Oakes and Oakes
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Oakes and Oakes Consulting |
Industrial Safety and Workers' Compensation Services
We strongly believe that the best defense is a good offense. Prevention is cheaper than remediation - if you don't hurt them, you don't owe them. The bedrock of a good workers' compensation cost containment program is a good safety plan, including job descriptions, employee handbook, and safety manual.
INDUSTRIAL SAFETY SERVICESADA Reasonable Accommodations: Are they safe? Air Quality Analysis and Recommendations Building Modifications Dust collectors Employee Handbook Ergonomics Expert Witness Testimony Federal Regulatory Compliance: OSHA, MSHA, EPA, FAA, DOT Job Analysis Training Job Interview Coaching Job Restructuring Job Task Videotapes Machine Modifications On-site Job Analysis Training On-site Safety Training OSHA Consultation Regulatory Analysis: ADA, OSHA, EPA, FAA, DOT, MSHA Regulatory Compliance Recommendations, A - Z Safety Inspections Safety Manuals Site Inspections Time-Motion Studies Work Flow Analysis Workshops WORKERS' COMPENSATION, PERSONAL INJURY, MEDICAL MALPRACTICE Accident Reconstruction: Did it really happen that way? Arrange Medical Evaluations Arrange Psychological Evaluations Catastrophic Case Management Expert Witness Testimony Internet and Data Base Research Job Accommodations Job Modifications Job Task Analysis LHWA/FECA Medical Case Management Medical Case Management for Attorneys Review Case Management Reports Review Vocational Reports and Plans Vocational Disability Ratings Vocational Evaluation Vocational Training Plans SAFETY AND WORKERS' COMPENSATION FACTS: SOURCE: Disability Prevention Among Michigan Employers 1988-1993, Upjohn Technical Report No. 93-004, Kalamazoo, Michigan: Upjohn Institute for Employment Research, 1993. -- Research shows that roughly 50% of the costs that result from accidents depend on how the company responds to and manages injuries after they occur. This was confirmed in the pilot study conducted in Michigan and published in 1991. (1-3) -- One standard deviation better performance in SAFETY DILIGENCE was associated with 16.6 percent fewer Lost Work Day Cases in Michigan. (4-13) A one standard deviation improvement in SAFETY DILIGENCE is associated with 21 percent fewer workers' compensation claims. A 10 percent improvement in achieving SAFETY DILIGENCE translates into a 22 percent reduction in Workers' Compensation Claims per 100 employees. (4-14, 4-15) -- A one standard deviation improvement in SAFETY TRAINING was associated with a 13 percent reduction in Lost Work Day Cases in the Michigan sample. 10 percent better performance in SAFETY TRAINING is associated with a 6.5 percent reduction in Lost Work Day Cases, at the 95% confidence level. (4-13) A 10 percent improvement in SAFETY DILIGENCE is associated with a 5 percent reduction in MIOSHA recordables, a 13 percent reduction in Lost Work Day Cases, and a 22 percent reduction in Workers' Compensation Claims. (4-15) -- These results indicate that improving both SAFETY DILIGENCE and SAFETY TRAINING by one standard deviation could yield a cumulative total of 30 percent reduction. A 10 percent better performance in SAFETY DILIGENCE is associated with a 13 percent lower rated Lost Work Day Cases on average, at the 95% confidence level. (4-13) -- DISABILITY CASE MONITORING ("case management") raised Lost Work Day Case rates nearly 15 percent at the 90 percent confidence level. It was perceived as punitive in the absence of a supportive work environment. (4-17) A 10 percent improvement in DISABILITY CASE MONITORING revealed a 10 percent raise in Lost Work Day Cases. (4-18) RCI TIPS FOR ALABAMA: 1. If you don't hurt them, then you don't owe them; a comprehensive safety plan is the best investment that any business can make to reduce workers' compensation costs. 2. If an accident happens anyway, then treat injured workers fairly and really well and make every effort to assure their longevity at your business by providing real work they can do. 3. If you can't find the injured worker real work in your business, then utilize rehabilitation counseling to help them find alternative work. Consider retraining the injured worker for a new job in your business. You have to hire someone. Why not reduce your workers' compensation costs at the same time? Enlightened self-interest can be a win-win situation. (See "Temporary Duty Program Cuts Comp Costs a 'TAD'" by Kaye Schnider and Andrew Faga in Best's Review, April 1996, pp. 86-89.) http://bestreview@ambest.com/ 4. If a worker can't be salvaged through real rehabilitation (not made up jobs), then it makes more sense to work out an equitable settlement and even to help the worker sign up for Social Security Disability. Attempting to starve injured workers will alienate your other workers. They all talk to each other and it will affect business morale and productivity. NO SAFETY LIBRARY IS COMPLETE WITHOUT THIS STUDY. TO ORDER THE COMPLETE STUDY:Upjohn Institute for Employment Research 300 S. Westnedge Avenue Kalamazoo, Michigan, USA 49007 616/343-5541 ; http://www.upjohninst.org/
The Alabama Trial Lawyers' Association published this article in their Fall 1997 Journal. The original CLE notes follow the article.
Managing Unruly Case Managers in Workers' Compensation and Beyond Marilyn T. Oakes, CRC, LPC Certified Pain Practitioner Introduction and statement of the issue. Many Alabama attorneys feel plagued by insurance-sponsored case managers. Indeed, sometimes one wonders whether one is observing a case manager, a private investigator, or an outside claims adjuster. As one injured worker (IW) described her situation, "she [the case manager] put herself over the doctor and he had to do what she said." Part of the problem is that some Alabama case managers do not practice industry-standard case management. The Commission on Disability Management Specialists Certification (CDMSC), national governing body for the Certified Case Manager (CCM) certificate, formally defines case management as: ". . . a collaborative process which assesses, plans, implements, coordinates, monitors and evaluates the options and services to meet an individual's health needs, using communication and available resources to promote quality, cost effective outcomes."1 Similarly, a functional definition of case management is "a systematic approach to identifying high risk/high cost patients, assessing opportunities to coordinate care, assessing and choosing treatment options, developing treatment plans to improve quality and efficacy of care, controlling costs, and managing a patient's total care to ensure optimum outcome."2 The National Association of Rehabilitation Providers in the Private Sector (NARPPS) promulgated a case manager code of conduct, which we uploaded to our web site, http://www.oakes.org, as Addendum "A" on our Industrial Safety and Workers' Compensation Services page. (For attorneys not in the computer age, the Montgomery office of the Alabama Trial Lawyers' Association has copies of all addenda cited in this article.) All NARPPS members sign yearly agreements to follow the NARPPS code of conduct. CCMs have no such yearly obligation but must maintain concurrent certification in their respective fields, usually nursing or rehabilitation counseling, and must follow codes of conduct from coexisting certifications, such as Certified Rehabilitation Counselor (CRC). Lost or suspended coexisting license or certificate means lost CCM status.3 Until September 1996, when the Alabama Department of Industrial Relations passed a set of administrative directives,4 Alabama did not define case management. Despite the DIR administrative directives, Alabama does not regulate, license, test, or certify case managers, nor does Alabama require national certification. As a result, Alabama has many unruly case managers. Tort lawyers who aren't normally interested in workers' compensation are paying more attention to unruly case managers, in that standard rehabilitation professional liability coverage is $1 million/$3 million, and actionable abuses are legion. A second reason for tort attorney interest is that, according to attorney Allen Howell, some states, such as Colorado, permit insurance case management in non-work-related personal injury cases.5 Some attorneys believe that low workers' compensation fees preclude aggressively managing workers' compensation claims. Reality is that ignoring critical issues reduces injured worker medical services, increases risk for misdiagnoses, and further lowers attorney fees by failing to identify IWs with significant or additional problems. Attorneys often find that boundary-setting on a few cases via aggressive management contributes to easier handling in later cases, thereby improving case outcomes. The purpose of this article is to identify twelve pragmatic tips to help attorneys manage unruly case managers in Alabama workers' compensation and beyond, to reduce attorney and client stress, and to improve case outcomes. Carefully read the NARPPS case management guidelines and the Department of Industrial Relations Administrative Code sections 480-5-5-.01 to 480-5-5-.32. The DIR administrative code is on any Alabama law CD-ROM, such as Premise or WestLaw. For attorneys not in the computer age, DIR charges $35 for the administrative code book and will send advance notice of future administrative code hearings for another $12 yearly. To order, please call DIR at 1/800/528-5166. Besides the information at http://www.oakes.org and ATLA, attorneys may obtain the NARPPS case management and vocational practice guidelines by telephoning 1/508/820-8889. Briefly, DIR does not permit claims adjusters (technical reviewers) to deny medical services (presumably including physician visits) on "accepted compensable claims."6 DIR mandates a four-step review process for all denials, including detailed written records of all medical service requests and reasons for denial. The pecking order is: 1) technical reviewer, 2) first level clinical reviewer (nurse or similar), 3) medical doctor, and 4) board-certified physician in the same specialty as the service provider. The utilization review entity