Q1 – 2020 – April 17, 2020
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Research Results of CWCI Survey on Telemedicine/Other Claim Administration Changes. To gather member input on proposed changes to the med-legal process, as well as the challenges of delivering benefits and administering claims during the COVID-19 crisis, the Institute conducted a member survey to gauge how ready and willing claims organizations are to leverage telemedicine for QME evaluations and other services. Many of the comments received provided valuable insight on where and when telemedicine could be viable, issues that would need to be addressed to implement this type of change, and other issues related to benefit delivery during the pandemic. A summary of the results was provided to Institute members. Executive Memo (3/24/20) (members only) Summary of NASI Data Comparing California WC Experience to Other States. California accounted for 11.9% of all jobs covered by workers’ comp in the U.S. in 2017, 14.1% of covered payroll, and 19.6% of cash and medical benefits paid for work injuries and illnesses according to estimates reported by the National Academy of Social Insurance (NASI). Nationwide, state & federal WC programs, including both insured and self-insured employers, covered 140 million jobs and about $7.8 trillion in payroll in CY 2017. Paid benefits totaled $61.9 billion ($30.8 billion medical, $31.1 billion indemnity), almost identical to the CY 2016 total. Calif remained far and away the largest WC system, w/16.8 million covered jobs, $1.1 trillion in covered wages, and $12.1 billion in paid benefits – almost double the total for NY (which was 2nd w/about $6.2 billion) and more than triple the $3.5 billion paid under federal programs. Altogether, 15 states paid more than $1 billion in WC benefits in 2017, w/the 10 highest volume states accounting for 58.7% of the nationwide total. The table below shows 2017 paid benefits (in $ billions) for the top 10 states and for non-federal vs. federal programs; and notes aggregate payments nationwide. There were no changes in the rankings of the top 10 states from 2016. In California, estimated total paid losses showed almost no change from 2016, as a slight decline in medical payments was offset by a slight increase in total indemnity payments. Executive Briefing (3/5/20) (members only) Workplace Fatalities Rise. After holding steady at 2.2 deaths per 100,000 workers since 2015, DIR reported California’s workplace fatality rate increased to 2.3 deaths in 2018, as 422 work-related deaths were reported for the year, up from 376 in 2017. That rate, however, remained below the nationwide workplace fatality rate of 3.5 deaths per 100,000 workers. As usual, transportation incidents were the #1 cause of workplace fatalities in the state – cited in 36% of the fatal incidents in 2018, with drivers/sales workers and truck drivers suffering more fatal incidents than any other occupations. After transportation incidents, 22% of fatalities were through violence and other injuries by persons or animals, including homicides, suicides and insect-related deaths, and 17% were caused by slips, trips and falls. Cal/OSHA is particularly concerned about the disproportionate share of Latino deaths: 43% of workers killed on the job were Latinos – the most of any racial group, largely reflecting their prevalence in high-hazard jobs (e.g., agriculture & construction). In addition, 90% of workers killed on the job were male, but more women were killed by violence than by transportation incidents. Executive Briefing (3/5/20) (members only) Trends in the Utilization and Reimbursement of Professional Medical Services in California Workers Compensation, 2013-2018. CWCI’s analysis of changes in the volume and reimbursement of California workers comp professional medical services from 2013-2018, which includes the 4-year transition to the RBRVS fee schedule that began in 2014. The study reviews data from nearly 36 million medical services rendered to injured workers during that period to measure shifts in the mix of services and payments across and within 9 major service categories and discusses the underlying changes to the fee schedule that affected those moves. Research Update (2/12/20) (public) Bulletin (2/12/20) (members only) Executive Briefing (2/14/20) (members only) News Release (2/12/20) (public) CWCI Updates Interactive Tools with Data on Claims Through June 2019. CWCI completed updates to its four interactive data applications (the Claims Monitoring, Regional Scorecard, Prescription Drug, and Inpatient Hospital Claim tools). Members who log on to www.cwci.org with their user name and password can access each of these updated applications from the drop down menu under the Research tab on our home page. The applications provide online access to detailed data to examine and compare industry data on key metrics in each of the specific areas. In addition, there are on-line tutorials available for each application. Executive Memo (1/23/20) (members only)
