Power point re 2011 amendments to illinois workers' compensation act


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  • First time Agreed Bill Process abandoned since 1975 when major WCA was passed. Following hearings by the House and Senate, numerous bills were filed on behalf of various interests groups. One bill passed the House which abolished the WCA. Entire system would have been thrown into the Circuit Court. This would have taken us back in time over 100 years to a negligence system with common law defenses of C/N, A/R, with all of the delays & uncertainties of recovery. Cooler heads prevailed and HB1698 passed the Senate after being rejected on one occasion. Effective dates for each provision & whether each provision is Procedural vs Substantive
  • This was a likely response to the Menard’s Prison situation where hundreds of guards sued for WC for CTS, deQuarvain’s disease & cubital tunnel syndrome being paid following a couple of trials of these cases. Some have recited that the State paid over $10,000,000 for these claims. The goal is to have the State’s cases defended in a more thorough manner as any business would defend such cases. Instead of self administering the Legislature thought the State needs to go outside to hire an insurance carrier or a TPA to help them professionalize the entire claims handling process and do all the fundamental things we take for granted to raise a proper defense to questionable cases such as having IME’s performed, hiring an ergonomist to study the work situation, having surveillance performed, taking statements from witnesses, ordering all the records, etc.
  • This provision should be read in conjunction with the provision which abolished the current offices of the members of the Advisory Board effective 6/8/11 and the Governor is to appoint new members of the Advisory Board within 30 days. Obviously, all the appointees will be political. The Governor is required to consult with the Advisory Board regarding his appointment of the initial set of Arbitrator appointments and the appointment of Commissioners (Section 13.1).
  • This is important since the the Fraud Unit can now do a more complete investigation of the cases and don’t have to depend on the attorneys providing copies of records to them. Issues were previously raised regarding the completeness and authenticity of records damaging the credibility if the investigations and conclusions they drew. This should help shore up the credibility of fraud investigations and get the Fraud Unit the vital medical information they need to evaluate the cases themselves without having the prevail upon the parties to supply this information to them.
  • Specific accident cases are easy. We understand the standard of proof. But what about repetitive trauma cases. Implicit in those cases is a finding of causation by virtue of finding when the “injury manifested itself”. Manifestation is said to occur when it is apparent to a reasonable person that the injury is causally related to the repetitive work activity. Before, many petitioner's attorneys would prove up such cases on the issue of causation with a medical opinion asking whether the work activity could or might have been a causative factor? But now, since the Legislature requires “accident” to be proven by a preponderance of the evidence, we intend to argue that “could or might be a causative factor” will be insufficient to prove causation by a preponderance of the evidence and that will be necessary in order to prove “accident” based on repetitive trauma due to the “manifestation” requirement.
  • This is an obvious response to some of the problems we’ve been having downstate with a couple of Arbitrators sending emails including sexual innuendos, trying to subvert the public hearing requirements, providing legal advice to lawyers who appear before them on how to handle cases before other Arbitrators, and the entire Menard’s prison debacle.
  • This is largely a response to a situation which had developed over the past few years giving the rising popularity of using employee leasing companies and PEO’s to supply labor to the business community. Unfortunately, some charlatans entered the market charging fees to companies on the representation that all insurance was being provided to them and their employees when in fact none had been purchased. This left some unfortunately claimants chasing employers with no assets looking for benefits and then having the ELC out of business, bankrupt or otherwise judgment proof. To try to cure this problem ELC’s are now required to identify their clients as additional named insureds under their policy, provide the information schedule attached to the policy as well as the Certificate of Insurance.
  • Dir. Of Labor to select 2 labor unions to participate in this experimental program. Rumor: Operating Engineers and Labor (previously was ironworkers). ADR to be provided for in CBA of 2 years duration. In addition to the ADR system itself which replaces the dispute resolution system provided for by the WCA with the IWCC, the CBA may provide for the following:
  • Now with PPP we have #1 for all employers. Now we do IME’s with anyone we want so this may actually limit choices. Virtually all of our clients have RTW programs. Panel of rehab vendors seems unnecessary since there are so many well qualified ones. Most unions and construction employers already have joint safety committees. OK to abandon the IWCC for private Arbitrators. Not sure where they will come from—present Mediation companies such as ADR? CBA allowing for ADR must be filed with IWCC & approved by Chairman within 21 days or advise parties of deficiencies Construction employer required to notify WC ins. carrier of such an agreement. Decisions of Arb are to be “final and binding upon the parties” and include Findings of Fact & Rulings of Law. Issue: Do the parties have the right to file for a Review to the IWCC (probably not) or Appeal the decision of a private Arbitrator? Act provides: Any agreement that diminishes or increases a construction employers entitlements under the Act or an employee’s entitlement to benefits under thee Act is Null & Void. Does denial of right to Review or Appeal constitute a diminution of entitlements make such an agreement for ADR null and void? Rumor that only insurance co. interested in writing this ADR business specifically is B rated and not well received in the industry (SeaBright or Third Coast).
  • Motivation was that investigations of uninsured employers were taking too long and the IWCC was doing a generally poor job in following through on these matters. Also the potential for fines were prohibitively high. Now, employers doing business without insurance can be easily cited, fined and the situation of them being without WC insurance remedied. It appears to be a more workable solution than what we had before.
  • If no PPP then employee has the same two choices of medical plus the chain of referrals as he has now. If employer has a PPP he must inform the employee of the PPP in writing on a form promulgated by the IWCC.