must maintain detailed records of precertification requests and outcomes of requests, including reasons for denied requests.7 Our summary of the DIR medical case management and utilization review administrative code is Addendum "I" on our web site. DIR lists NARPPS or similar national guidelines as the rule for case management practice and utilization review in Alabama. Assuredly, many case managers and utilization review companies appear to ignore these mandates. When considering tort litigation, the DIR-required data could establish breaches of duties owed to the injured worker. Since standard professional rehabilitation services liability policy limits are $1 million/$3 million, considerable potential for damages exists when utilization reviewers and case managers refuse to behave honorably. Although a good case manager can be invaluable, by observation, utilization review entities and case managers perpetrate a host of actionable behaviors . NEVER accept any case manager intervention without making someone identify its legal basis. No statutory authority exists for Alabama workers' compensation case management, though statutory authority exists for utilization review.8 The only regulatory authority is the DIR administrative code, and it raises more questions than it answers. For example, does the DIR administrative code effectively repeal City of Auburn v. Brown 638 So2d 1339 (Ala.Civ.App. 1993)? The DIR code states "since medical case management is an integral component of a utilization management program, it shall, at the discretion of the employer/agent, be used as a component in the physical rehabilitation of the injured worker. The overall goal of medical case management is to facilitate the organizing and sequencing of appropriate health care services. This shall be done in the most cost effective manner without compromising quality of care in order to promote optimal outcomes for all parties involved."9 Does the employer/agent, the authorized physician, or the case manager decide the "components of physical rehabilitation"? In disputed services, who is in charge, the physician, the case manager or the employer/agent? Who decides what is appropriate? How do case managers contribute to "optimal outcomes"? Whose definition of optimal? If medical case management is part of the "physical rehabilitation", then what specific "physical rehabilitation" roles do case managers play? What physical rehabilitation tasks do case managers perform? Medical case management is primarily administrative, using problem-solving techniques and medical information, a job that may be done by individuals from a variety of academic backgrounds, including rehabilitation counseling, nursing, physical therapy, occupational therapy, medical psychology, or medical social work. Surely, DIR doesn't intend a medical social worker or a rehabilitation counselor to administer injections, hang IV bags, or render hands-on therapy? Has DIR confused home health nursing with medical case management? DIR code states, "Nothing in these rules, including an employer's contracting with an outside vendor for bill screening and/or utilization review, is intended to alter the employer's rights, immunities and remedies under the Alabama Workers' Compensation Law. Nothing in these rules shall be construed as to create any cause of action."10 What about employees' rights as defined by the Code and the appeals courts? The questions noted above need the attention of the appeals courts. Case managers may seem to dictate terms of treatment, but they do so without statutory or regulatory authority, case law, Code of Alabama 25-5-1 et. seq. (the Workers' Compensation Act), or any other law. The DIR administrative code defines medical case management as "the process of assessing, planning, implementing, coordinating, monitoring and evaluating the services required to respond to an employee's health care needs to attain the goals of quality and cost effective care. Case management is not intended as a substitute for utilization review and medical necessity determinations under these rules and case managers are not permitted to deviate from or alter a medical regimen ordered by a treating physician."11 Unless an IW or his attorney give permission, a case manager has no rights in a workers' compensation case. When attorneys strictly limit case manager activity (e.g., no access to medical records and no contact with the client, the physician, other medical providers and no right to direct or interfere with treatment), case managers can work little mischief. When case managers may no longer act as outside claims adjusters, typically, claims adjusters close the case management files. We include an example of a nurse case manager's initial letter and an attorney's response as Addenda "B-1" and "B-2" on our web site. If the case manager claims special rights because she works for the employer/insurer, then attorneys should ask themselves if they would permit special rights to a claims adjuster. Please see comments, below, on conflict of interest, independent professional duty, City of Auburn v. Brown and Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996). Until the Alabama appeals courts say differently, prudence dictates that attorneys should not grant special rights to case managers employed by insurance companies or third party administrators. Determine whether an action is based on the written law or the oral tradition. What case managers and claims adjusters tell physicians and attorneys often varies greatly from statutory and case law requirements. Especially with vocational services (e.g., job placement, job analysis, alternative light duty, accommodated work, vocational training, or job modifications), attorneys must be cautious. Attorneys should carefully scrutinize case managers' credentials when case managers seek to perform vocational services. Code of Alabama 25-5-77(c) defines vocational specialist as "qualified to render competent vocational rehabilitation service." Code of Alabama 34-8A-1 et. seq. defines minimum vocational rehabilitation provider requirements (Licensed Professional Counselor) and does not permit non-LPCs to render vocational services for a fee. Code of Alabama 25-5-77(d) requires IWs to cooperate with vocational rehabilitation. The most qualified vocational service provider will hold an LPC, a master's degree from a Commission on Rehabilitation Education-accredited graduate program, and be a Certified Rehabilitation Counselor (CRC) or a Certified Vocational Evaluator (CVE). Statewide, only Auburn University, the University of Alabama, the University of Alabama-Birmingham, and the University of South Alabama offer CORE-accredited degrees. Non-LPCs rendering vocational services is analogous to non-lawyers practicing law. Courts do not permit lawyers to practice without graduating law school and passing the bar. How can someone render "competent vocational service" without an accredited rehabilitation degree and a relevant state counseling license? No direct statutory obligation exists toward case managers. Case management, utilization review, and vocational rehabilitation are distinct entities. Non-LPC case managers cannot legally provide vocational services. Rehabilitation counselors may be case managers but nurses, physical therapists, and occupational therapists may not provide vocational services without being Licensed Professional Counselors under Code of Alabama 34-8A-1 et. seq. We summarize Alabama code definitions for LPC, physical therapists, occupational therapists, and registered nurses in Addendum "C" on our web site. Please notice 34-8A-2(e)(1) and -2(e)(2), discussions of occupational and career concerns. When putative vocational providers lack proper qualifications (LPC and CRC or CVE), attorneys should revoke all medical authorizations and forbid contact with IWs. Demand a legal basis for benefits termination. Strictly speaking, a claims adjuster cannot terminate benefits because an IW wants to exclude outside parties from the patient-physician relationship. However, an uninformed or ill-tempered claims adjuster may threaten retaliation or even terminate benefits. Some claims adjusters, via their attorneys, have recently used the DIR administrative code to threaten benefits termination, claiming that IWs have refused medical care by refusing case management. Again, what medical care? Case management and utilization review are not physical medicine or physical rehabilitation services. Indeed, the NARPPS case management guidelines recognize that case managers do not have free access to the IW. Quoting from the Evaluation/Assessment section, ". . .the following points should be addressed in any evaluation: obtain necessary release to contact the injured/ill client, significant other and attorney, if applicable, for an initial interview/contact." Quoting from the Closure section, "Medical case managers recognize that services may terminate at any point in the rehabilitation process. There are several situations that may result in either a successful or unsuccessful resolution to closure. At least one of the following situations should exist prior to case closure: . . .services discontinued by client or by client's authorized representative."12 The attorney has several choices: 1) Negotiate. The claims adjuster must provide legal authority to terminate or suspend benefits. We have a sample letter ("Addendum D") on our web site, written by attorney Bill Abell, when a claims adjuster suspended benefits after the IW attended an independent medical examination. Addendum "E" on our web site is a series of letters another attorney wrote, also illustrating the process. Code of Alabama 25-5-77(b) provides only the employer and employee statutory access to medical records. Code 25-5-1(4) includes insurance companies or service companies standing for the employer. Even so, case law protects the right of authorized physicians to direct medical care. (See City of Auburn) Attorneys should require outside parties to define their authority for acting in workers' compensation cases without permission from the IW or his legal representative, just as for any other medical patient. The claims adjuster can terminate workers' compensation benefits for only three reasons: The IW reached maximum medical benefit. The IW unreasonably refused medical treatment or examination,13, 14 The IW refused vocational rehabilitation without a court order.15, 16 If the claims adjuster alleges that the case manager provides medical treatment, then the attorney should do two things: Ask the claims adjuster or case manager to write a list of medical treatments that the case manager provides, which physician directly employs the case manager to provide the treatments, and the legal basis for the treatments. Most likely, the case manager doesn't work for the authorized treating physician (or any physician) and provides no medical treatments. If the IW requires nursing services, then a home health nurse is appropriate. Home health nursing services aren't typical case management duties. 