Statutory/Regulatory New Codes For COVID-19 Efforts are underway to implement standards for tracking and reporting COVID-19, including the development of several new codes. These include an ICD-10 code U07.1, which clinicians should use to report COVID-19 cases effective 4/1/20; new WCIO catastrophe code 12, nature of injury code 83 (COVID-19), and cause of injury code 83 (Pandemic), which insurers should use to report COVID-19 claims to the WCIRB and for WCIS FROI/SROI reporting; and new HCPCS Level 2 codes U0001 and U0002 which were added to the Pathology and Laboratory section of the OMFS for COVID-19 testing. Bulletin (3/30/20) (members only) Annual Report of Inventory Due Date Is Unchanged. The Institute confirmed with the Manager of the DWC Audit Unit that despite the statewide shelter in place order, there was no change in the April 1 deadline for workers’ compensation claims administrators to file their 2020 Annual Report of Inventory (ARI) for Claims Reported During Calendar Year 2019. An inventory report must be filed even if the adjusting location had no claims reported to it in the prior year, and regardless of whether it received an inventory form from the Division. Failure to submit the report by April 1 may result in penalties of up to $500 per adjusting location. Executive Memo (3/20/20) (members only) DWC Audit Unit Guidance in Regard to Claim Penalties During the Pandemic. DWC has no authority to say anything on 5814 penalties; if a judge decides a penalty under that section is appropriate, then that has to be taken up the WCAB ladder. That said, the DWC Audit Unit offered the following guidance in regard to workers’ comp claim penalties during the COVID-19 pandemic:
Executive Memo (3/20/20) (members only) CWCI Opts for Virtual Claims Committee and Annual Meetings Due to COVID-19 Concerns. Due to growing concerns for the health and safety of CWCI members and staff, as well as a growing number of travel and meeting restrictions CWCI opted to conduct virtual rather than in-person sessions for its March 16th Claims and Medical Care Committees Meeting and its March 17th Annual Meeting of Members. Although Alameda County had not yet called for cancellation of public events, several nearby counties have made that recommendation. The dates and times of both meetings were still scheduled for March 16th, 9:30 a.m. to noon (Pacific), Tuesday, March 17, 9 a.m. to noon (Pacific). Executive Memo (3/9/20) (members only) Bill to Add Protections for Medical Marijuana Job Applicants & Employees. In 2018, Assembly- man Rob Bonta introduced AB 2069 to ban employer discrimination against workers based on their status as a cannabis user or on a positive drug test for cannabis if they had a medical marijuana card — adding medical marijuana users as a protected class under FEHA antidiscrimination provisions. AB 2069 failed, but on Feb 21, Bonta introduced AB 2355 that would make it unlawful for an employer to refuse to employ, or to fire or discriminate against an employee because they use medical marijuana. AB 2355 would only protect workers using medical marijuana, not recreational users. CalNorml says it would grant workers who use medical cannabis the same rights to reasonable accommodation and the associated interactive process as are provided to workers prescribed other legal drugs. But it could conflict w/Prop 64 which allows employers to have drug-free workplace policies and terminate workers who violate them. In an effort to secure passage of AB 2355, Bonta added some exceptions to the proposed protections: 1) Employers could still refuse to hire applicants or terminate current employees, if retaining them would cause the employer to lose a monetary or licensing-related benefit; or incur damages under federal law or regs, including Dept of Transportation regs; 2) Employers would be exempt from AB 2355 if they require all employees and job applicants to be drug and alcohol-free for legitimate safety reasons as required by federal or state laws; and 3) Employers would still have the right to refuse accommodation, suspend an employee, or take other lawful action if they find an employee is using or impaired by medical cannabis at work or during working hours. Executive Briefing (3/5/20) (members only) Big WCMSA Reporting Penalties Proposed… Federal law requires WC insurers to report Medicare enrollees on a quarterly basis, including their responsibility for treatment, total payment obligation, and any settlement, judgment or other award. Since 2013 CMS has had discretion over both the imposition and amount of the reporting penalties, but in February Medicare issued draft regs that call for mandatory imposition of $1K/day civil penalties up to $365K/claim/year if a responsible reporting entity: 1) fails to register and report; 2) reports but exceeds the error tolerance level set by CMS by 20% or more (“significant” errors include failure to provide a claimant’s full name, correct date of birth, or matching tax ID number); or 3) if down the road, the reported info is contradicted when CMS attempts to recover conditional payments made for the total payment obligation to the claimant and the ongoing responsibility for medicals from the responsible reporting entity. The