Workers' Compensation Committee Update

October 27, 2010

Time Waits for No One or Time Is On My Side

As one administration wraps up and another is measuring the drapes, it's all hands on deck for the Paterson Administration to try to leave the workers' comp system better than they found it. For businesses, it's a time to remain vigilant and vocal, as the full implementation of the 2007 reforms is yet to be realized. The rush to complete tasks before December 31st means less time for thorough review and comment.

The Board's “to do” list gets longer not shorter but all businesses should be aware of the following:

Disability Duration Guidelines: The Board issued a subject number on October 13, 2010 seeking comments from stakeholders. While no due date for comments was given, it is the Administration's stated intention to move forward with implementing “something” by the end of this year. The Business Council had a number of members on this Task Force which helped to inform the recommendations contained in the Guidelines. It should be noted, however, that the Task Force operated under rules of engagement which were not agreed to by the business members. The Task Force was instructed at the outset of the development of the impairment guidelines that it could not use a whole body impairment number nor could the AMA Guides be used. Thus, while the medicine behind the impairment guideline recommendations is not in question, it is unclear how these guidelines can be used by the system.  Anyone contemplating offering comments should intend on getting their comments in no later than November 5, 2010.

Forms! We Have Forms: With an effective date of December 1, 2010 for the Medical Treatment Guidelines, a draft of new forms were released on October 21, 2010.  The Board's stated desire was to get these forms released so TPAs, carriers, self-insured employers and physicians could alter their systems to reflect the new forms in time for the 12/1 date. As forms drive behavior, many will note that the forms are not ideal in a number of areas. The Board's approach was more Start Me Up, indicating a desire to get the forms in circulation and deal with changes after they had 6 months or so of road testing. The Business Council, with the guiding insight of several members, provided substantive comments on the thirteen forms and instructions. Some of our suggested changes were incorporated; others were acknowledged but put into the “parking lot” for consideration for future updates. Ignore these form changes at your peril! While final regulations on the Guidelines are expected to be published in the November 3 State Register, the Board advises that modifications will be minor to avoid having to reopen the comment period. In particular, take note of the new “90 day” box on the medical forms (and the instructions which accompany those forms) reflecting the Board's regulatory change from 45 days to 90 days within which reports need to be filed. The Business Council is very skeptical that medical professionals will take the time to read the instructions and will be looking for feedback from our members on whether this change to 90 days is causing unintended consequences within the system.

Cross-Examination Regulations: While not formally published, those who subscribe to WorkComp Central are aware that the Board intends on publishing regulatory changes to limit the use of cross-examination within certain Board proceedings.  A copy of the draft regulations can be found here; Business Council comments submitted on the draft can be found here. The Board believes these proposed (not yet published for comment) changes will expedite the process and eliminate friction costs – ultimately saving money to the system. The Business Council stated its opposition to advancing these regulations. In addition to being concerned with the Board curtailing due process rights, we also expressed grave concern about the timing of such regulations with the looming effective date of the medical treatment guidelines. Given the Board's less than strong enforcement on form completion by medical professionals, the limitation on due process at this point in time is more than troubling.

Attorney Fee Panel To Convene: In the Board's continuing efforts to lower the “cost” of the system, it has identified an array of issues related to attorney fees on which it is seeking stakeholder input. Among the issues the Board has on its agenda: defense fees (hearings, depositions, agreement drafting); impact of lack of attorney fees in medical only cases; union legal services contracts; claimant payment of attorney disbursements; and attorney fees in the Third Department Appeals. The first meeting of the panel is November 9th. The Business Council will be represented, as will carriers, members of the NYS Bar Association, the claimants' bar, and organized labor. It remains to be seen whether the first meeting will be the last meeting.

Group Self-Insurance Rulemaking:  Today's State Register (October 27, 2010) has proposed rulemaking on qualifications for group self-insureds and the parameters within which they may operate. A 45 day comment period is now underway. We will be reviewing and commenting on the regulations and welcome any thoughts Business Council members have on the content of the regulations.

Yet to be seen, but on the “to do” list:  issuance of final pharmacy network regulations (where they want to address the notification and distance issues) and diagnostic network regulations. A draft process has been developed by the Board, but not yet approved, for development of new Medical Treatment Guidelines.  This new process development is anticipated to be used for the development of a chronic pain MTG; the existing team convened to develop the initial set of guidelines is anticipated to get underway shortly to develop the wrist/carpal tunnel guideline.

In honor of the release of Keith Richard's memoir, I can't help but think about the many different Rolling Stones songs that fit so nicely with this topic. I can't decide to end with Paint It Black or Mother's Little Helper, but either way please feel free to reach out to me with any questions or concerns you have.