  • If employee reports an accident and provides written notice to decline the PPP, that declination constitutes one of the employee’s two choices of medical treatment. If the employee seeks non emergency care before reporting an accident, that choice of medical provider constitutes one choice of medical providers; however, he still can treat within the PPP.
  • Issue: How to get the 5 year clock started for older claimants entitled to wage loss benefits? Given that once loss of earnings is ascertainable the benefits should be voluntarily paid, how do you get to hearing and a final award if a claimant is not represented and has not filed an Application with the IWCC? This reform has the potential to reduce wage loss exposure by around 33%. Tougher negotiations anticipated and more wage loss cases tried since petitioner's attorney’s will not be willing to discount PCV’s by 25 – 33% as they did with lifetime projections. Problem of serial wage loss awards and credit for same not addressed by this reform.
  • This was in part a response to the Menards Prison crisis of hundreds of CTS cases as well as clamor of industry regarding this issue. Issue: Does reduction to 190 weeks apply to all hand cases? What is meant by “cause shown by clear & convincing evidence? Does this mean only that if satisfied you can get up to 30% or does this mean that you have to prove causation by “clear and convincing evidence”?
  • No proposed rules pending by the Department of Insurance regarding the requirements for approving a PPP and how employers may implement the PPP’s. Statutory requirements for a PPP 1 – 5.
  • Focus will be on the “economic valuation” used to make sure that employees have proper access to treatment that they need and to make sure that medical providers are treated fairly and not economically abused. This is why the administrator of the PPP must file its policies & procedures related to “economic valuation”. The Director of Insurance can deny approval of a PPP if the economic valuation used reduces, delays or deny treatment or restricts access to treatment. Injured employee of employer with a PPP is ONLY PERMITTTED TO SELECT A PHYSICIAN FROM WITHIN THE PPP NETWORK.
  • How the treatment works: When employee reports an injury &/or files an App., the employer MUST NOTIFY the employee of the right to treat with physicians in the PPP. First Aid and Emergency Treatment is paid and does not count as a choice of medical provider Employee is entitled to treat with PPP choice #1 and the chain of referral and PPP choice #2 and the chair of referral 3. Employee is entitled to treat with a specialist not in the PPP if the PPD does not have a MD who can provide the treatment & employee complies with preauthorization requirements of PPP. Employer may not unreasonably deny such care. 4. If IWCC finds PPP Choice #2 is improper or inadequate, employee can go outside of PPP using a Sect. 8(a) Petition. Commission must issue decision within 5 days of hearing.
  • The amendment first outlines how a physician is to render an opinion regarding impairment. This requires 5 criteria to be evaluated & a three step process to make the evaluation. Then it defines how the IWCC is to determine permanency and outlines the 5 criteria the Commission must use to base a PPD determination.
  • The fifth item of what the IWCC must do to determine permanency includes the testimony of the claimant and the “magic question”, what do you notice about yourself at the present time? No single enumerated factor shall be the sole determinant of disability.
  • The old days are gone with all of the case law establishing the value of injuries. We’ve been doing it that way now for about 20 years and all of that case precedent will be irrelevant to the new way of determining permanency.
  • Fee Schedule was part of the 2005 - 2006 amendments. Charges were set at 90% of the 80 th percentile of charges in each category of treatment adjusted annually by Consumer Price Index U. After 1/1/12 Regions to be reduced: 1.Only Four regions for non hospital care; 2. 14 regions for hospital care. Whether employers will really see a 30% reduction in the medical expenditures is questionable since many have been receiving more severe discounts already with their PPO’s.
  • Prior practice: A finding by IWCC that treatment was excessive or unreasonable and bill not awarded to claimant did not forgive claimant of his contractual obligation to pay for the services if the doctor sued him. Now, despite claimant’s contract for medical services, if IWCC finds them to be excessive or unnecessary, the medical provider is prohibited from seeking recovery from the claimant. Probably will need to provide notice of a hearing to the medical provider to avoid violating his right to due process. Issue: What if claimant pays the MD for the service later found to be unnecessary or excessive. Can claimant go to him and ask for his money back?
  • Simply makes sense. TPD is a new concept as of 2005 amendments. Before it was often paid as “maintenance” but now the Act gives us the exact formula to be used to determine the amount due. Before adjusters were subtracting part time earnings from the TTD rate and paying the balance as maintenance and all types of variations on that formula to make a claimant whole, or simply refusing to pay anything since TPD was not provided or under the Act.
  • UR first introduced to Illinois with 2005 amendments. Since the UR had no teeth they were a big flop. When they were used the IWCC often did not give them deference, particularly if there was a treating opinion to the contrary. Now the UR uses nationally recognized “treatment guidelines” and “evidence based medicine”. IMPORTANT: necessary first aid and emergency treatment is excluded from UR.
  • Medical providers are now required to submit to a UR when the employer provides them with written notice that the UR process is being invoked. The medical providers are now required to make reasonable efforts to provide timely and complete reports of clinical information to support a request for treatment. If a medical provider does not make reasonable efforts to do so the charges for treatment MAY NOT BE COMPENSABLE OR COLLECTIBLE. Now, if an employer denies treatment based on the argument that the treatment is excessive or unnecessary it MUST BE DONE USING ONLY A UR (not an IME). OK to use an IME in conjunction with a UR, if for example, causation is questioned, but now UR must be the basis of denial of unnecessary treatment.
  • A rebuttable presumption is NOT established with the UR but it SHIFTS THE BURDEN OF PROOF TO THE EMPLOYEE to show a variance from the standard used by the UR MD is reasonably erquired to cure or relieve the effects of the injury.
