Board of Industrial Insurance Appeals

Business Representative Search Update

As announced in the October 2008 FYI, the employer community is in the process of filling the vacancy on the Board of Industrial Insurance Appeals.  Five applicants have submitted their names for the position.  Interviews with the candidates will be held on Friday, November 21st.  It is hoped that the list of three names, to be submitted to Governor Gregoire for consideration, will be submitted in short order.  Watch this space for updates as they become available.

Self-Insured Ombudsman

Position Gains OPM Approval

With the Governor's executive order limiting travel and placing a freeze on hiring, the position of self-insured Ombudsman has been approved by the Office of Personnel Management to be exempt from the Governor's executive order.  The Department is in the process of compiling the interview questions, and putting together the interview panel.  Apparently the Department is questioning the need for a self-insurer to serve on the interview committee or not.  No decision has yet been made on self-insurer participation, or whether they will seek out WSIA's input on who may wish to serve in that capacity.  Also, no announcement has been made about the timeline for conducting the interviews, and for filling the position.  Please watch this space for updates as they become available.  ADDITIONALLY, if you would like to serve on the interview panel (assuming that the Department does seek out self-insured employer input, please email WSIA Executive Director Dave Kaplan at dave.kaplan@wsiassn.org and express your interest.  There is no guarantee of selection, as the process is entirely at the discretion of the Department.

Draft SIEDRS Rules,

Including Penalties, Announced

A public hearing will be held on December 2, 2008, to allow any interested person to present comments on the proposed rules for SIEDRS.  As required by the 2003 statute, the Department is to adopt rules that will ensure self-insured employer compliance with data submittal.  To effectuate that, the proposed rules include penalties (mostly monetary) up to and including decertification for non-compliance.  If you would like to review the proposed rules, you can find them HERE.

Department Announces

Assessment Rates for Self-Insurers for 2009

The Department of Labor & Industries has released the 2009 assessment rates for self-insurer's Administrative Assessments, Second Injury Fund, and for the new Self-Insured Overpayment Reimbursement Fund.  The rates for the Administrative Assessment (both the Base Rate and the Adjusted Rate) will decline a bit from the prior fiscal year.  The rate for the Second Injury Fund will also decline, in small part due to slightly lower projected costs for 2009 and in large part due to the amount of excess reserves carried forward from 2007.  The new Self-Insured Overpayment Reimbursement Fund is funded through a $.0004 rate per hour ON WORKERS, to fund employer reimbursement for overpayments resulting from benefits paid on appeal that are later overturned at the Board of Industrial Insurance Appeals or in Court.  The Supplemental Pension Fund and Asbestos Fund assessments will be released around the first week in December 2008, when the State Fund rates are finalized.  Click HERE for the memo on the Administrative Assessment. Click HERE for the memo on the Second Injury Fund assessment.  Click HERE for the memo on the Self-Insured Employer Overpayment Reimbursement Fund assessment.  In addition, the Department also released the third quarter memo on the Insolvency Trust Fund rate.  Click HERE for the memo on the Third Quarter Insolvency Trust Fund assessment.

Department Provides Self-Insured

Overpayment Reimbursement Fund Insert

The Department has provided an insert for self-insured employers to include with future paychecks, explaining the assessment for the Self-Insurer Overpayment Reimbursement Fund assessment.  As outlined above, the SIORF assessment will begin January 1, 2009, and is paid by the workers for reimbursing self-insured employers for benefits mistakenly paid on appeal.  You can access the paycheck insert HERE.

Update on Vocational Rehabilitation

Option 2 Proposed Rules

Here's a quick update on the vocational rehabilitation rules concerning Option 2 benefits and Department-approved programs/schools for voc programs.  The Department has confirmed that they currently plan to have draft rule language for the subcommittee in December 2008, and will likely file a CR 102 in February 2009, after additional external stakeholdering.  This would mean hearings in late March/early April 2009, and a rule adoption in May 2009.  This is later than expressed in the semi-annual schedule, which is probably what most of you have been following.  As you know, this schedule gives information to interested parties about what's coming and our planned, tentative dates, but they are estimates that can shift, depending on issues or additional priorities that may come up.

Medicare & Medicaid Claim Reporting

Conference Call Set for October 29, 2009

For those of you who may be unaware, a provision in a bill passed by Congress in December 2007 requires general health care and liability insurers (including self-insurers for workers' compensation) to report all of their claims electronically, beginning July 1, 2009.  WSIA has written extensively at the website on this topic in the September 2008 FYI,   You can attend the second conference call, of what promises to be a series     of important calls on this topic, on Wednesday, October 29, 2008.  Here's the LINK to the information regarding this call.   AS SELF-INSURED EMPLOYERS, WE STRONGLY ENCOURAGE YOUR PARTICIPATION ON THE CALL!  FOR TPA's, WE STRONGLY ENCOURAGE YOUR PARTICIPATION AND THAT OF YOUR CLIENTS ON THE CALL!  Penalties for not submitting the correct information in a timely manner are $1000 per claim per day.  For more information on this topic, including background information, check out the Centers for Medicare and Medicaid Services website at https://www.cms.hhs.gov/MandatoryInsRep/.  Employers are the ones responsible for submittal of claims information.  Even if you wish to designate your TPA as your agent for filing the claims information electronically, the EMPLOYER must go to the CMS site and sign up.  Unfortunately, the submittal form and software have not yet been developed by CMS.  Again ... this is a call you won't want to miss!   Please be aware that the October 29 conference call will NOT be about Medicare Secondary Payer or Medicare Set-Asides.  The call is ONLY about the electronic reporting of liability (including workers' compensation) claims.

Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (which took effect January 1, 2008) requires all liability and workers' compensation insurance companies, self-insureds and others to review every open claim in their office and submit a 3 page, 45-part questionnaire form for every eligible file.  Those forms are due at CMS (Center for Medicare & Medicaid) by July 1, 2009.  As required by the MMSEA, ‘‘applicable plans,’’ must: (1) Determine whether a claimant is entitled to Medicare benefits; and, if so, (2) report the identity of such claimant and provide such other information as the Secretary may require to properly coordinate Medicare benefits with respect to such insurance arrangements in the form and manner (including frequency) as the Secretary may specify after the claim is resolved through a settlement, judgment, award or other payment (regardless of whether or not there is a determination or admission of liability). The penalty for failure to timely comply is a staggering $1,000 per day, per claim! Beware, time is running out!  WSIA is attempting to work with the Department of Labor & Industries to determine whether our SIEDRS submittals could be forwarded to CMS, or whether each self-insured employer would be required to submit the data (and form for each claim).  You can find out more by going HERE.

Federal Law Will Have Impact in

Washington Regarding Medicare Benefits

While Washington state has been fairly insolated from the Medicare Secondary Payer Act, mostly due to the fact that we do not have compromise and release and cannot settle out the medical portion of our claims, a provision in a recent federal law might impact self-insurers here in Washington.  WSIA is STILL soliciting feedback from a number of sources to get an idea on how this might apply on our claims.  We await responses from the Department and from UWC, the federal organization we belong to that lobbies on workers' compensation and unemployment issues.  You can be certain we will share that information with you as soon as it becomes available.   Here's the text of their email to us:

On 12/29/2007, President Bush signed the "Medicare, Medicaid, and SCHIP Extension Act of 2007". The bill was sponsored by Senator Chuck Grassley (D-IA) and was passed in the House (12/19) and Senate (12/18) before the signing by the President. The bill passed unanimously in the Senate and 411-3 in the House. Grassley has long been an advocate for increased Medicare Secondary Payer enforcement and the passage of this bill into law has ramifications for Liability Insurance, Self Insurance, No Fault Insurance, and Workers' Compensation Insurance programs nationwide.

Of major importance to liability, self, no fault, and workers' compensation insurers is Section 111 ("Medicare Secondary Payer"), paragraph 8 ("Required Submission of Information by or on behalf of Liability Insurance (including Self-Insurance), No Fault Insurance, and Workers' Compensation Laws and Plans"), items (A)-(H). Here are a couple key sections of the law:

(A) REQUIREMENT - On or after the first day of the first calendar quarter beginning after the date that is 18 months after the date of the enactment of this paragraph (the law was passed on 12/20/07, making the following requirements begin July 1st, 2009), an applicable plan shall- (i) determine whether a claimant (including an individual whose claim is unresolved) is entitled to benefits under the program under this title on any basis; and (ii) if the claimant is determined to be so entitled, submit information described in subparagraph (B) with respect to the claimant to the Secretary in a form and manner (including frequency) specified by the Secretary.

(B) Required Information - The information described in this subparagraph is -

(i) the identity of the claimant for which the determination under subparagraph (A) was made: and

(ii) such other information as the Secretary shall specify in order to enable the Secretary to make appropriate determination concerning coordination of benefits, including any applicable recovery of claim.

(C) TIMING - Information shall be submitted under subparagraph (A)(ii) within a time specified by the Secretary after the claim is resolved through a settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).

(E) ENFORCEMENT

(i) In General - An applicable plan that fails to comply with the requirements under subparagraph (A) with respect to any claimant shall be subject to a civil money penalty of $1000 for each day of noncompliance with respect to each claimant (in addition to any other penalties prescribed by law and in addition to any other Medicare secondary payer claim under this title with respect to an individual).

What does it all mean?