3) Remind the claims adjuster that Code of Alabama 25-5-77(b) identifies physicians, surgeons, and chiropractors as authorized treating physicians. If physical therapists are not physicians,17 then case managers certainly can't be physicians. Are case managers who override physicians practicing medicine without a license? Can anyone else direct medical treatment without being a physician or having a physician's order? File suit and send the defense lawyer a copy of City of Auburn. If employers cannot dictate authorized medical care, then how can case managers? Petition the Court for emergency relief, using City of Auburn and the beneficent basis of workers' compensation as key arguments. Attorney Bill Abell has used emergency relief to level the playing field. If emergency relief isn't an option, then consider whether the IW can be fast-tracked through Social Security Disability. Social Security Disability benefits level the playing field by providing income independent of the claims adjuster's whims. Detailed discussion of fast-tracking a Social Security Disability claim is beyond the scope of this article, but please contact the author at 205/967-9798 for more information. [Caution: A Social Security application itself may preclude wrongful discharge litigation, so attorneys must make risk-benefit decisions before initiating Social Security applications.]18, 19 Some attorneys say emergency hearings aren't options in their counties, because local judges don't favor emergency hearings. When that is the case, attorneys in those counties should carefully select appropriate cases, file for emergency hearings, and then take the cases to the appeals courts. The threat of benefits suspension perpetrates many workers' compensation abuses. While all attorneys owe primary duty to individual clients, many IWs support dealing with larger issues when someone explains the pervasive nature of the larger issues. Some workers express relief when they learn that they haven't done anything wrong, and that many people experience the same abuses. Guaranteed access to emergency relief, via case law, would level the playing field for all IWs. Cultivate a good working relationship with the authorized treating physician. Attorneys and physicians are not always natural allies, but insurance case managers have made it so. Physicians are generally surprised, but pleased, at the attorney's help. Some physicians later refer patients for legal assistance, when they feel patients have been treated unfairly. Many physicians are as displeased with insurance-sponsored case manager interference as are IWs and their attorneys. Some attorneys hire an experienced independent case manager for strategic interventions and help fostering physician relationships. Counseling skills enhance case manager advocacy. If the IW is pleased with his authorized treating physician, then write a nice letter to the physician. Send him a copy of City of Auburn and express support for his right to direct the IW's care. If the IW is not happy with his authorized treating physician, then ask for a panel of four board-certified physicians. Asking for four board-certified physicians in the same medical specialty makes it harder for the claims adjuster or case manager to manipulate the panel. After choosing a new physician, write him a nice letter with City of Auburn attached and assure him of continued support. If IW is not happy with his authorized treating physician and he has already exhausted his panel of four physicians, then hire an experienced case manager to help mend fences and forge a more positive working relationship. If the IW can't get along with the authorized treating physician and the fences can't be mended, then an experienced case manager may still help resolve the case. Few attorneys understand that no such entity as a "company doctor" exists if one knows what questions to ask. Skilled case managers can often identify the questions more efficiently than attorneys. Identify professional orientation and philosophy. For attorneys inclined to give insurance case managers a chance (not a recommended course unless Alabama conditions improve), then a questionnaire can help identify professional training, motivation and ethical orientation. Addendum "F" on our web site is a questionnaire attorney Allen Woodard uses for vocational counselors. Attorneys may similarly adapt a case manager questionnaire, using the NARPPS case management guidelines. The NARPPS standards are quite good, and ethical practitioners won't mind questions. Ask case managers to submit their codes of ethics and standards of practice, including state nursing or counselor licensure. Ask case managers to list published case management texts they favor, e.g., would they agree that A Guide to Rehabilitation by Deutsch and Sawyer is an authoritative publication? Once they submit a list of credible authorities, hold them to the standards. Identify the chain of command and collect all case management documents. Nationally, private sector rehabilitation is an estimated $4 billion yearly business. Many insurance companies and third party administrators own rehabilitation and case management companies, blurring the line between worker services and claims adjusting. Insurance companies and third party administrators owning rehabilitation companies or directly employing case managers create potentially huge conflicts of interest, issues not yet addressed in Alabama courts. Attorneys should always know who owns the case management company, the entire chain of command, and who makes final case management decisions. Claims adjusters' goals are often incompatible with good case management and rehabilitation practice. A case manager can't force a claims adjuster to act in the best interests of the IW, but must nevertheless advocate the needs and rights of the disabled person. Case managers are rarely the final decision-makers, and in event of conflict, should have meticulous notes answering the "journalism" questions - who, where, what, when, why, and how much money. Case management notes can be revealing, especially when tort claims arise. What is not documented is often as telling as the documentation. In large companies, case managers are usually the end of a long chain of command. One should not be surprised to find claims adjusters supervising case managers. After collecting the documents, ask the case manager to explain any irregularities, in writing, then ask her for a letter stating that she will put the needs and rights of the IW first. Ask if she will advocate services for IW? Ask her when rehabilitation goals conflict with claims goals, will she consider the needs and rights of the IW or the goals of the claims adjuster and her own job security? Her response will probably reveal everything an attorney needs to know. Remind case managers that they owe independent professional duties to IWs. Standard rehabilitation ethics dictate that the disabled worker is always the client, no matter who pays the bills. Ask the case manager to file a detailed management plan for attorney inspection and approval. Even when working directly for the employer/insurer, case managers have an independent duty to IWs, separate and apart from employers. A plant nurse in Iowa rediscovered her duty the hard way. The jury awarded $15 million, which the Iowa Supreme Court reduced to $2 million. The Iowa Supreme Court held that "(1) employee's claims for breach of fiduciary duty and defamation fell outside the scope of remedies available under Workers' Compensation Act and district court could properly exercise jurisdiction, (2) jury question existed as to whether fiduciary relationship existed between employee and nurse, (3) jury question existed as to whether nurse's statements to physician were slanderous per se, (4) evidence supported general verdict to $4,000 as compensatory damages on defamation claim, (5) 'substantial truth' defense was not applicable, (6) substantial evidence support submission of punitive damage claim to jury; and (7) punitive damage award of $15 million was excessive, but award of $2 million was supported by record."20 Mr. Wilson hurt his back while working for IBP, a self-insured company. Diane Arndt, a registered nurse at IBP, managed occupational health services at the Council Bluffs plant. She coordinated workers' medical care, treatment and recovery, including overseeing work restrictions, monitoring conditions, making doctor's appointments and overseeing OSHA logs. The Iowa Supreme Court found that Mr. Wilson's claims against the company for breach of fiduciary duty and defamation, that arose from Ms. Arndt's statement to the authorized treating physician implying that Mr. Wilson faked his on-the-job back injury, fell outside the scope of remedies available under the workers' compensation act. Exclusive jurisdiction of the workers' compensation industrial commission did not apply and the court had proper subject matter jurisdiction.21 Iowa case law has no direct bearing on Alabama, but the arguments that persuaded the Iowa courts describe many case management abuses in Alabama. Case managers, whether nurses or rehabilitation counselors, have independent professional duties to IWs, separate and apart from duties to employers. Discover case management files and institute continuing discovery