  • The amendment provides that an admissible UR shall be considered by the IWCC along with all other evidence (obviously the feeling was that before the IWCC did not pay adequate respect to the significance of a UR).
  • Talk about the Swiatek case. Cart accident at construction site, positive drug test hours later, failed testimony of a toxicologist that petitioner was intoxicated at time of accident but could not determine at what level or say that the intoxication was the sole cause of his injury.
  • An attempt to professionalize the Commission and emphasize training re Fraud investigation, use of UR’s and use of AMA Guidelines for determining permanency.
  • Effective immediately, Governor Quinn named Mitchell W. Abbett, Richard Aleksy, Aaron Anderson, Michael Carrigan, John Carpenter, Mark Denzler, Phillip Gruber, David Halffield, William Lowry, Mark Prince, Sean T. Stott and David Vite to serve as members of the Workers’ Compensation Advisory Board.
  • Training to include: professional & ethical standards; detecting fraud; standards for evidence based treatment & evaluation of PPD, i.e., UR & AMA Guidelines
  • A lawsuit was filed by five Arbitrators challenging the statutory termination apparently claiming a vested right to their earlier civil service appointments and also claiming that they were defamed by the Governor.
  • This provision applies to all existing cases.
  • Less than $300 Class A Misdemeanor; more than $300 but less than $10,000 Class 3 Felony; more than $10,000 but less than $100,000 Class 2 Felony; more than $100,000 Class 1 felony.
  • NCCI has recommended a reduction of the voluntary advisory insurance rate by 8.8% effective 9/1/11 with anticipated savings of $264,000,000 from these legislative changes. 7.4% of the savings come from the Medical Fee Schedule; .8% from wage loss cases; .6% from CTS changes. This does not appear to factor in the PPP, UR and AMA Guidelines provisions.
  • Average weekly wage Causation standard Overrule Interstate Scaffolding AMA Guidelines as only standard for permanency Overule Hydraulics and permit some contact with treating physicians Ask audience what changes they want to be made.
  • Power point re 2011 amendments to illinois workers' compensation act

    1. 1. H.B. 1698 The 2011 Amendments to the Illinois Workers' Compensation Act Signed into Law June 28, 2011
    2. 2. A VENDOR FOR WORKER’S COMPENSATION PROGRAM <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>The Director of the Department of Central Management Services can purchase Workers’ Compensation Insurance and/or retain a TPA to administer the Worker’s Compensation program for the State of Illinois. </li></ul>
    3. 3. CREATION OF STATE WORKERS’ COMPENSATION ADVISORY BOARD <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>Advisory Board created to review, assess and provide recommendations to improve the State’s Workers’ Compensation program. </li></ul><ul><li>Membership on Board is political. Chairperson is appointed by Governor. Other members appointed by the Speaker of The House of Representatives, The Minority Leader of The House of Representatives, The President of the Senate, and The Minority Leader of the Senate. </li></ul>
    4. 4. FRAUD UNIT ALLOWED TO ISSUE SUBPOENAS FOR MEDICAL RECORDS <ul><li>EFFECTIVE JUNE 28, 2011- PROCEDURAL CHANGE </li></ul><ul><li>Fraud Unit of Illinois Workers’ Compensation Commission authorized to subpoena medical records as part of its investigation and medical providers required to release records which are subpoenaed. </li></ul>
    5. 5. BURDEN OF PROOF <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>An employee bears the burden to show by the preponderance of the evidence that the accidental injury or injuries arose out and in the course of the employment. </li></ul><ul><li>Restatement of existing law, or, change to standard of proof for repetitive trauma cases? </li></ul>
    6. 6. STANDARDS OF CONDUCT FOR ABITRATORS AND COMMISSIONERS <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>Arbitrators and Commissioners to treat parties fairly and without bias or prejudice. </li></ul><ul><li>Required to follow Code of Judicial and Professional Conduct. </li></ul><ul><li>Rulings and decisions to be based solely on evidence in the record. </li></ul><ul><li>Pretrial Conferences are allowed. </li></ul>
    7. 7. EMPLOYEE LEASING COMPANIES REQUIRED TO DISCLOSE INFORMATION <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>Employee leasing companies required to disclose to the Illinois Workers’ Compensation Commission: </li></ul><ul><ul><li>1. Identity of any client company listed as an additional named insured; </li></ul></ul><ul><ul><li>2. An information schedule attached to master policy that identifies any client company name, FEIN, and job location; and </li></ul></ul><ul><ul><li>3. Any certificate of insurance coverage document issued to a client company. </li></ul></ul>
    8. 8. ALTERNATIVE DISPUTE RESOLUTION SYSTEM CREATED <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>Nothing in this section to diminish or increase rights or benefits to which the parties are entitled under the Act. </li></ul><ul><li>This is an invitation to several Illinois Construction Industry Labor Unions to join construction employers in designing an experimental program to manage and adjudicate work related injuries. </li></ul><ul><li>Illinois Secretary of Labor to identify two collective bargaining units to submit proposals. </li></ul><ul><li>These experimental programs to utilize administrative apparatus of the Illinois Workers’ Compensation Commission but may streamline this system with the following: </li></ul>
