s attendance. No client will want to pay again and you will get into a total storm to then have to go before an Arbitrator and fight over who has to pay for the second setting to allow cross-exam, etc.
Do the deposition as an “ex parte” dep—do the normal preliminaries but also put into evidence the correspondence/emails from and to OC confirming they were aware of the dep and were supposed to attend. Then ask all the questions you need from your expert.
If the other side wants to cross-examine your expert (and they should due to malpractice concerns), it is on them to set the second dep by agreement and pay for the doctor to attend and the court reporter.
If you appear at the dep of the other side’s expert and OC doesn’t attend, if the expert will proceed, it is a judgment call to go forward without your opponent. In that setting, I would typically tell the doctor to contact the attorney and reset at the other side’s expense. I would also confirm all of it in writing to OC and your/our clients
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