of any future paperwork. Case managers may resist file production, but files can be revealing. Attorney Max Cassady writes standard letters forbidding contact with his clients, then gives the choice of surrendering the files or facing litigation.22 Physician correspondence files may be excellent sources for case manager discovery. Medical records clerks usually send clinic notes, while overlooking correspondence in discovery requests. One law firm reportedly discovered case management letters pressuring doctors to make detrimental decisions about workers, after case managers said they didn't have any documents to produce. Consider hiring a skilled, ethical case manager. Especially if the medical aspects are catastrophic (e.g., brain injury, spinal cord injury) or complicated (e.g., chronic pain, mental illness combined with physical injury), a case manager can streamline attorney management. A counselor-case manager can also help attorneys communicate more effectively with cranky patients and their families. A life care planner can often do double duty managing cases, and a life care plan is an excellent means to quantify damages in tort cases. A good case manager can help establish and clarify the medical baseline, manage family concerns, organize and arrange medical services, locate tax-funded resources to supplement insurance coverage, translate doctor-to-lawyer and lawyer-to-doctor, obtain medical orders for insurance-sponsored care, and clarify complex medical issues. Insurance companies and third party administrators spend thousands on routine case management, but often, such activity is unnecessary and provides nothing that the IW can't do for himself. A skilled case manager can force accountability, usually with a few strategic telephone calls and an occasional pertinent letter. Good independent case managers can greatly assist attorneys. Use existing national standards of practice and codes of ethics. Most case managers have a string of initials after their names, and most of the initials signify standards of practice and codes of ethics. First identify the initials, then get the standards from the relevant board. Besides NARPPS, the Alabama Nursing Board and the American Nursing Association have standards for Registered Nurses. Physical Therapists and Occupational Therapists have state and national boards. Yet another board governs Certified Rehabilitation Registered Nurses (CRRN). Other groups with written standards include the Alabama Board of Examiners in Counseling (LPCs), the Commission on Rehabilitation Counselor Certification (CRCs), the Commission on Disability Management Specialist Certification for Certified Disability Management Specialists, and the Vocational Evaluation and Work Adjustment Association (CVEs). All these standards provide fodder for scrutiny, discovery, cross-examination and, potentially, tort claims. File complaints with the Department of Industrial Relations against bad utilization review entities and their case managers; file for relief in circuit court, per DIR administrative rule 480-5-5-.23. Many IWs have trouble getting medical services provided in approved compensable claims. Although case managers aren't individually certified, utilization review entities must register with the Department of Industrial Relations and are, at least theoretically, subject to DIR denial or revokation of their utilization review standing. While some attorneys do not trust DIR to take aggressive action, an appropriate use of DIR rules is to compile statistical data that dozens (hundreds?) of workers have filed hundreds (thousands?) of complaints. Such detailed statistical data would be impressive evidence in a tort case. DIR-recorded complaints help establish the pattern and practice of utilization review entities' business habits. Until all utilization reviewers behave honorably, attorneys should aggressively enforce utilization review guidelines and require utilization review entities and their case managers to justify every medical services denial. When attorney Max Cassady filed for emergency relief and wrote a lengthy brief, the defendant approved a disputed pain pump less than 24 hours later, after months of denial. Attorney David Vickers has successfully obtained court orders for panels of four board-certified hand surgeons, instead of generic orthopedic surgeons, for repetitive motion trauma cases. Attorney Doug Fields has overcome defendant motions for summary judgment in outrageous conduct cases, when medical services have been delayed or denied. Attorney John Smith has a "City of Auburn" letter that he sends claims adjusters who deny follow-up medical appointments. Sometimes the first step in obtaining appropriate medical services is letting insurance personnel know that one knows the rules, then letting them know that one means business. When case manager wrongdoing is extreme, consider tort litigation. Thwarting medical care is a destructive case manager practice, often done by using ill- or inaccurately-defined code words. Frequently misused words include psychogenic pain, malingerer, symptom magnification, psychological overlay, and subjective symptoms. Attorneys should be wary of case managers who use code words to thwart diagnostic investigation and medical care. Psychogenic pain is rare and tends to be overdiagnosed.23 Malingering is a psychiatric diagnosis and requires "intentional production of false or grossly exaggerated symptoms."24 Subconscious symptom production and psychological problems (e.g., depression or anxiety) are not malingering, nor is somatization, because none of these conditions include intentional symptom production. Symptom magnification and psychological overlay are not formally defined in medical, psychiatric, or psychological literature and lack formal scientific bases. About 5% of chronic pain patients are malingerers, according to pain research data.25 In science, subjective means that the phenomena cannot be measured directly. Besides pain, other subjective constructs include depression, anxiety, IQ, and love. No one doubts their existence or claims that one is defective because one cannot be plugged into a machine and see the construct printed out. To combat code words, put case managers under oath, ask them to define the code words, then ask them how their definitions compare to formal definitions. Doing so helps eliminate code words, and also illustrates actionable behavior. A similar strategy works well with physicians who are unfamiliar with differences between/among acute medical care, chronic pain management, and formal definitions. Deposing physicians is beyond the scope of this article. Case manager practices vary from concerned to abusive. Tort lawyers will, no doubt, find workers' compensation case management increasingly interesting. Besides case managers, potentially-actionable behavior occurs among rehabilitation counselors and functional capacities evaluators. For example, during discovery in a federal court case, attorney John Smith found an FCE therapist's lengthy computer form. The FCE therapist had a computer macro that asserted symptom magnification and submaximal effort, before she conducted any evaluation or saw any patient. When defining breaches of duty in tort claims, Alabama attorneys may find helpful the DIR administrative code, existing codes of ethics and published standards of practice. Additionally, the Alabama workers' compensation code has "beneficent purposes,"26 a concept seemingly unknown among many Alabama case managers. A common case manager strategy, especially in complex cases such as chronic pain, is to stymie the doctors' treatment efforts by refusing medical services, frustrate diagnostic attempts by denying tests, obtain a full work slip for a light duty job (a very different matter than a work slip for full duty work), and quickly report back to the claims adjuster so that the adjuster can terminate weekly benefits. The attorney never files suit, because he thinks IW lacks permanent limitations and a basis to sue. Nobody ever asks the doctor what limitations he would have placed (light duty), had he been asked. Case management companies often claim credit for medical savings and positive case outcomes.27 In such a situation, the reality is often that the worker prematurely lost his benefits, got assigned an inappropriate job that disappeared when the lawyers finished, and worst of all, didn't get needed tests and medical care. Complex patients especially suffer from inadequate diagnosis and treatment. In a study of 60 chronic pain patients, the Mensana Pain Clinic and Johns Hopkins University Medical Center, found that the group required an additional 276 medical tests before physicians could reach a diagnosis. Seventy percent of the new tests showed abnormal findings. Upon referral, 66.7% of the patients had incorrect diagnoses, of which 41% were vague descriptors such as "failed back syndrome", "chronic pain", "psychogenic pain" or "muscle strain" instead of medical diagnoses. Remarkably, 50% of the 60 patients needed additional surgery.28 One wonders if Alabama injured workers fare better? The Mensana study did not mention case managers, but by observation, one must wonder if case manager interference contributed to the problems. Case manager professional liability policy limits are $1 million/$3 million, and Wilson v. IBP and Arndt et. al. is the tip of the iceberg. Of the Alabama rehabilitation tort-related cases (all litigated through the appeals process before DIR passed the administrative code discussed earlier), four defendant case managers won on summary judgment and one defendant rehabilitation counselor lost at trial, resulting in a $155,000 jury award. In a federal case originating in Georgia, the jury awarded $261,400 for negligent job description and malpractice. Several case manager suits have been settled and sealed. (See Addendum "G" on our web site.) Case management litigation is problematic, because many case managers and claims adjusters communicate by metaphorical winks and nods. However, a skilled case manager can help with discovery, strategy, and trial preparation. Detailed discussion of rehabilitation-related torts is beyond the scope