    9. 9. ALTERNATIVE DISPUTE RESOLUTION SYSTEM CREATED (cont’d) <ul><ul><ul><li>1. An exclusive panel of medical treatment providers, </li></ul></ul></ul><ul><ul><ul><li>2. An exclusive panel of (impartial) doctors to perform Independent medical evaluations, </li></ul></ul></ul><ul><ul><ul><li>3. An exclusive return to work program with modified duty, </li></ul></ul></ul><ul><ul><ul><li>An exclusive panel of rehabilitation service providers, or </li></ul></ul></ul><ul><ul><ul><li>Joint safety committees and safety procedures. </li></ul></ul></ul><ul><li>The labor management plan may abandon the Illinois Workers’ Compensation Commission entirely and substitute a private alternative dispute resolution system that is binding on the parties. </li></ul><ul><li>Private ADR system would use private arbitrators hired by the parties instead of public employee arbitrators used by the current public system. </li></ul><ul><li>ADR Plan to be adopted by CBA and have a duration of no less than two (2) years. </li></ul>
    10. 10. CITATIONS OF EMPLOYERS FOR NON-COMPLIANCE <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Investigators with the Illinois Workers’ Compensation Commission Insurance Compliance Division may issue citations for $500.00 to $2,500.00 to “ any employer that is not in compliance with its obligations to have workers’ compensation insurance… ” </li></ul><ul><li>After receiving a citation, an employer has 10 days to pay the fine to the Commission and provide proof it secured proper workers’ compensation insurance. </li></ul>
    11. 11. MEDICAL CHOICES <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>This amendment provides that the employer is entitled to provide written notice to employees of the employer’s selection of an approved medical provider program pursuant to Section 8.1a of the Act. To do so, the employer must provide written notice of the program to employees on a form supplied by the Illinois Workers’ Compensation Commission. As of the writing of this summary, the forms do not yet exist. </li></ul><ul><li>If Employer does not have an approved provider plan, the employee’s rights of treatment do not change from the existing statute. </li></ul>
    12. 12. MEDICAL CHOICES (cont’d) <ul><li>If the employee does not report an accident and seeks non-emergency treatment outside of the preferred provider plan, the employee is not entitled to seek yet another medical provider because he exercised his choice by seeking non-emergency care, his other choice being waived by his implicit rejection of the employer’s PPP. However, the claimant could still treat with the PPP if he did not provide a written rejection of the PPP </li></ul><ul><li>If the employee reports an accident and provides a written declination of treatment within the Preferred Provider Network, such declination constitutes one of the employee’s two choices of medical providers. </li></ul>
    13. 13. WAGE LOSS CLAIMS <ul><li>EFFECTIVE SEPTEMBER 1, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>An award for wage differential effective only until employee reaches the age of 67 or 5 years from the date the award becomes final, whichever is later. </li></ul><ul><li>Concern regarding potential abuse by claimants who will delay when “t he award becomes final. ” </li></ul>
    14. 14. SPECIFIC LOSS CLAIM FOR CARPAL TUNNEL SYNDROME <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Section 8(e) Hand - “190 weeks if the accidental injury occurs on or after the effective date of the amendatory Act of the 94 th General Assembly but before February 1, 2006. 205 weeks if the accidental injury occurs on or after February 1, 2006. ” </li></ul><ul><li>What was added: </li></ul><ul><ul><li>190 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 97th General Assembly and if the accidental injury involves carpal tunnel syndrome due to repetitive or cumulative trauma, in which case the permanent partial disability shall not exceed 15% loss of use of the hand, except for cause shown by clear and convincing evidence and in which case the award shall not exceed 30% loss of use of the hand. </li></ul></ul>
    15. 15. SPECIFIC LOSS CLAIM FOR CARPAL TUNNEL SYNDROME (cont’d) <ul><li>Whether this provision reduces the number of weeks to be used in permanency calculations for all hand injuries or whether the reduction to 190 weeks applies only to specific loss claims for carpal tunnel syndrome based on repetitive trauma? </li></ul><ul><li>Carpal tunnel syndrome caused by repetitive trauma limited to 15% loss of use of a hand. </li></ul><ul><li>In extreme cases, where cause is shown by clear and convincing evidence, PPD awards for carpal tunnel syndrome due to repetitive trauma shall not exceed 30% loss of use of a hand. </li></ul><ul><li>What is meant by: “ except for cause shown by clear and convincing evidence ” ? </li></ul><ul><li>Does this require that causation be proven by clear and convincing evidence or only that clear and convincing evidence is needed to support an award of more than 15% loss of use of a hand? </li></ul>
    16. 16. PREFERRED PROVIDER PROGRAMS <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>PPP must be approved by the Illinois Department of Insurance and comply with applicable portions of the Illinois Insurance Code. </li></ul><ul><ul><ul><li>Employer = “ insured ” </li></ul></ul></ul><ul><ul><ul><li>Employee = “ beneficiary ” </li></ul></ul></ul><ul><ul><ul><li>The PPP must comply with the following provisions to be approved: </li></ul></ul></ul><ul><li>1. Include an “ adequate ” number of BOTH occupational and non-occupational medical providers </li></ul><ul><li>2. Include an “ adequate ” number and type of physicians (or other providers) to treat common injuries experienced by injured workers in the geographic area where the employees reside (not simply where the workplace is located). It is entirely unclear how this will work for companies that frequently employ union members who travel across the state or even from out-of-state. </li></ul>
    17. 17. PREFERRED PROVIDER PROGRAMS (cont’d) <ul><li>It is unclear whether “ reside ” refers to the employee’s permanent residence or, if he / she is traveling, to his or her motel or temporary residence. </li></ul><ul><li>3. Medical treatment for injuries shall be “ readily available ” and “ readily accessible, ” as reasonable, to ALL employees </li></ul><ul><li>4. Physician compensation SHALL NOT be structured in a manner that could be said to reduce, delay or deny medical treatment or restrict access to such treatment. In other words, compensation cannot be so low that the employees cannot get access to the physicians. </li></ul><ul><li>5. The PPO must establish terms/conditions that must be met for a provider to be able to become a part of the PPO and such terms/conditions cannot discriminate unreasonably. </li></ul>
