State News : New York

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New York


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H&W New York Workers' Compensation Defense Newsletter

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Board Announces Proposals to Improve Medical Care for Injured Workers


On 4/17/18, the Board issued Subject No. 046-1058, which included a number of proposals the Board purports will improve medical care for injured workers.  The proposals include a planned June 2018 regulatory proposal to raise provider fees for services provided on or after 10/1/18. The Board also plans to eliminate the current Board treatment forms (C-4 and C-4.2) and replace them with the use of theCMS-1500 form commonly used by medical providers to bill health insurers.
The Board claims that this change is based on complaints from health providers that use of the C-4 and C-4.2 forms create significant additional administrative costs.  The Board plans to implement use of the CMS-1500 form by 1/1/19.
We believe that use of the CMS-1500 form will make it more difficult for self-insured employers, carriers, and third-party administrators to determine the appropriate payment rate as well as whether the treatment is casually related if a physician fails to attach a narrative report to the form. The CMS-1500 form does not provide any space to indicate a history of the injury, degree of disability, or indicate causal relationship to a date of injury or specific incident. Additionally, there is no space for a narrative. We recommend that our clients contact the Board and object to this proposed change because it will make it more difficult to administer claims and accurately pay injured workers.
The Board also announced that the first phase of the medical portal, one of the Board's Business Process Re-engineering (BPR) initiatives, will be rolled out later in 2018. An electronic medical portal allegedly will allow medical providers to “quickly and easily” determine whether their course of treatment is consistent with the Board’s Medical Treatment Guidelines. This is the first step in the Board’s transition to a paperless system.
Finally, the Board said that it and the Governor's Office are exploring options, including new legislation that will allow injured workers access to other provider types outside of physicians, chiropractors, podiatrists, and psychologists.  Proposed legislation would amend the Workers’ Compensation Law to allow nurse practitioners, physician’s assistants, licensed clinical social workers, and other providers to treat injured workers. We believe that although this proposed change may increase access to care for injured workers, it will come at the cost of a decline in quality of care.  We would object to the proposed legislation if it empowered such providers to render opinions on causal relationship upon which the Board could establish claims and make awards.


Two Board Panel Decisions Establish Board Jurisdiction for Determining §15(8) Reimbursement and Right of Payers to Obtain Reimbursement for Qualifying Expenses Paid More Than One Year Prior to the Reimbursement Request on Newly Established §15(8) Claims


For some time, the Special Funds Group (“SFG”) has argued that the Workers’ Compensation Board did not have jurisdiction to resolve disputes concerning reimbursement to carriers on established WCL §15(8) claims. SFG was able to obtain a Board Panel decision supporting their position and this has frustrated the efforts of carriers seeking reimbursement under §15(8) withheld by SFG.See, Corning, Inc., 2017 N.Y. Work. Comp. 90203937 (9/15/2017). TheCorning decision held that the Board did not have administrative jurisdiction over the WCL §15(8) reimbursement process. This left carriers without a forum to resolve disputes concerning §15(8) reimbursement.
On 1/11/18, a Board Panel, upon remand from the Full Board, issued a decision in Express Solutions, 2018 WL 1560704 (WCB #70106478; 1/11/18) in which it disavowed the prior holding inCorning, Inc., 2017 NY Work. Comp. 90203937 and established that the Board has jurisdiction over the reimbursement process as well as the right to adjudicate disputes concerning same. With the decision inExpress Solutions, carriers can seek relief from the Board in these matters, subject to the process laid out in that decision.
The Board Panel ruled that once WCL §15(8) liability is established by the Board, the carrier and SFG must follow the following process:
1) File a timely request for reimbursement with the SFG using the appropriate form including all necessary information and documentation;
2) The SFG screens the request for any incomplete or improper entries, issues confirmation of receipt, and reviews the request to determine if each item is eligible for reimbursement and was paid in accordance with all appropriate laws, regulations, fee schedules, and other appropriate considerations;
3) The SFG issues a response to the carrier indicating the dollar amount approved for each indemnity payment along with an explanation for reductions from the amount requested (if any). If the total amount of the medical reimbursement requests was not produced, SFG will not respond to the request, and will process for payment;
4) The carrier may request reconsideration of a response from SFG in which the reimbursement amount requested was reduced;
5) A senior staff person in SFG shall review the reconsideration request and issue its final determination; and
6) The carrier may seek review of SFG’s final determination by filing a timely request for further action, subject to WCL §23.
Although this process seems (and probably will be) cumbersome, the upshot is that there is now a process that the SFG must follow concerning §15(8) reimbursement requests. SFG’s failure to follow the process can be held to task before a WCLJ who has the power to direct reimbursement to the carrier. Additionally, this decision puts to rest the argument from SFG that the Board lacks the jurisdiction to resolve disputes concerning §15(8) reimbursement.
Express Solutionswas cited in a more recent Board Panel decision, Southco, 2018 N.Y. Work. Comp. 70107367 (4/10/18), which affirmed the Board’s repudiation of theCorning, Inc. decision.  The Southco decision also affirmed the rule, opposed by SFG, announced by the Board in Subject Number 046-223R dated December 12, 2008.  That Subject Number provided that as long as request for reimbursement is filed within one year of the date the Board establishes §15(8) applicability, the carrier is entitled to reimbursement of all qualifying expenses (indemnity and medical benefits paid beyond the 104 or 260 week retention period) even if such expenses were paid more than one year before the request for reimbursement.
InSouthco, the date of accident was 2/21/2001.  A timely claim for §15(8) relief was filed in 2002, but the Board did not find that §15(8) applied until 8/12/2016.   The carrier filed its requests for reimbursement from Special Funds in May and July 2017 (within one year).  Thus, the carrier would be entitled to reimbursement of medical and indemnity benefits paid beyond the 260 week retention period, not just those made within one year that reimbursement request.