of this article. Please contact the author at 205/967-9798 for more information. Summary. His Holiness Leo XIII wrote, "The condition of workers is a subject of bitter controversy at the present time; and whether this controversy is resolved in accordance with reason or otherwise, is in either event of utmost importance to the State. . . For, no matter how strong the power of prejudice and passion in man, yet, unless perversity of will has deadened the sense of the right and just, the good will of citizens is certain to be more freely inclined toward those whom they learn to know as industrious and temperate, and who clearly place justice before profit and conscientious observance of duty before all else." Alabama case managers, proving that "perversity of will" operates as much today as in 1891, often create intolerable situations. Case managers who neglect the needs and rights of IWs and ignore the DIR administrative code, existing standards of practice, case law, and professional ethics fail in the conscientious observance of their duty. However, by taking a few steps to manage the unruly case managers, Alabama attorneys can reduce stress to clients, increase access to medical care, and improve case outcomes. Alabama attorneys may take limiting steps with rehabilitation counselors and functional capacities evaluators, but those suggestions are beyond the scope of this article. ENDNOTES Mullahy, Catherine, The Case Manager's Handbook, Gaithersburg, MD: Aspen Publications, 1995, p. 9. Foundation for Rehabilitation Certification, Education and Research, Case Management Practice, Rolling Meadows, Illinois: 1993, p. 4. Commission on Disability Management Specialist Certification, CCM Certification Guide with Application, Rev. 1995, Rolling Meadows, Illinois: Author, 1995, pp. 2-9. Alabama Department of Industrial Relations Administrative Code, 480-5-5-.01 to 480-5-5-.32. Howell, Allen W. Personal communication, June 10, 1997. Department of Industrial Relations Administrative Code 480-5-5-.06(1)(a). Department of Industrial Relations Administrative Code 480-5-5-.08(5). Code of Alabama 25-5-293(k). Department of Industrial Relations Administrative Code 480-5-5-.29(2). Department of Industrial Relations Administrative Code 480-5-5-.01(4). Department of Industrial Relations Administrative Code 480-5-5-.02(40). National Association of Rehabilitation Professions in the Private Sector 1997 National Directory, "Standards and Ethics," Framingham, Massachussetts: author, 1997, pp. xviii, xix. Code of Alabama 25-5-77(b). Alabama Department of Industrial Relations, Alabama Workers' Compensation Law Annotated, 1994 edition, Charlottesville, Virginia: The Michie Company, 1995, pp. 145-146. Code of Alabama 25-5-57(a)(4)(d) Code of Alabama 25-5-77(d). Interstate Truck Leasing v. Bryan, 537 So.2d 53 (Ala.Civ.App. 1988). Watwood v. White Consolidated Industries, Inc. d/b/a Americold Compressor Corporation, et. al. 6 ALW 6-11, released 6-20-97. Consolidated Stores, Inc. v. Gargis, 686 So2d 268 (Ala.Civ.App.1996). Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996). Wilson v. IBP, op cit. Cassady, Max. "Deposing Carrier Physicians in Workers' Compensation Cases: Using Reference Works to Reduce the Physician's Bias In Favor of the Defense." Lecture delivered at Crested Butte ATLA seminar, November 1995. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, fourth edition, Washington, DC: author, 1994, p. 683. Hendler, N.H. and J. G. Kozikowski, "Overlooked Physical Diagnoses in Chronic Pain Patients Involved in Litigation," Psychosomatics, Vol. 4, No. 6, pp. 494-501. Chapman, S.L. and Brena, S.F., "Pain and litigation." In: P.D. Wall and R. Melzack (Eds.), Textbook of Pain, Churchill Livingstone, Edinburgh, 1989, cited in Fields, H. L. (Ed.) Core Curriculum for Professional Education in Pain, second edition, Seattle: IASP press, 1995, reprint 1997, p. 106. Alabama Department of Industrial Relations, Alabama Workers' Compensation Law Annotated, 1994 edition, Charlottesville, Virginia: The Michie Company, 1995, p. 14. "The workmen's compensation laws are remedial in nature and are to be liberally construed and applied in order to effect their beneficent purposes." Hilyard Drilling Co. v. Janes, 463 So.2d 942 (Ala.Civ.App. 1985); Middleton v. Dan River, Inc., 617 F. Supp. 1206 (M.D. Ala. 1985), modified, 834 F. 2d 903 (11th Cir. 1987). University of Florida Rehabilitation Training Institute, Advanced Catastrophic Management, lecture notes, August 15, 1996. Hendler, op. cit. Leo XIII, Rerum Novarum (On the Condition of the Working Classes), Rome: Vatican Press, 1891, reprinted in Boston: Daughters of St. Paul, 1942. Marilyn Tuck Oakes is a rehabilitation counselor, medical case manager, and life care planner in Birmingham, Alabama. She practices with Barry L. Oakes, industrial safety consultant and accident reconstructionist. She attended the University of Kentucky and graduated from Peabody College at Vanderbilt University and the University of Alabama-Birmingham. She is a Certified Rehabilitation Counselor, a Licensed Professional Counselor and a Certified Pain Practitioner. She has written and lectured for state, national and international professional groups ADDENDUM "A" NATIONAL ASSOCIATION OF REHABILITATION PROFESSIONALS IN THE PRIVATE SECTOR (NARPPS) Standards and Ethics PREAMBLE NARPPS members recognize the uniqueness of the private rehabilitation field. The conduct of members of a professional organization must be ethical at all times. NARPPS recognizes the free enterprise system and believes that fair competition encourages the development of quality services to both the client and referral source. PROFESSIONAL CONDUCT BY DISCIPLINE The member is obligated to maintain technical competency at such a level that the recipient receives that highest quality of services that the member's discipline is capable of offering. The implementation of a rehabilitation plan for a client is a multidisciplinary effort. NARPPS members will conduct themselves in interdisciplinary relationships in such a way as to facilitate the contribution of all specialists involved for maximum benefit of the recipient of services and to bring credit to each discipline. MINIMAL STANDARDS FOR SERVICE DELIVERY Standards shall apply to those persons who are providing the services. The services and submission of reports shall be provided in a timely fashion and shall respond to the purpose of the referral and include recommendations, if appropriate. All reports shall reflect an objective, independent opinion based on factual determinations within the provider's area of expertise and discipline. The reports of services and findings shall be distributed to appropriate parties and in compliance with all applicable legal regulations. The member shall render only those services that the member is competent and qualified to perform. The member has an obligation to withdraw from a professional relationship if it is believed that the participation will result in violation of the ethical standards of his/her professional discipline. There shall be a stated rationale for the provision of services to be rendered to the client in the form of an identified objective or purpose. The member shall refuse to participate in practices which are inconsistent with the standards established by regulatory bodies regarding the delivery of services to clients. Members will adhere to all tenets of confidentiality. At the time of the initial referral, the member has the responsibility for identifying to the referral source and to the client what services are to be provided and practices to be conducted. This shall include the identification, as well as the clarification, of services that are available by that member. PRIMARY CARE VOCATIONAL SERVICE DELIVERY STANDARDS NARPPS members recognize the uniqueness of providing Private Sector Vocational Rehabilitation Services under various federal and state laws and insurance coverages. However, there remain broad service standards that should be applied regardless of this uniqueness. Primary Care Vocational Rehabilitation Services are those vocational services provided directly to a client, the goal of which is to return a client to suitable gainful employment. The following standards are criteria against which Primary Care Vocational Rehabilitation Services can be measured. NARPPS members will adhere to these Service Standards unless such adherence is contraindicated by laws, regulations, or client needs. A. Referral There are certain standards that should be met before a client is accepted for vocational service. The following minimal information should accompany a referral for service. 1. Client identifying data. 2. All pertinent medical and medically related data. 3. Purpose of referral. 4. Referrer Special Instructions for service, if any. Rehabilitation practitioners may also refer to outside vendors or other Practitioners. The same minimal information should be provided with special emphasis given to purpose of referral and special requests for service. B. Vocational Evaluation The first step in the vocational rehabilitation process is evaluation. Depending upon the purpose of the referral, the Rehabilitation Practitioner may emphasize various elements of the evaluation; however, the following points should be addressed in any written evaluation: 1. Statement of purpose for, and conditions under which, evaluation occurred. 2. Brief summary of referral records 3. Client's medical status including history of current injury/illness, description of functional limitations and abilities, previous significant medical history, current medical care including identification of treating physician(s). 4. Schedule of Physician/Therapist appointments pending. 5. Client's vocational history including skills, wages, working conditions, reasons for leaving, and reemployment potential and possibilities. DOT numbers are required for all job titles used in the work history and reemployment possibility sections. 6. Client's education and specialized training, whether formal or informal. 7. Client's interest(s), reading skills, intelligence, academic achievement, primary aptitudes, and transferable skills. 8. Summary of data with emphasis on client's assets and limitation, with recommendations to facilitate the purpose of referral. C. Plan Development Rehabilitation Practitioners may write a myriad of vocational plans depending upon coverage, jurisdiction, purpose