    18. 18. PREFERRED PROVIDER PROGRAMS (cont’d) <ul><li>The price of services as a term/condition does not constitute discrimination. However, the employer must file with the Department of Insurance a written description of all economic valuations that are utilized as terms/conditions and the Director of Insurance may deny approval of a PPP that uses any such term/condition in a manner felt to reduce, delay, or deny medical treatment. The employer must provide a copy of the network filing to all participating providers and this shall be a matter of public record. </li></ul><ul><li>An injured employee of an employer that has established such a PPP is only permitted to select a physician from those within the network. Assuming the employee does so, the employer shall be liable for: </li></ul><ul><ul><li>1. All first aid and emergency treatment, </li></ul></ul><ul><ul><li>2. All medical, surgical and hospital services within the network from employees first choice of network provider or “ within the chain of referral ” from the initial network provider </li></ul></ul>
    19. 19. PREFERRED PROVIDER PROGRAMS (cont’d) <ul><ul><li>3. All medical, surgical and hospital services arising from employees second choice and within the “ chain of referral ” from that choice. </li></ul></ul><ul><ul><li>An employer is NOT liable for any medical services either found not to be compensable by the IWCC or for any services provided by a non-authorized provider when proper notice is given the employee. </li></ul></ul><ul><li>When an employee reports an injury and/or files an Application the employer must notify the employee of his/her right to obtain medical treatment from a physician within the PPO network, and provide instructions to access the list of network providers. </li></ul><ul><li>An exception allows an employee to obtain treatment from a specialist who is NOT a member of the PPO on a “case-by-case ” basis if the PPO does not contain a physician who can provide the treatment in question (for example, a cardiologist, a dermatologist, a pulmonologist) and the employee complies with any pre-authorization requirements of the PPO. </li></ul>
    20. 20. PREFERRED PROVIDER PROGRAMS (cont’d) <ul><li>An employer may NOT unreasonably deny such care. </li></ul><ul><li>If the Illinois Workers' Compensation Commission finds that medical care rendered by employee’s second choice of provider is improper or inadequate, the employee may then choose a provider OUTSIDE the PPO at the employer’s expense. This can be determined by way of a Section 8(a) Petition and a Decision must be filed within five (5) business days of any such hearing (expedited process). </li></ul>
    21. 21. EVALUATING PERMANENCY <ul><li>EFFECTIVE SEPTEMBER 1, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using following criteria: </li></ul><ul><ul><li>A. Level of Impairment: </li></ul></ul><ul><ul><ul><li>Physician licensed to practice medicine in all its branches preparing a permanent partial disability impairment report shall report written level of impairment and shall include evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: </li></ul></ul></ul><ul><ul><ul><li>1. Loss of range of motion; </li></ul></ul></ul><ul><ul><ul><li>2. Loss of strength; </li></ul></ul></ul><ul><ul><ul><li>3. Measured atrophy of tissue mass consistent with the injury; </li></ul></ul></ul><ul><ul><ul><li>4. Any other measurements that establish the nature and extent of the injury. </li></ul></ul></ul>
    22. 22. EVALUATING PERMANENCY (cont’d) <ul><ul><ul><li>5. The most current edition of the American Medical Association's &quot;Guides to the Evaluation of Permanent Impairment&quot; shall be used by the physician in determining the level of impairment. Currently the 6 th Edition, 2008 is the most current edition. In AMA Guides (6th edition 2008), the three–step process for evaluating impairment is contained in section 2.7. This section is required reading, as it contains many important requirements for the impairment rater. See attachment Section 2.7. </li></ul></ul></ul><ul><ul><ul><li>Three step process to evaluate impairment: </li></ul></ul></ul><ul><li> Step 1 is the clinical evaluation, which requires a review of medical records and documenting inconsistencies. The examinee should be encouraged to give full effort in the physical examination, and the physician should review the diagnostic studies. </li></ul>
    23. 23. EVALUATING PERMANENCY (cont’d) <ul><ul><ul><ul><ul><li>Step 2 is analysis of findings, including diagnoses, MMI status, current abilities for activities of daily living (ADLs), and flagging of missing data. </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Step 3 is a specific discussion of how the impairment rating was calculated, and the discussion should cite the pages and tables in the AMA Guides that are used and how they are used. </li></ul></ul></ul></ul></ul><ul><li>B. Permanent Partial Disability: </li></ul><ul><ul><li>In determining PPD, the Commission shall base its determination on the following factors: </li></ul></ul><ul><ul><ul><li>1. The reported level of impairment pursuant to subsection (A) </li></ul></ul></ul><ul><ul><ul><li>2. The occupation of the injured employee; </li></ul></ul></ul><ul><ul><ul><li>3. The age of the employee at the time of the injury; </li></ul></ul></ul><ul><ul><ul><li>4. The employee's future earning capacity; and </li></ul></ul></ul><ul><ul><ul><li>5. Evidence of disability corroborated by the treating medical records. </li></ul></ul></ul>
    24. 24. EVALUATING PERMANENCY (cont’d) <ul><li>C. No single enumerated factor shall be the sole determinant of disability. </li></ul><ul><li>D. Relevance and weight of factors must be explained in writing. </li></ul><ul><li>In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. </li></ul>
