State News

On 12/30/22, Governor Hochul vetoed three bills pertaining to workers’ compensation matters and signed one into law. She vetoed a bill redefining temporary total disability (S768/A1118), a bill that would have set the minimum rate of compensation as no lower than 1/5 of the state average weekly wage (S8271/A7178), and a bill that would have changed the legal standard for establishing a claim for mental stress (S6373/A2020). She signed into law a bill that prohibits any workers’ compensation board determination from having a collateral estoppel effect in any other action or proceeding arising out of the same occurrence, except for the determination of an employer-employee relationship (S9149/A10349).

Employers and carriers were concerned about the three vetoed bills, which were passed by the legislature over the summer. Each would have increased workers’ compensation premiums and the cost of doing business in the state.

However, the so-called “TT bill” was of particular concern because it had the potential to effectively eliminate partial disability classifications in New York given its definition of temporary total disability as the inability of an injured worker to fully perform their pre-injury job or modified work offered by the employer. Such injured workers would be allowed to receive the maximum benefit rate, no matter how much residual work capacity their own physician believed them to have. We discussed this concern along with our analysis that this bill would have increased the value of permanent partial disability awards and eliminate the labor market attachment defense in our white paper published over the summer. 

The workers’ compensation defense bar was active in educating the public about the potential cost increases that would result from passage of this bill. Our firm wrote an op-Ed in The Buffalo News and our partner Dan Bowers and Mark Hamberger were interviewed by Buffalo Business First in their article about the bill. Attorney Peter Walsh of the Walsh and Hacker firm in Albany was interviewed in an article about the bill published in the Times Union in June 2022.  

We are pleased to learn that the governor vetoed the TT bill and the other two bills that were passed by the legislature this summer. We believe her vetoes to be a “win“ for businesses in New York. This should serve as a reminder that employers and carriers concerned about the cost of doing business in New York State should be sure to monitor the legislative calendar for pending legislation in 2023 and contact their elected officials to discuss any legislation that they are concerned about.

On 1/18/23, Maila Hazen will present "New York Prior Authorization Request (PAR) Basics". This webinar will discuss the New York Workers’ Compensation Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. Participants will learn the basics of the PAR process and practice tips for handling PARs from health care providers. This webinar is relevant to New York workers’ compensation claims only.

It will be held at 11:00 AM EST on Wednesday, January 18 2023. Please click here to register. 

This webinar is produced in partnership with WorkCompCollege.com and the National Workers' Compensation Defense Network (NWCDN). 

In 2022, the Board has overhauled the process for health providers to request prior authorization for treatment as well as the process for employers, carriers, and administrators to respond to these requests. The Workers’ Compensation Board's project to do this is called "OnBoard" and the Board has now completed its initial rollout of the project, which is designed to transition payers and health care providers from paper-based processes to online processes. Our white paper discusses the Board’s prior authorization request (“PAR”) process. PARs generally apply to requests for medical treatment that fall outside of the Board’s Medical Treatment Guidelines. You can download it here

For any questions about this topic please do not hesitate to contact Maila Hazen or our partner Renee Heitger.

As Responsible Reporting Entities (RREs), carriers and self-insured employers (SIEs) are responsible to report the existence of any Medicare enrolled claimants to CMS, subject to certain reporting thresholds. CMS ostensibly uses this information to avoid making conditional payments, where a carrier or self-insured employer’s coverage is primary to Medicare. The 2007 Medicare, Medicaid and SCHIP Extension Act (MMSEA) also imposed civil monetary penalties of up to $1,000.00 per day, per claimant, for failure to comply.
 
The penalties are in addition to any MSP reimbursement obligations, such as conditional payment reimbursement. Carriers and SIEs should consider the cost of these penalties as potential added claim expense, in addition to conditional payment reimbursement, MAP lien reimbursement, and WCMSA funding.
 