regs have a 5-year statute of limitations so penalties could not be imposed more than 5 years after the date of noncompliance, would not be retroactive, and would apply only to noncompliance after the effective date, probably at the end of 2020. CMS says it will communicate with reporting entities informally and allow mitigating evidence to be presented. If fines are imposed, violators could request a hearing w/an administrative law judge w/in 60 days. The ALJ’s decision could be appealed w/in 30 days to a Departmental Appeals Board. Public comments on the draft regs can be submitted via the fed’s website through 4/20/20. Executive Briefing (3/5/20) (members only) DWC Announces Pilot Program for Electronic Filing of Doctor’s First Report. A Doctors’ First Report of Injury (Form 5021) must be filed w/the employer’s insurer (or the employer if self-insured) w/in 5 days of an initial exam. The forms are currently only available on paper, but DWC wants to eventually phase out paper copies. As a first step, DWC announced a pilot program in which doctors can volunteer to submit their 5021 reports to the Division via an electronic portal, though they will still have to send copies to claims administrators. Large volume filers such as hospitals were also invited to participate in the pilot program. The announcement did not provide a timeline for the project, but DWC posted a web page with more info on the pilot program, and a statement that the Division plans to draft regs requiring electronic reporting “in the future” with the intent to phase out paper filing. CWCI will track the project and post proposed draft regs when available. Executive Briefing (2/14/20) (members only) OAL Rejects OSIP Regs. In a rare rebuke, the Office of Administrative Law (OAL) rejected a proposed update to public self-insurance regs submitted by the Office of Self-Insurance Plans (OSIP), citing a failure to follow the Administrative Procedures Act’s financial impact rules and a failure to meet the Gov’t Code’s clarity standard. The proposed regs included new requirements that public agencies file annual reports with OSIP, but public comments received during the drafting of the regs – including those by CWCI – voiced concerns that some of the terms in the regs were not clearly defined in a way that had any meaning to the public self-insured entities, and that OSIP had underestimated the cost of complying with the new reporting requirement. However, for the most part OSIP rejected the comments and submitted the proposed regs to OAL. OSIP is working to correct the problems, but had not yet released a revised version of the regs, which needed to go through another public comment period before they can be resubmitted to OAL. CWCI will monitor these regs. Executive Briefing (2/14/20) (members only)
Legal CWCI Announces Live Training Webinar on the New WCAB Rules of Practice & Procedure. The Institute announced a live 90-minute webinar would be held on February 20 to introduce workers’ compensation professionals to the new Workers’ Compensation Appeals Board Rules of Practice and Procedure that took effect January 1, 2020. The program, “The New WCAB Rules of Practice and Procedure: What You Need to Know Now,” was developed and presented by CWCI General Counsel Ellen Sims Langille and CWCI Claims and Medical Director Jackie Secia, and was also recorded and made available on-demand for those who are unable to attend the live session. Executive Briefing (2/14/20) (members only) News Release (2/13/20) (public) New WCAB Rules of Practice & Procedure Effective 1/1/20. During the last week of December 2019, CWCI learned that the WCAB, with no public announcement, had made significant revisions to the Rules of Practice and Procedure that had been proposed in September and filed them as final regulations with the Secretary of State on December 17, accompanied by a Final Statement of Reasons (FSOR). The regulations encompass a vast array of new and amended Rules of Practice and Procedure. In some instances, the changes are minor and technical, including the reorganization and re-numbering of dozens of rules; in other instances, the changes are more substantive and will require a shift in claims and defense practices. WCAB finally issued a Newsline on January 2 confirming that the new rules had taken effect. CWCI posted the final text document and FSOR (250 + pages) on our website and CWCI’s General Counsel prepared a summary for members and the Institute announced it would conduct a webinar to reviewing the new rules. Executive Memo (1/2/20) (members only)