    25. 25. FEE SCHEDULE <ul><li>EFFECTIVE SEPTEMBER 1, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Applies to treatment rendered after September 1, 2011. </li></ul><ul><li>Providers of out-of-state treatment reimbursed at lesser of that state’s Fee Schedule or the fee schedule amount for the region where the employee resides. </li></ul><ul><li>If no Fee Schedule exists in that state, pay lesser of actual charge or Fee Schedule amount for the region where the employee resides. </li></ul><ul><li>For treatment not covered by Fee Schedule, pay 53.2% of the actual charge (compare: 76% for services before September 1, 2011). </li></ul><ul><li>For treatment on or after September 1, 2011, payment to be 70% of amount in the Fee Schedule. Annual adjustment to Fee Schedule based on Consumer Price Index-U. </li></ul>
    26. 26. FEE SCHEDULE (cont’d) <ul><li>Non-implantable devices or supplies within the defined codes to be reimbursed at 65% of the actual charge. </li></ul><ul><li>Implants to be reimbursed at 25% over invoice plus shipping. </li></ul><ul><li>Physician dispensed medications to be reimbursed according to Fee Schedule and shall not exceed the average wholesale price plus dispensing fee of $4.18. </li></ul><ul><li>Payment done within 30 days from receipt of bill and all of the necessary data elements needed to adjudicate the bill to make payment. 1% monthly interest fee charged. </li></ul><ul><li>If payment refused, employer is to provide written notice within 30 days of receipt of bill explaining basis for denial or additional data elements required to adjudicate the bill. </li></ul><ul><li>Electronic submission of bills allowed on or after June 30, 2012 . </li></ul><ul><li>Director of Insurance to adopt rules for electronic submission of bills by January 1, 2012 . </li></ul>
    27. 27. MEDICAL PROVIDERS PROHIBITED FROM COLLECTING AGAINST CLAIMANTS <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Based on this provision, if the Commission determines that medical services or treatment were excessive or unnecessary, the medical provider will be prohibited from pursuing recovery for his charges against the claimant despite the fact that the claimant had a contract with the provider to pay for the medical services rendered. </li></ul><ul><li>ISSUE: Whether it is necessary to provide notice to medical provider with a challenged bill so that he / she can be heard on this issue before the bill is adjudicated. </li></ul>
    28. 28. TEMPORARY PARTIAL DISABILITY <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Current Statute uses NET earnings of the petitioner's light duty position for the purpose of calculating Temporary Partial Disability Benefits. </li></ul><ul><li>New statute will use the Gross earnings of the petitioner’s modified job in the calculation of Temporary Partial Disability Benefits. The amount paid for TPD benefits by the respondent will decrease. </li></ul>
    29. 29. UTILIZATION REVIEW PROGRAMS <ul><li>EFFECTIVE SEPTEMBER 1, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Applies to services provided on or after September 1, 2011. </li></ul><ul><li>Unlike the Section regarding the Medical Fee Schedule and disallowing collection actions by vendors for unreasonable or unnecessary medical services, this Section serves to take away the right of the petitioner to obtain desired and prescribed medical services which are deemed unnecessary. </li></ul><ul><li>The change in Section 8.7(a) seemingly does away with regional based standards of care for assessing the reasonableness and necessity of treatment and requires providers to comply with nationally recognized peer review guidelines and nationally recognized treatment guidelines. </li></ul><ul><li>Since Section 8(a) has not been similarly amended, the reasonableness and necessity of treatment not addressed by a utilization review would still be subject to a regional or local comparison. </li></ul>
    30. 30. UTILIZATION REVIEW PROGRAMS (cont’d) <ul><li>Throughout Section 8.7, the responsibilities of the Department of Financial and Professional Regulation have been transferred to the Department of Insurance. This transfers responsibility from an organization that oversees over 100 different industries to an organization whose job is specifically to oversee the insurance industry’s market behavior. </li></ul><ul><li>Section 8.7(i) is a new section that outlines some basic guidelines for both providers and employers when involved with an accredited utilization review program. </li></ul><ul><ul><li>It imposes a standard of reasonableness on providers to supply complete reports of supporting clinical information at the risk of not being able to collect their bills. </li></ul></ul><ul><ul><li>It requires that written notice of a utilization review decision with supporting clinical rationale be provided to both the provider and the employee. </li></ul></ul><ul><ul><li>It mandates that the denial of treatment through utilization review be based on the necessity of the treatment, excluding other bases such as causal connection. </li></ul></ul>
    31. 31. UTILIZATION REVIEW PROGRAMS (cont’d) <ul><li>When treatment is denied based on a utilization review, Section 8.7(i)(4) places the burden on the employee to show that a variance from the standard of care is reasonably required. </li></ul><ul><li>Section 8.7(i)(5) requires that the primary medical professional signing off on a utilization review be available for interview or deposition at the expense of the employer, whether in person, by telephone, video conference, or other remote electronic means. Exhibits and demonstrative evidence to be used in a deposition must be provided to all parties and the court reporter at a reasonable time prior to the deposition. If either party wishes to be present with the deponent they must give reasonable written notice to all other parties of their intention to appear. By referencing an interview in addition to a deposition and requiring the use of a court reporter, this section seemingly sanctions the discovery depositions of utilization review professionals. </li></ul>