New Court Decision Reminds Primary Payers to Rely on Medicare Final Demand Letter in Determining Amount of Conditional Payments


As Medicare primary payers, carriers and self-insured employers should be aware of the Trial Order issued by the Supreme Court of New York, New York County on 3/15/18 inMayo v. NYU Langone Medical Center, 2018 WL1335262 (N.Y. Sup.) (3/15/18). The Order vacated a settlement on the basis of mutual mistake of the parties because they relied on a Conditional Payment Letter for the amount of a conditional payment lien, rather than a final demand from Medicare. The difference between the amount of conditional payment reimbursement requested in the Letter and the final demand was $142,939.58!

The Plaintiff's estate inMayo moved for an order declaring a medical malpractice settlement null and void on the basis that relying on a Conditional Payment Letter requesting $2,824.50 in reimbursement rather than a final demand in the amount of $145,764.08 was a mutual mistake of the parties. The Defendant liability carrier argued that the mistake was not mutual, but a unilateral error on the part of the Plaintiff as Medicare beneficiary.  The liability carrier took the position that the Plaintiff failed to ensure that the conditional payment lien amount was correct. The court disagreed, finding that the mistake was mutual.

The significance of this decision is two-fold for primary payers. First, primary payers cannot rely on the total amount of the conditional payment lien stated in the Conditional Payment Letter at the time of settlement. Payers must obtain a final demand from the Centers for Medicare and Medicaid Services. This illustrates the importance of being vigilant in conditional payment research and response at every stage of the conditional payment recovery process.

Second, the Court refused to agree that the Plaintiff, as Medicare beneficiary, is solely responsible for conducting conditional payment research and resolving conditional payment demands. The Court specifically referenced, “the defendant’s potential liability with respect to Medicare liens,” as evidence supporting the argument that the error was mutual. Like the liability carrier in theMayo Order, workers’ compensation carriers and self-insured employers are potentially liable for conditional payment reimbursement. Thus, they must research conditional payments and resolve reimbursement claims when settling claims with Medicare beneficiaries.

Conditional payment research has been part of the Hamberger & Weiss WCMSA process since inception. In addition, our Settlement Team has been actively engaged in resolving conditional payment reimbursement claims since the advent of CMS’ Commercial Repayment Center. To date, we have successfully challenged over $750,000 in conditional payment claims. For any questions concerning the Medicare conditional payment process, please contact our partner,Nicole Graci.


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