of referral, etc. However, NARPPS members recognize that there are certain plan standards that should be met whenever
a written plan is developed. 1. The client should be an active participant within his/her physical/mental capacity in the plan development. 2. When a plan is written, all interested parties should agree before its implementation. 3. The plan should be signed by the client and/or his/her representative and the Rehabilitation Practitioner. 4. The plan should identify clearly stated goal(s) with action(s) directed towards achieving this goal(s). 5. The plan should identify all parties' responsibilities, the action steps for which they are responsible (including fiscal) and the time frames for completion. 6. A rationale for the plan, integrating the elements of the evaluation, should be included. 7. The criteria for completion, termination, or suspension should be clearly delineated. D. Job Development and Placement Job development is the activity by which a client begins the placement process. Job placement is the goal of job development. Taken together, their goal is finding the placing a client into suitable, gainful employment. The following standards should be met by Rehabilitation Practitioners who provide job development and placement services: 1. Confirmation of the client's job readiness and general readiness for employment. 2. Obtain client agreement to actively participate in the job-seeking process. 3. Assure the presence of client job-seeking and job-holding skills. 4. Identify client's transferable skills. 5. Document appropriateness of prospective jobs as they relate to client skills and limitations. 6. Inform prospective employers of client skills and limitations. 7. Assist employer in complying with various requirements for immigration, job tax credits, second injury funds, etc. 8. Monitor client job adjustment and progress, as needed to insure appropriate work adjustment. Rehab Practitioners recognize that one of the surest methods of obtaining both vocational training and successful job placement is through the use of an on-the-job training program. The following requirements should be met when providing an on-the-job training service. 1. Written agreement outlining time frames and responsibilities of all parties. 2. Identification of skills to be learned. 3. Confirmation that client will treated as an "employee" with the same benefits as all other employee. 4. Affirmation that client will perform as a reliable employee without expecting undue privileges. 5. Terms of payment to employer. 6. Terms of compensation to the client. 7. Conditions under which agreement is to be completed and/or terminated including any agreement by employer to hire the client. E. Report Writing and Recordkeeping Rehabilitation Practitioners understand that reporting requirement differ between referral sources and jurisdictions. Some referral sources demand frequent written reports while others require less frequency. Therefore, the frequency of reporting to the referral source should be determined at referral and compliance should be consistent with that determination. Regardless of reporting frequency, there are certain record keeping standards to which adherence is required. The following records, when they exist, should be in the file at all times: 1. Written evaluation. 2. Written plan. 3. Written closure report. 4. Written agreements such as the on-the-job training, training, release of client records, responsibilities, etc. 5. Medical/psychological reports. 6. Correspondence between interested parties. 7. Regulatory orders affecting or relating to the client. Client records should be secured to insure confidentiality and should not be disclosed without client authorization or legal requirement. Records should be maintained for the number of years after closure that is consistent with jurisdictional requirements. After that time, they should be destroyed in a manner assuring preservation of confidentiality. F. Closure Rehabilitation Practitioners recognize that services may terminate at any point in the vocational rehabilitation process. There are several situations that may result in either a successful or unsuccessful resolution to rehabilitation. At least one of the following situations should exist before closing a file: 1. Rehabilitation goals have been achieved. 2. Further services will most probably not result in client's improvement. 3. Services have been declined by client or authorized representative. 4. Client is no longer available for services. 5. Administrative terminations including case settlement, policy limits exhausted, regulatory directives third party payor termination, etc. Once any of the above situations has occurred, the Rehabilitation Practitioner should document the justification for rehabilitation closure as follows: 1. Document follow-up activities supporting the achievement of goals. 2. Document results of evaluation supporting the improbability of client improvement. 3. Document lack of client interest, declination, or non-availability. 4. Document the unavailability of rehabilitation funding. 5. Document administrative terminations. Upon closure, if the Rehabilitation Professional is aware of client needs which may be met by community resources/similar benefits, they should refer the client to these resources. NARPPS members recognize that there will be occasions when disputes occur between parties involved in the vocational
rehabilitation process. It is the Rehabilitation Practitioner's responsibility to assist in resolving these disputes
as quickly as possible. The following services may be provided by the Rehabilitation Practitioner in resolving
these disputes: 1. Written definition of the dispute. 2. Written definition of the positions taken by each of the interested parties in the dispute. 3. Informal attempt at dispute resolution. 4. Formal attempt, including conferences, administrative hearings and other regulatory assistance. 5. Written statement of resolution outlining responsibilities of all interested parties. PROFESSIONAL PERFORMANCE CRITERIA FOR MEDICAL CASE MANAGEMENT Preamble Medical Case Management is defined as the process of assessing, planning, coordinating, monitoring and evaluation of the services required to respond to an individual's health care needs to attain the goals of quality and cost effective care. This service may be performed in conjunction with Managed Care; however, it is differentiated from Managed Care, which is recognized as an organized process designed to ensure the medical necessity and cost effectiveness of a proposed service. Case Management is designated to promote optimal recovery and rehabilitation by professional involvement in the rehabilitation process. Medical Case Management in the optimum sense is a balance in terms of both quality assurance and medical cost control. The process of Medical Case Management is most effective when the following occurs: - Time identification of clients (ideally at the onset of an injury/illness) for assessment. - Referral to a Medical Case Manager with expertise, demonstrated by education, experience, licensure and/or certification, is recommended during the critical and acute stages of catastrophic injury. Such Medical Case Manager should have clinical assessment skills with a broad range of medical diagnosis/impairments for optimal results. Specific credentials, such as, but not limited to CRRN, RN CIRS, or CRC may demonstrate that an individual has professional experience and expertise. - Jurisdictional requirements for licensed medical professionals supersede Medical Case Management standards - Assessment by the Medical Case Manager to determine the client's strengths, problems, prognosis, functional status, goals and need for specific services/resources, and to establish short-term and long-term goals. - Development of a plant, when indicated, through interdisciplinary collaboration which identifies options and goals - Identification, procure and coordination of services and resources necessary to implement the individual's plan. - Provision of ongoing evaluation of the individual's progress, effectiveness of the rehabilitation plan, as well as, the efficacy and appropriateness of the services provided. - Advocacy on behalf of the individual to assure quality of care and attainment of appropriate goals - Promotion of the individual's self-advocacy skills to achieve maximum self-sufficiency. The overall goal of Medical Case Management is to facilitate the organization and sequencing of appropriate
health care services. This is done in the most cost effective manner without compromising quality of care in order