Highlights of the proposed rules include: 

• Penalties can be imposed if an RRE fails to register and report within one year of the date that a settlement, judgement award or other payment obligation was established. The penalty is up to $1,000.00 for each day of non-compliance for each claimant. The maximum penalty for each claimant is $365,000.00 per year.  
• If a report is made, but the RRE subsequently provides contradictory information in response to MSP recovery efforts, the RRE is subject to a penalty based on the number of days that the RRE failed to appropriately report updates to the claimant’s records. The penalty is up to $1,000.00 per day of non-compliance, with a maximum of $365,000.00 per claimant.  
• CMS proposes a 20% error tolerance. If errors exceed the 20% threshold in four of eight consecutive reporting periods, the RRE may be subject to a penalty upon the fourth occurrence. This penalty is tiered, ranging from $250.00 per day, per claimant, for each day of non-compliance to a maximum of $1,000.00 per day. The maximum quarterly penalty is $90,000.00 per claimant.
• There is five year statute of limitations for imposition of a penalty, tolled from the date that CMS identified non-compliance.  
• The proposed rules are prospective, meaning that CMS will impose penalties on a go forward basis following the effective date, rather than retroactively.   

CMS will informally communicate with the RRE before imposing a penalty, using the same communication procedures already in place under the MMSEA User Guides. The RRE may respond with mitigating evidence. If a penalty is imposed, the RRE will receive formal written notice from CMS. A dispute process is proposed, involving hearings before a federal Administrative Law Judge, appeals to the Departmental Appeals Board, and petitions for judicial review.

We strongly recommend reviewing Section 111 reporting procedures with those responsible for supplying information to your reporting agent, as well as reviewing your reporting agent’s procedures, to be sure that everyone is in compliance before February 2023.
 
As industry pioneers in Medicare compliance, we have been preparing MSAs, defending conditional payments and Medicare Advantage Plan liens, and advising on Section 111 reporting for nearly two decades. As our clients prepare for this latest development, we stand ready to train, advise and, if need be, defend MMSEA penalties. Please contact our partner, Nicole Graci, for more information.

As a reminder, the Hamberger & Weiss LLP New York Workers’ Compensation Law Reference Sheet is available online for claims professionals that need a handy reference tool in day-to-day claims handling. The reference sheet has the maximum and minimum compensation rates dating back to 1990, the SLU and LWEC tables, common due dates, and summaries of laws concerning liability, defenses, settlements, and medical treatment issues.

Insurance carriers and employers in New York exhaled a sigh of relief after the Court of Appeals issued its decision in Green v. Dutchess County BOCES on 10/27/22. This decision from New York's highest appellate court reverses an Appellate Division holding which required posthumous payment of remaining capped permanent partial disability benefits in non-schedule loss of use award cases when the claimant dies for reasons unrelated to their work injury. That decision, now reversed, created a new category of New York workers' compensation benefits with potentially huge additional unplanned liabilities for New York workers' compensation payers. When the Appellate Division’s decision in Green was published, Hamberger & Weiss LLP opined that the decision was wrongly decided because it failed to apply long-standing precedent requiring causally related lost time / lost wages as a prerequisite to permanent partial disability awards.

The Court of Appeals held that there is no statutory basis in the plain language of the workers' compensation law or in the legislative histories of statutory amendments over the years supporting Appellate Division's decision. The Court highlighted the fundamental distinction between schedule and non-schedule permanent partial disability awards over 100 years ago in 1921. One hopes this unambiguous reaffirmation by the Court of that fundamental distinction will lay to rest any future attempts to blur the difference between schedule and non-schedule awards for another 100 years.

Please do not hesitate to contact any of our attorneys with questions about this decision.

On 5/26/22, the Appellate Division, Third Department decided Bonet v. New York City Transit Authority. This decision reaffirms several recent decisions from the Court holding that, in repetitive use occupational disease claims, a treating physician must have adequate knowledge of the claimant's work activities before commenting on whether the work activities would be likely to cause the claimed medical condition. In this case, the Court affirmed a Board Panel decision disallowing claimant's repetitive use occupational disease claim, highlighting the fact that physician who commented on causal relationship lacked "… adequate knowledge of any of claimant's specific job duties, except in the most general sense, or the amount of time spent on those duties." The medical reports from claimant's treating physician stated only that claimant "injured himself due to repetitive motions and generically identified the critical demands of claimant's employment as bending, pushing, pulling, lifting, carrying, reaching above shoulder level, sitting, standing, and walking."