Other CWCI Offers 2020 Annual Meeting Presentations Offered as Via Webinar. Three presentations developed for CWCI’s 2020 Annual Meeting were recorded and made available free to Institute members. The 90-minute program “The Future Ain’t What It Used to Be: COVID-19 Intersects with Liability, The Economy, & Access to Care,” was initially presented on 3/24/20, then made available as an on-demand webinar through April 24. In the first session, CWCI General Counsel Ellen Sims Langille provides a brief overview of the potential workers’ compensation liability for COVID-19 claims, discussing the burden of proof that most workers would face in meeting AOE/COE standards of compensability, even in situations where they may have been exposed to the virus at work. The session explores cases applicable to cold and flu, Valley Fever, and presumption of compensability. The second presentation features Dr. Mark Schniepp, Director of the California Economic Forecast, who shares his thoughts on the current economic outlook for California and the U.S., including his data and observations on the impact of COVID-19 on the California and national economies and what the future may hold. The third presentation by Dr. Richard Riemer, Senior Associate Dean at the Touro University of Osteopathic Medicine and Medical Director for the Schools Insurance Authority reviews ongoing issues in access to care, the development of the next generation of occupational medicine providers, and how COVID-19 is exacerbating the stress points in our local and national healthcare system. Executive Memo (3/18/20) (members only) Executive Memo (3/25/20) (members only) CWCI Elects News Board of Directors for 2020. Matthew Zender of AmTrust North America was elected Chairman of the California Workers’ Compensation Institute (CWCI) Board of Directors for 2020. Mr. Zender, who served as the Vice-Chair of the Board in 2019, replaces Rose Barrett of North American Casualty Company, who will continue to serve on the Institute’s Board and Executive Committee this year. Joining Mr. Zender and Ms. Barrett on CWCI’s 2020 Executive Committee will be Martin Brady of Schools Insurance Authority, an associate member; Kris Mathis, CopperPoint Insurance Companies; David Mitchell, Republic Indemnity Company of America; Vernon Steiner, State Compensation Insurance Fund; and Sharon Thaler, AIG. Representatives of 13 other members were also named to serve as Board members for 2020. News Release (3/23/20) (public) Minutes from the Claims and Medical Care Committees Meeting. The meeting was held via teleconference on March 16. Discussions included a review of regulatory activity in regard to the regs in the following areas (OSIP reporting requirements, proposed SIU regs, WCAB Rules of Practice & Procedure). Ms. Jones and Ms. Secia reviewed discussions at stakeholder meetings in regard to proposed revisions and improvements to the Med-Legal Fee Schedule, including new fee proposals. Ms. Secia highlighted the new tighter audit standards and issues specific to DWC claim administrator audits. Ms. Jones reviewed the recent Pharmacy and Therapeutics Committee meeting and Ms. Langille provided highlights from CAAA’s Winter Convention. Ms. Jones discussed recent CWCI studies noting trends in the utilization and reimbursement of professional medical services in California workers comp and IMR outcomes from 2013 through 2019. Ms. Langille reviewed CWCI’s amicus participation in Co. of Santa Clara v. WCAB (Justice) which involves a significant apportionment issue (Writ of Review was granted on 11/18/19 and CWCI will sponsor a moot court session for the defense attorney prior to oral argument). Ms. Langille also reported on recent decisions in Meadowbrook v. WCAB; Colamonico, and Dennis. Ms. Secia discussed bills that would provide a presumption to acute care workers (SB 893) and provide certain employment protections to medical marijuana users (AB 2355); then alerted the committee to proposed CMS regs that would impose penalties of $1,000 per day up to $365,000 per year for WCMSA reporting infractions. The meeting concluded with a reminder that CWCI’s Annual Meeting would be presented as a webcast due to the COVID-19 outbreak. Meeting Minutes (3/16/20) (members only) CWCI Office Temporarily Closed Due to COVID-19 Shelter in Place Order. In response to the Covid-19 pandemic, the County Health Officers of Alameda County and all other Bay Area Counties issued shelter in place orders directing all businesses and governmental agencies to cease non-essential operations at physical locations in their respective counties, prohibiting all non-essential gatherings of any number of individuals, and ordering cessation of all non-essential travel. The order took effect at 12:01 a.m. Tuesday, March 17 and was scheduled to run until 11:59 p.m. on Tuesday, April 7, 2020, or until it was extended, rescinded, superseded, or amended in writing by the health officer. This order forced the closure of the CWCI office in Oakland but all CWCI staff began working remotely effective Tuesday, March 17, and will continue to do so for the duration of the shelter-in-place order. Staff members may be contacted via our work emails or by calling the Institute’s main line Executive Memo (3/16/20) (members only) Bulletin (3/17/20) (members only) New DIR Director Appointed. Governor Newsom has appointed Katrina S. Hagen as the Director of California Department of Industrial Relations (DIR) which oversees a number of regulatory agencies related to workers’ compensation including the Division of Workers’ Compensation; the Office of Self-Insurance Plans; the Division of Occupational Safety and Health (Cal-OSHA); and the Division