to promote optimal outcomes for all parties involved. The Case Manager is an individual who provides an ongoing objective assessment of the client, family, and treatment plan to maximize quality of care while minimizing costs on a long-term basis. The overall goal of the Case Manager is to facilitate optimal outcomes for all parties involved through advocacy, objectivity, and liaison/collaboration with emphasis on continuity of care, effective communication, and coordination of appropriate health care services. Types of Medical Case Management Internal: Employed by a facility, government agency, insurance carrier, self-insured or a health care agency. Insurance Based or Facility Based. When a facility, governmental agency, insurance carrier, self-insured entity, or a health care program employs their own staff or Medical Case Manager. External: Employed by a third party payor. When a third party payor retains an independent Medical Case Management firm/individual to provide active Case Management services. A. Referral There are certain standards that should be met before a referral/client is accepted for service. 1. The Medical Case Manager should have recognized qualifications and expertise related to the diagnostic category, needed resources and specific working guidelines set by the referral source and existing legislation. 2. The following information should accompany a referral for service: - Client identifying data, including location and telephone numbers of primary contact source. - All pertinent medical and medically related data. - Purpose of referral - Referral source's special instructions for service, if any - Attorney name and phone number, if applicable. B. Evaluation/Assessment The first step in the Medical Case Management process is the evaluation/assessment. Depending upon the purpose of referral, the Medical Case Manager may emphasize various elements of the evaluation/assessments, however, the following points should be addressed in any evaluation: - Obtain necessary release to contact the injured/ill client, significant other and attorney, if applicable, by an initial interview/contact. - Review of medical status, including a system review to obtain a history of current injury/illness; relevant medical and/or psychosocial information; description of current physiological/psychosocial status; current medical care, including identification of treating physician(s), tests and treatment regime; care provider's level of expertise related to the needs of the client, probable complications which may ensue related to the diagnosis; possible pharmacological complications. An on-site assessment is highly recommended as an essential component for catastrophic medical and injury cases. - Assesses the client's level of understanding and learning needs related to the diagnosis, treatment, prognosis, treatment provider, treatment options, financial resources, psychosocial adjustment and coping mechanisms. - Assess the significant other's knowledge base, health status, expectations, and the potential/reality for the significant other to act as the primary caretaker where this is an issue. - Consult with the health care team, including medical professionals, allied health professional, funding source
and "family" to gather additional assessment data. C. Plan Development and Implementation The nature of the Medical Case Management plan developed for any client will be based on the nursing process and include a number of variables: purpose of the referral, medical diagnosis, nursing diagnosis, age, medical history, family support system, geographic location, nature of third party funding, community resources and statutory requirements; however, the following standards should be met for plan development: - The client should be an active participant of the plan within his or her physical and/or psychosocial capacities. - When a plan is written, all interested parties should agree before its implementation and/or submission to a government body. - The plan should clearly identify flexible short-term and long-term objectives and actions directed toward achieve these goals and target dates for completion. - The plan should incorporate concrete recommendations for plan implementation. - A rationale for the plan, integrating the elements of the evaluation and cost benefit analysis, should be included. - Contingencies should be developed for likely problems and/or complications which may develop in any elements of the plan. This will allow utilization of new resources should the established processes not achieve the goals as stated. As important as implementing the plan for the medical management of any case, of equal importance are that time frames and specific operational objectives be developed for the completion and termination of Case Management services. In some cases it may be detrimental to the process should Case Management be maintained beyond its effective duration. The implementation of an agreed Medical Case Management plan required the Case Manager, whether on-site or telephonically, to achieve the following: - Coordination of services among the medical professionals, allied health professionals, program Case Manager, community agents, personnel, and funding source representatives for the goal of assuring smooth service delivery. - Implementation of rehabilitation principles for the assurance of optimum delivery of service and outcome for the injured or ill client. - Utilization of accelerated and/or alternative care options where appropriate. - Coordination and facilitation of inpatient, outpatient, and home services, as well as, independent medical examinations and environmental modifications as needed. - Assistance in securing funding for medical equipment, supplies, medications, services in a cost-effective manner. - Provision of education and counseling to the injured/ill client and family within the scope of the Medical Case Manager's licensure or facilitation of such counseling services by appropriately credentialed and licensed professionals. - Assist in facilitating vocational rehabilitation services on appropriate cases dependent on the type of coverage/referral to assure effective communication among all involved parties. - Provide the education, guidance and recommendations to the funding source, family and other interested parties regarding alternative for care and service. D. Report Writing and Record Keeping Medical Case Managers understand that all written reports constitute legal records and, as such, are subject to discovery. The time frame for completion of the first verbal and written reports should be determined at the time of referral or by jurisdictional requirements, and compliance should be consistent with that determination. The documentation should be reflective of the objective for case referral and assignment. The client's status and needs must be reports in a factual and objective manner reflective of realistic advocacy. Depending on the goal of the referral, a written cost benefit analysis, to include alternative care options, an individualized medical rehabilitation plan, or independent living plan, may be required. Follow-up reports should include the results of the implemented recommendations and/or plan. The frequency of these reports are based on need, determination of the referral source and jurisdictional requirements. It is generally recommended that they be issued monthly unless otherwise specified. The following records should be in the file at all times: - Written initial evaluation or assessment - Written plan (if indicated) - Written closure report or letter of closure verification - Written agreements such as ancillary services, release of client records, responsibilities, etc. - Medical/psychological reports - Correspondence between interested parties - Regulatory orders effecting or related to the client Client records should be secured to insure confidentiality and should not be disclosed without the client authorization, guardian authorization or legal requirement. After closure, records should be maintained for the number of years after closure that is consistent with jurisdictional requirements. After that time, they should be destroyed in a manner assuring preservation of confidentiality. E. Closure Medical Case Managers recognized that services may terminate at any point in the rehabilitation process. There are several situations that may result in either a successful or unsuccessful resolution to closure. At least one of the following situations should exist prior to case closure: - Case management goals have been achieved. - Further services will not probably result in client's improvement. - Services declined or discontinued by client or by client's authorized representative. - Client no longer available for services, i.e., moved to another location, deceased, incarcerated, etc. - Administrative terminations, including case settlement, policy financial limits exhausted, regulatory directives, third party payor termination, policy contractual limitations, etc. - Continued case involvement could compromise professional/ethical standard of practice. Once any of the above situations have occurred, the Medical Case Manager should document the justification for case closure as follows: - Report activities supporting the achievement of goals - Report referral for "assessment only" as requested - Report data supporting the improbability of client's improvement - Report client's or authorized representative's lack of interest, declination, or non-availability for services - Report the unavailability of funding needed to continue service provision - Report the closure due to the necessity of rationing the client's limited funding so as to give funded services at the most appropriate stage of the client's rehabilitation - Report the specific administrative terminations and rationale - Report accountability of service effectiveness, i.e., cost/benefit analysis Upon closure, if the Case Manager is aware of client needs which may be met by community resources/similar benefits, they should refer the client to these resources. F. Dispute Resolution NARPPS members recognize that there will be occasions when disputes occur between parties in the rehabilitation process. It is the Medical Case Manager's responsibility to assist in resolving these disputes as quickly as possible. The following services may be provided by the Medical Case Manager in resolving these disputes: - Coordination of communication between involved parties - Written definition of the dispute - Written definition of the positions taken by each of the involved parties in the dispute - Informal attempt at dispute resolution - Formal attempt, including conferences, administrative hearings, and other regulatory assistance in cases where covered by law - Written statement of the resolution outlining responsibilities of all interested parties PROFESSIONAL EDUCATION, TRAINING AND EXPERIENCE NARPPS supports the principle of accreditation of member rehabilitation companies on a voluntary basis. NARPPS considers the following standards to e the minimum requirements for a Rehabilitation Practitioner: A. Professional Rehabilitation Practitioner 1. Holder of a Masters or Doctorate degree in health support services from an accredited institution, plus one year of experience in vocational rehabilitation or physical rehabilitation. At least one year shall have been spent in the rehabilitation of disability conditions and/or disease; or 2. Holder of a