    32. 32. UTILIZATION REVIEW PROGRAMS (cont’d) <ul><li>Section 8.7(i) requires that a utilization review be subject to the Illinois Rules of Evidence regarding admissibility and mandates that the Commission consider and address that evidence when reaching its decision on the necessity of treatment. </li></ul>
    33. 33. INTOXICATION DEFENSE <ul><li>EFFECTIVE SEPTEMBER 1, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>If intoxication is the proximate cause of the accident or if intoxication constitutes a departure from the employment such that the employee is unable to perform the essential functions of his job duties then the claim will not be compensable. </li></ul><ul><li>If proof of intoxication is established pursuant to the rules (.08% alcohol, cannabis, a controlled substance or any intoxicating compound) or if the employee refuses post-accident testing then there will be a rebuttable presumption that the employee was intoxicated and that his / her intoxicated state was the proximate cause of the accident. </li></ul><ul><li>Proximate cause means &quot;any cause which, in natural or probable sequence, produced the injury of which the employee complains.  It need not be the only cause, nor the last or nearest cause.  It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.&quot; </li></ul>
    34. 34. INTOXICATION DEFENSE (cont’d) <ul><li>Proof of intoxication must be considered in a hearing at the Illinois Workers' Compensation Commission if samples were tested at a certified lab and rules (to be established by the Commission) were followed concerning testing, labeling, and documentation. </li></ul><ul><li>If testing is not conducted by a certified lab or pursuant to the rules then evidence of intoxication from such testing will not be admissible. </li></ul><ul><li>The employee will be given the opportunity to provide information regarding relevant medical history and the use of legal medications. </li></ul><ul><li>If the employer establishes intoxication, the employee must overcome the presumption by a preponderance of evidence (the “more-likely-than-not” standard) that the intoxication was not the sole proximate cause or proximate cause of the accident. </li></ul><ul><li>IWCC must adopt Rules for testing </li></ul>
    35. 35. TRAINING PROGRAMS FOR COMMISSIONERS <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Formal training program for newly appointed Commissioners to be implemented. </li></ul><ul><ul><li>20 hours of training every two (2) years required. </li></ul></ul><ul><ul><li>Specific areas of concentration: </li></ul></ul><ul><ul><ul><li>1. Professional and ethical standards: </li></ul></ul></ul><ul><ul><ul><li>2. Detection of Workers’ Compensation Fraud and reporting obligations of Commission employees and appointees </li></ul></ul></ul><ul><ul><ul><li>3. Standards of evidence based medical treatment and best practices for measuring and improving quality and healthcare outcomes including use of AMA Guides and Utilization Review; and </li></ul></ul></ul><ul><ul><ul><li>4. Substantive and procedural aspects of coal workers’ pneumoconiosis (black lung) cases. </li></ul></ul></ul>
    36. 36. WORKERS’ COMPENSATION ADVISORY BOARD <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>All members of the current Advisory Board were terminated on June 28, 2011. Governor Quinn will appoint new members within 30 days. </li></ul><ul><li>Terminating all members of the current Advisory Board may delay appointment of the new Arbitrators because the Senate is not in session until after the summer break and the appointment of new Arbitrators require the advice and consent of the Senate. Furthermore, while the new Advisory Board is not required to provide recommendations for the new Arbitrator appointments, the Governor must ask for the recommendations of the Board. </li></ul><ul><li>New members appointed on July 20, 2011. </li></ul>
    37. 37. AMENDMENTS PERTAINING TO ARBITRATORS <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><ul><ul><li>Additional Arbitrator Training: </li></ul></ul></ul><ul><ul><ul><ul><li>Arbitrators are required to undertake the same additional training as is required of Commissioners. This is an obvious effort to professionalize the Workers’ Compensation Commission. The additional training requirements are intended to ensure a more complete understanding – and thereby reliance upon – the AMA Guides and the Utilization Review process. </li></ul></ul></ul></ul><ul><ul><ul><li>New Qualifications for Future Arbitrators: </li></ul></ul></ul><ul><ul><ul><ul><li>All new Arbitrators must be licensed to practice law by the Supreme Court and must retain this status throughout their appointment. This is clearly intended to ensure that the individuals determining cases are fully trained and well versed on the rules of evidence, evidentiary procedure, and due process. </li></ul></ul></ul></ul>
    38. 38. AMENDMENTS PERTAINING TO ARBITRATORS (cont’d) <ul><ul><ul><ul><li>The current non-attorney Arbitrators are exempt from this requirement as it only applies to an appointment after the enactment of this Amendment “ who has not previously served as an arbitrator for the Commission .” Thus, none of the existing Arbitrators will be disqualified for reappointment based on this new qualification. </li></ul></ul></ul></ul><ul><ul><ul><ul><li>Future Appointment/Reappointments: </li></ul></ul></ul></ul><ul><ul><ul><ul><li>The Arbitrator terms of office have been shortened from six years to three years. They are staggered to avoid complete turnover at the same time. The Chairman is required to assess each Arbitrator’s performance annually and must submit a recommendation to the full Commission for or against the reappointment of each Arbitrator. </li></ul></ul></ul></ul>