This decision serves as a reminder that repetitive use occupational disease claims are not automatically compensable merely because a treating physician asserts causal relationship for the claimed injury site. The treating physician must have adequate knowledge of the nature of the claimant's work activities, and claimants must prove that their case meets the specific legal requirements for a repetitive use occupational disease claim. These legal requirements are more exacting than requirements for a standard accidental injury claim. Consultation with defense counsel on whether evidence produced by a claimant satisfies the legal requirements for a repetitive use occupational disease claim is useful in many cases because a claimant’s initial proof often fails to check one or more of the necessary boxes required to establish a repetitive use occupational disease case.

As of August 2022, the Hamberger & Weiss LLP conditional payments team has saved our clients over $1,000,000. With 4 months still left in the year, the conditional payments team is on track for a record year.

Hamberger & Weiss, LLP provides Medicare Compliance services, including MSAs with or without CMS pre-settlement approval, conditional payment lien research and recovery at CMS and Treasury levels, MAP lien research and recovery and NGHP Mandatory Insurance Reporting guidance. Contact our partner Nicole Graci at ngraci@hwcomp.com for your conditional payment, MAP and Section 111 reporting needs.

We were advised by the Division earlier this month that the Zoom meeting IDs used to access benefit review conferences and other remote meetings were being changed starting in January. Instead of the usual 10-digit meeting ID assigned to each Benefit Review Officer, which we have been using since remote BRCs became the norm during COVID, the new meeting IDs are 11-digit numbers beginning with either 160 or 161. 

Some of us were exposed to the new system a bit early on December 19, when we called in to attend our BRCs using the usual Zoom call-in number. Upon entering the new 160 or 161 meeting ID to access our BRCs we received a recorded message to the effect that the meeting ID was not authorized. We were eventually able to access and participate via the internet by accessing the Division’s Zoom site (https://tdi-dwc-hearings.zoom.us/) and entering the 11-digit meeting ID listed in the BRC notification. 

We were later advised that BRCs may still be accessed by telephone but the call-in number has also been changed. The new dial-in number is 551-285-1373.

Copyright 2023, Stone Loughlin & Swanson, LLP 

On December 28, 2022, the Third Court of Appeals in Austin issued its latest decision in the seemingly never-ending litigation over the stop-loss exception to the Division’s 1997 Inpatient Hospital Fee Guideline.    

The court of appeals affirmed the trial court’s judgment which affirmed the State Office of Administrative Hearings (SOAH) Decision and Order holding that the “stop-loss” exception to the Division’s 1997 Inpatient Hospital Fee Guideline did not apply to 528 inpatient hospital admissions.  These admissions took place at three hospitals, two in Houston and one in Dallas, named Vista Medical Center Hospital, Specialty Hospital of America, Southeast Houston, and Vista Hospital of Dallas (collectively, Vista).  Most of these admissions took place between 2001 and 2007.  A conservative estimate of the average amount sought by Vista for each admission is fifty thousand dollars for a combined total of over twenty-six million dollars at issue in the court of appeals decision plus thirty million dollars in interest due to the age of the disputes and the current interest rate on delayed payment of medical benefits.  

The court of appeals made short work of Vista’s arguments challenging SOAH’s decision.  To sum up Vista’s arguments, the method SOAH used to determine whether an admission involved unusually costly and extensive services wasn’t fair because relatively few of the admissions qualified for stop-loss reimbursement.  However, the court of appeals held that SOAH’s decision was not arbitrary and capricious and is reasonably supported by substantial evidence.  Vista has the right to file a motion for rehearing with the court of appeals and it can also petition the Texas Supreme Court to review the court of appeals decision. However, the courts surely have stop-loss fatigue by this point and the odds of Vista getting the decision reversed are about the same as a SIBs applicant finding a job.

