Workers' Compensation Committee Update
March 25, 2011
Legislators continue to negotiate various aspects of Governor Cuomo's 2011-12 budget. Specific workers' comp related items include:
- Group Self-Insured Trusts Resolution: Language - substantially similar to that introduced late last legislative session – was proposed to implement many of the recommendations of the Task Force on Group Self-Insurance. The Governor's language proposed to repeal WCL Section 50(30a)(9) relating to the addition of new members to GSITs; permits GSITs to self-insure if certain requirements are met and would subject entities that failed to pay a judgment under WCL section 26 within ninety days of notice of such failure to a “stop work” order. It also proposed to eliminate Workers Comp Board assessments (other than Section 50-5 assessments) on inactive self-insured groups effective January 1, 2011. The Assembly budget resolution modified the Governor's language somewhat by easing the standards by which trusts could continue to self-insure. The Senate rejected the Governor's language in its budget resolution. Staff in both houses continue to negotiate with the Executive and appear to be making progress on language changes acceptable to all parties, in anticipation of having an agreement included in the final budget.
- Delinking Workers' Comp & No Fault From Medicaid Rates: One of the 69 recommendations advanced by the Governor's Medicaid Redesign Team and ultimately incorporated into the Governor's budget was a proposal advanced by hospitals to delink workers' comp and no fault in-patient hospital rates from the Medicaid rates. This proposal was included in both the Senate and Assembly's budget resolutions, and while negotiations on the overall Medicaid budget recommendations continue, this proposal looks to be included as part of a final agreement. WCB staff advise that their interpretation of this language is that it will have no impact on rates and issued just today the in-patient hospital rate schedule for 2011. Their interpretation is that this delinking merely excludes workers' comp and no fault from receiving the benefit of rate reductions included as part of this 2011-12 budget process. Stay tuned!
The chairs for the Labor Committees in each house --Senator Joe Robach and Assemblyman Keith Wright - have their committees underway; expect committee activity to ramp up once a budget is enacted. Over a hundred bills have been introduced which propose changes to the workers' comp law -- some of the “usual suspects” and some new bills which will warrant close monitoring. Of particular interest:
- S.3741 / A.6294, introduced by Senator Maziarz & Assemblyman Wright, which would prohibit the medical treatment guidelines, rules or regulations from being applied by the WCB retroactively to cases prior to the date the MTG became effective.
- S.4176 / A.5923, introduced by Senator Savino & Assemblyman Kavanagh, which requires that when timely payment of benefits is contingent on the recipient's timely response to an inquiry from the insurer, the insurer shall provide a reasonable time period for response and clear notice of the consequences of failing to respond by the deadline. A similar bill applying solely to disability benefits was chaptered last year; this bill broadens to all benefits covered under the WCL.
- S.4243 / A.5361, introduced by Senator Gallivan & Assemblyman Hoyt, requiring the chair of the Workers' Compensation Board to establish a fee schedule for massage therapy in the same manner as PT and OT services.
- S.3236, introduced by Senator Bonacic, requiring that at least one member of the WCB be a chiropractor.
For those looking to make informed practice and policy decisions, getting aggregate data from the WCB continues to be a challenge. The WCB did not issue a 2010 “Joint Data Report”, building from the 2008 and 2009 reports on data issued with the Insurance Department; and it is unclear whether a 2011 report will be issued. This leaves the system with little tangible public data to evaluate aspects of the 2007 reforms.
The Department of Labor, however, has met its statutory obligations in issuing its Annual Safety Net Report of the Commissioner which provides the only public data on PPD cases classified since the 2007 reforms. Some quick takeaways:
- 70% of the total 577 PPD classifications within the timeframe measured were public employees and/or SIF claimants. DOL does not in the narrative that public employees have certain civil service protections that may aid in both classification and return to work.
- Table 11 cross-matches PPD claimants with Social Security Disability data and finds a high correlation between those who have received SSDI at all postinjury (67.7%) and those in current payment status with SSDI (48.3%).
- Just over 50% of all PPD NSL classifications were from two industry sectors: public administration and health care/social assistance.
- Degree of disability ranges as reported in Table 1 were from 5% to 99%; the categories used by DOL do not align with the categories in the statute so it is hard to draw conclusions without further information; with that caveat: 60% of the 577 classified fell within the 41-71% range; 20% fell between 71-80% degree of disability range; and 4% of PPD classifications were greater than 80%. (Don't tell anyone but does that sound like “moderate” to you?)
Earlier this month, the Social Security Administration released its 2010 Annual Statistical Supplement, which includes states' workers' comp data. The supplement data caught the eye of the Wall Street Journal for a different reason: New York is among the easiest of states to qualify for SSDI. Given the more than precarious state of the SSDI Trust Fund (some would say insolvency), the need for better state-level data to conduct better evaluations on the links between SSDI and WC couldn't be more needed.
The workgroup convened to write the Medical Treatment Guideline for Carpal Tunnel expects to complete its work in the next couple of weeks. Incorporate that MTG into the existing framework will be handled through regulation. This also opens the opportunity to propose modifications to the MTG process regulations that may have been well intended, but are in fact having unintended consequences.
The Board continues to convene its Attorney Fee Panel, which met at the request of the Chair starting last November. Ostensibly this group was to address two issues of concern o the Chair; the agenda which was never formalized by the chair morphed into a wish list for special interests. The group meets next on April 1 and although no agenda has yet been sent, some expect claimants' attorneys to present the need for guidance on the payment of attorney fees in variance cases. At the February meeting of the group, claimants' attorneys raised the issue related to the “volume” of work around variance requests and the lack of a process for them to get compensated. BCNYS will oppose any such fee and will continue to monitor closely activities of this ad-hoc Panel. The Board reports, FYI, that the preponderance of variance requests are from chiropractors and physical therapists.
With the issuance of the MTG on Carpal Tunnel, we're interested in hearing from members about Scheduled Loss of Use cases and any trends they may have noticed recently on these. Some members are reporting increased “class action” type SLU activity exacerbating outdated SLU guidelines and positing whether medical treatment advancements call for a revisiting of the schedules and their appropriateness.
The New York Times, in a piece focused on Washington State's Health Technology Assessment Committee, which is tasked with identifying which medical devices and procedures will be authorized for public employees, injured workers, and the state's Medicaid recipients. Some of the procedures not authorized by this Committee reflect some of the findings as well by those who developed New York's MTGs - which doesn't mean those whose practices are impacted will not be making noise.
And while I suspect many of you see cases each day that make you shake your head, this case from Montana takes to a new level how not to “get ready” for work.