    39. 39. AMENDMENTS PERTAINING TO ARBITRATORS (cont’d) <ul><ul><ul><ul><li>The legislature removed the super majority vote that was previously required not to reappoint an Arbitrator (80% of the Commission) so now a simple majority vote may suffice not to reappoint an Arbitrator to a new three year term. Pursuant to this amendment, all currently sitting Arbitrators were terminated effective July 1, 2011, but the incumbents are required to continue working as usual until they are reappointed or their successors are appointed. </li></ul></ul></ul></ul><ul><ul><ul><li>Assignment of Venues: </li></ul></ul></ul><ul><ul><ul><ul><li>The Commission is now required to have at least three Arbitrators at each hearing site outside of Cook County. Furthermore, no Arbitrator can be assigned to a particular venue for more than two years out of their three-year term. This time limit does not apply to Arbitrators assigned to hear cases in Cook County. Based on the new requirement, we expect further consolidation of venues outside of Cook County. </li></ul></ul></ul></ul>
    40. 40. GIFT BAN <ul><li>EFFECTIVE JUNE 28, 2011 - SUBSTANTIVE CHANGE </li></ul><ul><li>Attorneys who practice before the Commission are now prohibited from giving “ gifts ” to any person “ in exchange for the referral of a client involving a matter to be heard before the Commission ” (except for the division of a fee between lawyers not in the same firm as is allowed by the Code of Professional Responsibility). </li></ul><ul><li>The legislature defined “ gift ” as any gratuity, discount, entertainment, hospitality, loan, forbearance or any tangible or intangible item having monetary value which includes cash, food, drink, honoraria except for food or refreshments not to exceed $75 per person on a single calendar day with the requirement that the food or refreshments are consumed on the premises from which there were purchased, prepared or catered. If this rule is violated it is punishable as a Class A misdemeanor (punishable by up to one year in jail). </li></ul>
    41. 41. GIFT BAN (cont’d) <ul><li>Before this provision was passed the regulation of the conduct of attorneys had always been the province of the Supreme Court of Illinois which regulated the conduct of all attorneys through the Code of Professional Responsibility. </li></ul><ul><li>The Code of Professional Responsibility in Rule 7.2(b) states in relevant part as follows: </li></ul><ul><ul><li>“ A lawyer shall not give anything of value to a person for recommending the lawyer’s services.” </li></ul></ul><ul><ul><li>ISSUE: </li></ul></ul><ul><ul><li>Whether the new gift ban is in conflict with the Code of Professional Responsibility? </li></ul></ul><ul><li> ISSUE: </li></ul><ul><ul><li>Whether the new gift ban is constitutional? (- due to legislative encroachment on a judicial area of responsibility?) </li></ul></ul>
    42. 42. CLAIMS BY COMMISSION EMPLOYEES <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>Claims by former and current employees of the Commission to be heard by a certified independent Arbitrator designated by the Chairman selected from a list of approved certified Arbitrators provided by the Commission Review Board. </li></ul><ul><li>The decision of the independent Arbitrator shall be the decision of the Commission, which decision may be appealed pursuant to Section 19(f). </li></ul>
    43. 43. UNLAWFUL TO PRESENT FALSE MEDICAL BILL FOR PAYMENT <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>The previous Section 25.5 provided various monetary and criminal penalties for persons committing any of eight specific types of fraudulent acts. </li></ul><ul><li>The amendment adds a ninth punishable offense: presenting a phony medical bill for services that were not provided. </li></ul><ul><li>The amendment increases the monetary and criminal penalties for violations of section 25.5 and adds a provision that a violator must reimburse a victim for any financial loss that the victim suffers as a consequence of the violator’s fraud. </li></ul><ul><li>The Illinois Department of Insurance became the agency for investigating such fraud, and must report any violations it uncovers to the Illinois Attorney General and the local State’s Attorney for prosecution. </li></ul>
    44. 44. UNLAWFUL TO PRESENT FALSE MEDICAL BILL FOR PAYMENT (cont’d) <ul><li>The Department of Insurance is given the power to issue subpoenas to physicians under an expanded Section 8-802 of the Illinois Code of Civil Procedure. The amendment also requires the Department of Insurance to make semi-annual summary reports to the Commission, the General Assembly, the Governor, and the attorney General. </li></ul><ul><li>In summary, the amendment not only addresses phony medical bills, but it increases penalties for all violations of Section 25.5 and increases authority for enforcement. </li></ul><ul><li>The fraud unit is also directed to implement a system of data mining, predictive modeling, “social network analysis,” and “scoring algorithms” to detect and prevent fraud, waste, and abuse. The system is to be in place on or before January 1, 2012. </li></ul>
    45. 45. RECALCULATION OF PREMIUM RATES <ul><li>EFFECTIVE JUNE 28, 2011 - PROCEDURAL CHANGE </li></ul><ul><li>The Director of Insurance is required to direct the appropriate parties within the Illinois Workers’ Compensation Commission to recalculate and publish, by September 1, 2011, the premium rates for the assigned risk pool and the workers’ compensation advisory premium rates to reflect the changes to the Workers’ Compensation Act. </li></ul>
    46. 46. INSURANCE OVERSIGHT <ul><li>EFFECTIVE APRIL 1, 2012- SUBSTANTIVE CHANGE </li></ul><ul><li>The Director of Insurance is required to prepare a detailed report examining the entire Illinois Workers’ Compensation system. </li></ul><ul><li>The Director will collect and provide information regarding: premiums; the national ranking of Illinois based on premium, profitability, loss ratios for workers’ compensation insurers, a breakdown of the benefits paid to injured employee, case management, utilization review, and litigation costs for insurance companies. </li></ul><ul><li>The Legislature will utilize the information contained in this report to evaluate how Illinois’ Workers’ Compensation system compares with those of the other states in terms of costs, profitability, and benefits paid to injured employees. </li></ul><ul><li>These annual reports will serve as the basis for future Workers’ Compensation reforms. </li></ul>
    47. 47. H.B. 1698 The 2011 Amendments to the Illinois Workers’ Compensation Act <ul><li>Where do we go from here? </li></ul>