Archive for the ‘Medical Treatment’ Category

President Obama signs Medicare lien reform legislation

By Gary E. Adams

Friday, January 11th, 2013

President Obama has signed changes to the Medicare Secondary Payer Act as passed by the Congress.  These changes clarify the methods to be used in obtaining information from Medicare relating to payments made by them, and imposes time limits on Medicare to respond to requests for information.

For injured workers, these changes mean that there should be fewer delays in the resolution of their claims for work-related injuries due to Medicare’s historically slow responses to requests for information.  For workers’ compensation practitioners, this simplifies the process for obtaining information and gives them some assurance that Medicare cannot pursue claims for reimbursement beyond specified time limits.  Prior to the passage of this Act, Medicare could arguably pursue claims for reimbursement for an unlimited time.

The revisions to the Act include:

Section 201 – Determination of Reimbursement Amount through CMS Website

This section is effective nine (9) months after it is passed into law which is the deadline that CMS must promulgate final regulations to carry it out. It applies to both workers’ compensation and liability claims. The new law outlines a process by which Parties may request a demand letter from Medicare that is good for a period of time before disposition of case. It requires CMS be provided notice within 120 days of an expected or reasonably expected date of settlement, and the expected date of settlement. CMS has 65 days to produce a demand letter, but can extend it another 30 days. After the appropriate time period has lapsed, the Parties can retrieve the Demand information from the website and rely on it so long as the settlement occurs within 120 days of notice and 3 days from the last download of the website. This part also includes a mini-dispute process. If elected, the Secretary’s determination is final and not subject to appeal.

This procedure is an alternative and does not replace the procedure presently provided for by CMS and its contractors. If the process is not followed correctly, the default is what occurs today. No doubt there are consequences as CMS will work hard to mitigate its exposure.

This Section also provides for a right of appeal. It is a new right granted to the insurance carrier that can be taken without consent of the Medicare beneficiary, only notice is required to the Medicare beneficiary. CMS is required to promulgate regulations presumably within nine (9) months. However, the legislation does create potential jurisdiction in Federal Courts for insurance carriers that does not exist today.

Section 205 – Statute of Limitations

This section of the law is effective six (6) months after enactment.  It applies to workers’ compensation, liability and no-fault claims.  The law amends actions brought by the U.S. pursuant to 42 U.S.C. §1395y(b)(2)(B)(iii) and limits actions to enforce reimbursement claims and penalties to three (3) years from Mandatory Insurance Report (Section 111) report of a Settlement, Judgment, Award or Other Payment.  As it exists today, the limitations period is unclear as some Courts have made varying interpretations of the general limitations clause and its applicability to the Medicare Secondary Payer Act.  The new law sets a clear standard, but to trigger protection, the claim must be electronically reported under 42 U.S.C. §1395y(b)(8).  Cases exempt by CMS establish reporting thresholds presumably will follow the general limitations period as interpreted by case law.

Your Right to Receive Medical Treatment When You’re Injured at Work

By Gary E. Adams

Thursday, May 19th, 2011

Until it happens to them, most people don’t give much thought about getting medical treatment if they sustain a serious workplace injury.

When we have personal medical problems, those of us who are fortunate enough to have private health insurance are accustomed to being able to choose our primary physician, and can go to specialists whom we select. If we get poor quality treatment from our physician, are treated rudely by the physician or his staff, we simply go elsewhere for our treatment.

Unfortunately, an entirely different set of rules apply for medical treatment following a work-related injury. Under New Jersey Workers’ Compensation Law, an employee who sustains an injury on the job, regardless of fault, is entitled to all reasonable and necessary medical treatment related to that work injury. Every employer in this State is required to carry workers’ compensation insurance to cover the cost of this treatment. The workers’ compensation carrier is obliged to pay 100% of the cost of this medical treatment, with no limitation as to the total amount payable. There are no co-pays or deductibles; all related medical expenses are covered, including prescription drugs and medical devices. There is no time limit on how long the workers’ compensation carrier has to continue providing medical treatment. If your work injury requires five years of treatment, that is what the carrier has to provide.

Sounds good so far. Here’s the rub: New Jersey Workers’ Compensation Law provides, without exception, that the workers’ compensation carrier has the right to determine the provider of your medical treatment. This means that the injured worker has absolutely no input in the decision as to the provider of his medical treatment. As such, if you sustain a workplace injury, you are obligated to go to the physician chosen by your employer or its workers’ compensation insurance carrier.