of Labor Standards Enforcement. Bulletin (3/9/20) (members only) CWCI Webinar on New WCAB Rules of Practice & Procedure. The Institute’s training webinar designed to introduce workers’ compensation claims and legal professionals to the new Workers’ Compensation Appeals Board Rules that took effect January 1, 2020 was recorded and is available as an on-demand program. The webinar, which covers the myriad changes to the Rules of Practice and Procedure that affect nearly every aspect of workers’ compensation practice in the state is free for CWCI members, and $99 for nonmembers. MCLE credits are available for the program. Executive Memo (2/24/20) (members only) Medicare Decision Opens Door to Acupuncture for Chronic Low Back Pain in WCMSAs… On 1/21/20 the Centers for Medicare & Medicaid Services (CMS) issued a Decision Memo announcing that, for the first time beyond clinical trials, it will begin covering acupuncture for the treatment of chronic lower back pain. The decision, which took effect immediately, allows up to 20 acupuncture visits per year (12 initial visits w/in 90 days, plus an additional 8 sessions if the patient shows improvement. Prior to this decision allocations for acupuncture within WC Medicare Set-Aside Agreements were precluded because acupuncture was not a Medicare-covered service. Given the prevalence of chronic low back pain in WC, requests for acupuncture reimbursements will likely soon be incorporated into MSAs – including pre-existing WCMSAs for chronic low back pain that didn’t originally include this type of treatment. In addition, if a Medicare beneficiary w/a WC chronic low back pain claim receives acupuncture paid by Medicare and the WC insurer is deemed responsible, Medicare may demand reimbursement. Executive Briefing (2/14/20) (members only) CWCI’s 2020 Annual Meeting. Save the date: Our 56th Annual Mtg is scheduled for Tues., 3/17/20 at the Oakland Marriott. The theme for the mtg is “The Future Ain’t What It Used to Be.” More details on topics, speakers and formal invitations will be issued soon, but in the meantime mark your calendars. Executive Briefing (2/14/20) (members only) Minutes from the Legal Committee Meeting. The Feb. 13 meeting was held via conference call/webinar. The agenda included an update on CWCI amicus participation in County of Santa Clara v. WCAB (Justice) in which a writ has been granted and the Institute will offer a moot court session after the oral argument date is announced; case law updates including the en banc decision in Colamonico, the published decision in Meadowbrook v. WCAB, and the Appeals Board’s notice of intent to issue an en banc ruling in Dennis; Mr. Allweiss reported that CalChamber has no new amicus activity. Committee members received an update on regulatory activity in regard to the MTUS and new codes added to the Formulary, SIU, CCPA, OSIP reporting requirements, the CCPA and pending amendments to the MLFS. Ms. Langille discussed several 2020 bills: AB 1815 and 1832 (QME pay); AB 5 which includes $17.5 for DIR staffing and provisions for Dynamex exemptions; and AB 893 (acute care worker presumption). Reports from CAAA’s winter convention covered sessions on: strategies to obtain substantial medical evidence from a PTP to undermine a poor QME report; the WCAB Commissioner Panel that reported the backlog of cases is nearly cleared and noted WCAB efforts to educate Appeals Courts that don’t follow Board decisions; a causation of PD session that examined 4 cases; and a session on UR/IMR that discussed options for objecting to medical necessity decisions. A review of the litigation environment and general discussion noted the state auditor’s recommendations following the audit of DWC’s QME appointment process; a new state portal to provide online info to workers and employers on issues such as misclassification and worker protections; a surge in the use of VR experts in So. California; appointments of new presiding judges in L.A. and Van Nuys WCAB; DWC plans to replace EAMS; Medicare’s decision to cover acupuncture; and EDD benefit denials in cases that are potentially work injuries. Meeting Minutes (2/13/20) (members only) Jacqueline Secia Named CWCI Claims and Medical Director. CWCI President Alex Swedlow announced the appointment of Jacqueline Secia as the Institute’s Claims and Medical Director, effective immediately. In her new role, she will oversee CWCI’s activities related to claims administration and medical services; serve as staff liaison to CWCI’s Claims and Medical Care Committees; and work with Institute staff, members, and others in the community on research, regulatory testimony, and education in those key areas. News Release (1/15/20) (public) CWCI Quarterly Summary. Quarterly listings of all CWCI publications, including publication dates, brief summaries of each topic and the various formats in which the information is available (e.g., research report, Bulletin, Executive Briefing, news release), so users can choose the level of detail they want to view. Listings include live links so users can click into the CWCI website to access specific documents quickly and easily. |