The History of Stop-Loss

As we hopefully near the end of the stop-loss saga, now is a good time to look back on how we got here.  The stop-loss litigation began shortly after the Texas Workers’ Compensation Commission (now the Division of Workers’ Compensation) adopted its 1997 Inpatient Hospital Fee Guideline.  The guideline had a giant loophole in it.  It seemed to say that if the hospital’s billed charges for an admission exceeded $40,000, the hospital was entitled to 75% of that amount. This gave hospitals a windfall because of their grossly inflated billed charges.  The stop-loss exception led many enterprising hospitals to make sure that their billed charges for an admission exceeded $40,000.  This was most often done with large mark-ups on spinal hardware and this was at the point in time when spinal fusions were all the rage and seemingly everyone who complained of back pain got a fusion whether they needed it or not.  Vista actually seems to have been founded on the stop-loss exception.  It focused almost exclusively on spinal surgeries for injured workers covered by the stop-loss exception using questionable doctors who would later have their medical licenses revoked. See, e.g., Eric “The Red” Scheffey, M.D.

SLS was heavily involved in the stop-loss litigation from the beginning.  James Loughlin of the Firm, along with Ron Luke, PhD, and Nick Huestis met with TWCC staff early on to educate them on how the stop-loss provision should be interpreted.  On behalf of various clients, SLS sent a letter to TWCC Executive Director Bob Shipe on December 6, 2004 asking the Commission to take action to address the stop-loss problem by issuing an advisory that would clarify the Commission’s interpretation of its rule.  Mr. Shipe responded by letter a short time later stating that the Division was suspending the issuance of decisions in stop-loss cases while staff reviewed the application and interpretation of the stop-loss provision.  The Commission then issued its Staff Report on February 17, 2005 clarifying that the stop-loss exception is a two-part test meaning that in order for the stop-loss exception to apply, a hospital must demonstrate not only that its audited charges exceed $40,000 but also that the services it provided were unusually extensive and costly. Following the Staff Report, the Commission began deciding stop-loss cases by determining whether the services provided during the admission were unusually extensive and costly. 

On January 12, 2007, an en banc panel of nine SOAH ALJs rejected the Staff Report’s two-pronged interpretation in a 7-2 decision and the trial court upheld SOAH’s decision.  However, in a decision issued on November 13, 2008, the Third Court of Appeals reversed the trial court and held that the two-pronged interpretation of the stop-loss provision is correct.  That decision became final when the Texas Supreme Court denied the hospitals’ motion for rehearing of their petition for review on December 3, 2010.  SOAH was now required to apply the stop-loss exception as a two-pronged test.  

SOAH subsequently consolidated all of the Vista cases for hearing and decision. A two-day hearing was held before a five-judge panel on February 23 and 24, 2016 to take evidence in the cases.  The carriers offered testimony from Dr. Luke.  Following post-hearing briefing, SOAH ultimately issued its consolidated decision on June 24, 2019 finding that only 14 of the 542 disputed admissions qualified for reimbursement under the stop-loss exception.  Vista filed suit for judicial review of SOAH’s decision.  The trial court issued its decision on May 13, 2021 affirming SOAH’s decision which Vista then appealed to the Third Court of Appeals.

In the Third Court of Appeals latest Vista decision, it cites at length from Dr. Luke’s testimony at SOAH.  The court notes that the ALJs did not explicitly adopt one of the proposed methodologies but adopted a two-part analysis that shares certain features with Dr. Luke’s analysis.  In response to Vista’s arguments that SOAH should have used one of its proposed formulaic methods, the court reiterated its earlier holding that what constitutes “unusually costly and unusually extensive” services in any particular fee dispute is “a fact-intensive inquiry best left to the Division’s determination on a case-by-case basis.” 

What Next?

The carriers have been on a winning streak since the Third Court of Appeals’ first decision in 2008 with Vista appealing every adverse decision since then.  If history is any guide, Vista will appeal again by petitioning the Texas Supreme Court for review although it must know that doing so is likely to be in vain and will only delay the inevitable.  If and when the Third Court of Appeals’ decision becomes final, the 528 individual cases it disposed of will become final.  There remain a currently unknown number of Vista stop-loss cases pending at the Division, SOAH, or the trial court which must still be resolved. 

Copyright 2023, Stone Loughlin & Swanson, LLP