What Will Happen If You Have A Work-Related Injury

This is what typically happens when you have an injury on the job. Your employer contacts the workers’ compensation carrier, who directs you to a medical provider. Typically, that physician is either the “company doctor”, a physician who is under contract with your employer or the insurance company, or to an occupational health center, which is a clinic type facility which relies exclusively on referrals from employers and workers’ compensation carriers. These medical providers, because most or all of their business is obtained from workers’ compensation carriers, tend to abide very carefully by the rules and requirements imposed upon them by the carriers. In many situations, a competitive bidding process in used to determine which medical providers are selected by the carriers.

Because the patient cannot elect to go to a provider other than those selected by the carrier or employer, many of the physicians providing treatment to injured workers tend to develop patterns of behavior in how they practice medicine. Because of pressures to keep costs down, the physicians have to see as many patients as possible per day. Backlogs and delays getting in to see the physician are the norm. Diagnostic studies that a private physician might order without a second thought are deferred or just not obtained at all. Referrals to specialists are delayed or denied. Patients are treated in an assembly line fashion, and are given little time to discuss their injury and its consequences with the physician.

The injured worker frequently also has to deal with a physician whose attitude toward them is negative from day one. Many of these doctors, either by training or personal philosophy, tend to have an anti-injured worker mentality. They assume that the worker is feigning or exaggerating their symptoms, or trying to find an excuse to stay out of work. If they can find any justification for determining that the worker’s condition is not due to the work injury, they are quick to blame the condition on something else, such as a pre-existing condition. This mentality is a byproduct of pressure from the insurance carriers. If the physician doesn’t play by the carrier’s rules, the patients are directed elsewhere. If a physician is too much of an advocate for his patient, and argues with the insurance adjuster about the course of recommended treatment, the carrier simply won’t use that physician in the future.

What Can You Do If You Are Denied Appropriate Medical Care?

So- what can you do if the physician designated to treat you for your work injury is not treating you appropriately? The initial response of many injured workers who are at odds with the appointed physician is to go to their own doctor, using their personal health insurance. Unfortunately, this can create more problems than it solves. Health insurance policies uniformly contain a provision that treatment for work-related injuries is excluded from coverage. As such, most private physicians will not treat work-related injuries. Even if they do, the cost of their treatment is not covered by private health insurance.

Fortunately, New Jersey Workers’ Compensation law does provide for a method to contest the treatment (or lack thereof) being provided by the workers’ compensation doctor. An injured worker has the right to file an Employees Claim Petition with the Division of Workers’ Compensation. This Division has over 50 Workers’ Compensation Judges, with Courts throughout the State, whose function is to hear disputes involving injured workers. The Judges of Compensation have the authority to order workers’ compensation carriers to provide appropriate medical treatment to workers who are being denied that treatment.

Do I Need A Workers’ Compensation Attorney If A Dispute Arises About My Medical Care?

Because of the complexities of proceeding with a claim in Workers’ Compensation Court, it is highly recommended that you retain a Workers’ Compensation attorney to assist you in that process. Because this is a highly specialized field, you should select an attorney with expertise in this area. The Supreme Court of New Jersey certifies attorneys with expertise in the field of workers’ compensation law. Your attorney will not charge a fee for representing you in a workers’ compensation claim until the matter is concluded. The Judge of Compensation who hears your case sets the attorney’s fee after the matter is heard, and under no circumstances is that fee greater than 20% of the award.

What Will Happen Once I have Filed My Workers’ Compensation Claim?

Once your claim has been filed, if a dispute regarding your medical treatment arises, your Workers’ Compensation attorney can file a Motion for Medical Treatment, which is given priority by the Court, which will ordinarily list the Motion for a hearing within 30 days of the date of filing. The Judge has the authority to direct the insurance carrier to provide medical treatment, provide an evaluation by a specialist, or direct that diagnostic studies be done.

If you find yourself at odds with your employer or its workers’ compensation insurance carrier regarding the medical treatment being provided to you, it’s important to be aware that they do not necessarily have the last word regarding your medical treatment. You have the right to dispute a denial of treatment. You can obtain legal representation without having to incur any out of pocket expenses for that representation. An independent workers’ compensation judge will hear your dispute and can direct the insurance carrier to provide you with all reasonable and necessary treatment your condition requires.