Beginning on 7/1/2009; Liability Insurers, Self-Insurers, No Fault Insurers, and Workers' Compensation Insurers must determine Medicare beneficiary status on all claims and report those claims involving a Medicare beneficiary to the Secretary at the time of settlement, judgment, or award. If the reporting is not done in a timely manner, the Secretary may enforce a civil money penalty of $1000 per day per claim. Beyond the reporting requirements and financial penalties, this now provides Medicare huge amounts of previously difficult to collect primary payer data on liability, self-insured, no-fault, and WC claims which can be utilized to enforce their Secondary Payer rights. It will be very easy for Medicare to review settlements, judgments, and awards to determine if their interests were adequately considered in the settlement. Workers' Compensation has faced a similar situation (on a smaller scale) since 2002 with Medicare Set-Aside Arrangements. The scope of this law is much broader than MSAs though and adds liability and no-fault settlements into the process, with stiff financial penalties for non-compliance.

What can be expected?

The Secretary has two issues to address in this law, (1) what data to collect and (2) what timeframe to receive the information post-settlement, judgment, or award. The timing of the collection of data (post-settlement, judgment, or award) suggests that a copy of the the settlement agreement, judgment or award will be required submission to the Secretary. Since the intent is to enforce Medicare's Secondary Payer rights, it is reasonable to assume injury information, diagnosis codes, and primary payer data will be required. The language is broad enough to allow for the collection of medical information to determine if the settlement adequately protected Medicare's interest. It is likely that the timeframe will be shortly after the date of settlement, judgment, or award, but may be more frequent.

If you are a self-insured employer or TPA and have dealt with this issue in other states, please contact Dave Kaplan at dave.kaplan@wsiassn.org or by phone at 800-736-7296.  Thank you!

Department Adopts New Crane Safety Rules,

Implementation Begins January 1, 2009

The Department of Labor & Industries finalized the rules concerning Crane safety.  The rules were a required outcome from legislation that became law in 2007.  You can find the text of the new rules HERE.  The effective date of most of the rules is January 1, 2009, with some rules taking effect January 1, 2010.

New Rules Being Considered

Regarding Firefighter Safety

The Department's has announced that they will be updating the firefighting rules in accordance with "current consensus standards and practices." This rulemaking will also address a couple of issues brought to the Department's attention by the Federal Occupational Safety and Health Administration (OSHA) in order to make Washington's rules as effective as theirs.  WSIA will be tracking these proposed rules carefully, and encourages our public self-insured employers to do the same!

IIMAC to Consider Draft Treatment Guidelines

for Work-Related Carpal Tunnel Syndrome

The Industrial Insurance Medical Advisory Committee is reviewing a draft set of Treatment Guidelines for work-related Carpal Tunnel Syndrome.  You can read the draft Guidelines HERE.  Should you have any comments, please email them to Reshma Kearney at kear235@LNI.WA.GOV.  Comments received by December 1 may be incorporated in further revisions.  A final draft will be posted on the IIMAC webpage on December 19 (you can find their webpage HERE).  The final draft will also be presented at the next IIMAC meeting on January 22, 2009.  At this meeting, the public may provide oral comments and IIMAC members will vote to recommend final guideline approval or not.

Department Releases Updated

Third Party Contact Phone List

At the request of self-insured employers, the Department has provided an updated list of contacts within the Third Party Recovery Unit.  Click HERE to see the updated Phone List for the Third Party Claims Unit.

Department Reiterates Prior Policy on

Payment of LEP, Time Loss Benefits to Terminated Employees  Update

On September 4, 2008 the Department issued a memo "clarifying" when Time Loss or Loss of Earning Power was to be paid to a worker that was terminated for cause.  You can find that memo HERE.  The controversy over this issue deals with the last phrase in the memo: "Termination for cause must be for actions occurring during the light duty employment and not retroactively (i.e. the worker failed a drug test that was prior to returning to work)."  Many employers and attorneys have expressed that is not what RCW 51.32.090(4) states, and that was not the law's intent.  If you have thoughts on the Department's interpretation of this law, please email them to WSIA Executive Director Dave Kaplan at dave.kaplan@wsiassn.org.   THIS ISSUE IS NOT RESOLVED!  If you have won cases at the BIIA where you terminated the worker's employment for causes that occurred prior to the start of light duty, AND were able to terminate benefits, please email Dave Kaplan ASAP.  Thank you!

Requesting Self-Insured and

Requesting State Fund Claims Files

In response to changes in public disclosure law, the Department of Labor & Industries has changed the way they process and respond to requests for prior industrial insurance claims files.  You will need to submit TWO requests: one to Norm Voiles for information on self insured claims (faxed to 360-902-6900), and then requests for State Fund claims histories to Paula Clayton (faxed to 360-902-6970.)  If you have questions on the status of State Fund claims information requests, you can call 360-902-5656.  Most State Fund requests will be handled within 10 business days.

Department Publishes

Helpful Leave Guide

With the adoption of yet more leave laws by the Legislature, the Department of Labor & Industries has developed a table listing all of the leave laws, and what the requirements are.  You can find the leave listing table at http://www.lni.wa.gov/WorkplaceRights/files/FamilyLeaveLawsTable.pdf.  For more detailed information on each type of leave, go HERE.  Coordination of leave benefits with workers' compensation benefits will become an even bigger issue in the future, so watch the WSIA website for more information.

as of 11/17/2008