Baccalaureate degree in health support services from an accredited institution, plus two years of experience in vocational rehabilitation or physical rehabilitation. At least one year shall have been spent in the rehabilitation of disabling conditions and/or diseases; or 3. Diploma in Nursing from an accredited institution plus a current RN license, plus three years of experience in physical rehabilitation or vocational rehabilitation. At least one year shall have been spent in the rehabilitation of disabling conditions and/or diseases; or 4. Holder of any Baccalaureate degree other than listed in No. 2 above from an institution, accredited plus three years of experience in vocational rehabilitation. At least two years shall have been spent in the rehabilitation of disabling conditions and/or diseases. B. Associate Rehabilitation Practitioner Holder of an Associate degree or high school diploma, plus continuing education and five years experience in vocational rehabilitation, including counseling, evaluation and direct case services. Three of the five years shall have been spent in the rehabilitation of disabling conditions and/or diseases. C. Rehabilitation Intern An individual who meets the minimum education requirements but does not meet the experiential requirements must be supervised by a professional rehabilitation practitioner. The intern shall provide the name of the professional rehabilitation practitioner under who direct supervision he/she will work. The supervisor will function as the primary case manager. ADVOCACY Advocacy is a term used when referring to the act of pleading the cause or coming to the aid of another NARPPS members respect the integrity and interest of the people and groups with whom they work. With regard to disabled persons, advocacy takes into account such issues as the legal rights of handicapped people to achieve integration into the social, cultural and economic life of the general community. The role of the NARPPS member as an advocate is to protect and promote the welfare of disabled persons to maximize control over circumstances that interfere with their obtaining vocational independence. When there is a conflict of interest between the disabled client and the NARPPS member's employing party, the member must clarify the nature and direction of his/her loyalty and responsibilities and keep all parties informed of that commitment. NARPPS supports legislation and providers for services and care for the disabled. CLIENT RIGHTS NARPPS members recognize that citizens with disabilities have the right to the highest quality of rehabilitation services and benefits available from the rehabilitation program for which they are qualified to receive these rehabilitation services and benefits. Clients should be fully informed of the potential benefits and services available to them from their rehabilitation program. Clients should be fully informed of the reasons for the recommendations and/or provision of specific rehabilitation services, or lack thereof. Clients should be also be informed of their own responsibilities within rehabilitation plans. When the services to be provided includes Vocational Rehabilitation Services and a written plan is required, the client should review and sign the plan. Notwithstanding any other rights of appeal to third party payors, regulatory agencies, governmental agencies, or other such entities, a client has the right to appeal any decision related to the provision, or lack of provision, of his/her rehabilitation services to the service provider. TESTIMONY NARPPS recognizes that a rehabilitation practitioner has a responsibility, when requested, to provide objective testimony. Rehabilitation Practitioners provide services within the legal system and, in addition to providing primary care habilitation services, are called upon to testify as to facts of which they have knowledge or to render a professional opinion on rehabilitation question or disability factors affecting an individual. The testimony of a rehabilitation practitioner should be limited to the specific fields of expertise of that
individual as demonstrated by training, education and experience. The extent of the practitioner's training, education
and experience needed to testify is determined by the legal jurisdiction in which the practitioner is testifying.
It is also permissible for a rehabilitation practitioner to render an expert opinion and answer questions about a disabled or handicapped individual that has been evaluated either in person or hypothetically. CONFIDENTIALITY The purpose of confidentiality is to safeguard information that is obtained in the course of practice. Disclosures of information are restricted to what is necessary, relevant and verifiable with respect to the client's right to privacy. When a third party is involved, the key to confidentiality, when considering personal of confidential information, it is to make certain that the client is aware, from the outset, that the delivery of service is being observed by the third party. Professional files, reports and records shall be maintained under conditions of security and provisions will be made for their destruction when appropriate. BUSINESS PRACTICES Individuals and/or organizations in private sector rehabilitation should adhere to all applicable standards and practices common to the general business community. In addition, they should give special attention to and adhere to the following specific points: 1. Members will adhere to all applicable federal, state and local laws establishing and regulating business practices. 2. Members will not misrepresent themselves, their duties or credentials. 3. Members should carry professional liability insurance for the protection of themselves and affected third parties. 4. Rehabilitation Practitioners shall not engage in claims practices as such as defined under the statutes and legal precedents in their respective jurisdictions. 5. It is to be encouraged that any discussion and comments or criticism directed toward a fellow Rehabilitation Practitioner or organization shall be positive and/or constructive. 6. Competitive advertising should be factually accurate and shall avoid exaggerated claims as to costs and results. 7. When asked to comment on cases being actively managed by another Rehabilitation Practitioner and/or organization, the review shall make every reasonable effort to conduct an in-person evaluation before rendering his conclusion. 8. A Rehabilitation Practitioner member will not promise or offer services or results he cannot delivery or has reason to believe he cannot provide. 9. A member is not to solicit referrals either directly or indirectly by offering money or gifts other than de minimis gifts to a referral source. 10. When recruiting an employee, members should not falsely promise benefits, employment advancement or salaries which they know or have reason to know that they cannot meet. 11. No Rehabilitation Provider or organization shall effectuate or participate in the wrongful removal of professional rehabilitation files or other materials upon the initiation of new employment. 12. Rehabilitation Practitioners shall not enter into fee arrangements that would be likely to create conflict of interest or influence their testimony in claims cases. Rehabilitation Practitioners shall advise the referral source/payor of its fee structure in advance of rendering of any services and shall also furnish, upon request, detailed accurate time records. 13. Member referral sources working for member organizations of individuals shall pay invoices in accordance
with normal payment practices. STANDARDS COMPLIANCE REVIEW BOARD The function of the Standards Compliance Review Board will be to investigate and rule on alleged infraction of the approved standards and ethics of NARPPS members. The Standards Compliance Review Board will consist of the following: a. Rehabilitation Counselor e. Insurance Claims person or Buyer b. Rehabilitation Nurse f. Private Practitioner (general) c. Vocational Evaluation g. Company Administrator d. Placement Specialist NOTE: ALL COMPLAINTS SHOULD BE FILED BY MAILING THEM IN AN ENVELOPE MARKED: Personal and Confidential Chairperson of the Standards Compliance Review Board National Association of Rehabilitation Professionals in the Private Sector 1661 Worcester Road #203 Framingham, MA 01701
ADDENDUM "B-1" Acme Rehabilitation Company The Acme Insurance Company division of The Acme Insurance Company The So-Sue-Us Casualty & Surety Company members of The Acme Group Medical Services Division 200 Worst Case Scenario Drive Birmingham, Alabama 35203 205/555-1212 February 15, 1997 Mr. Smith J. Jones Smith & Jones, PC P.O. Box Z28 Birmingham, AL 35203 RE: John Doe Dear Mr. Jones: Thank you for your letter dated February 13, 1997 advising of your representation. I have forwarded the letter to Mr. Joe Josephson, claims case manager, with The Acme Insurance Group. Mr. Josephson's telephone number is 205/555-1212. Please allow me to introduce myself as a Registered Nurse case manager with Acme. I have been monitoring Mr. Doe's medical progress since the time of injury. My role is primarily that of medical coordination, and I work towards a goal of assisting our clients in reaching their maximum medical improvement. Prior to your letter I have been meeting with Mr. Doe and his physician. This allows me to identify any problems, do a needs assessment, obtain the physicians' treatment recommendations and ascertain the client's progress. I would like to continue with medical care coordination if you do not object. Please contact me at 205/555-1212 at your convenience. I look forward to hearing from you soon and continuing to identify any needs Mr. Doe might have. Sincerely, Janie J. Nurse, RN Case Manager Claims Medical Division cc: Joe Josephson, Claims Case Manager ADDENDUM "B-2" SMITH & JONES A Professional Corporation Attorneys At Law P.O. Box Z28 Birmingham, Alabama 35203 February 18, 1997 Janie J. Nurse, R.N. Acme Rehabilitation Company division of Acme Insurance Company 200 Worst Case Scenario Drive Birmingham, Alabama 35203 RE: John Doe Dear Ms. Nurse: I received your recent letter. Please be advised that you, Acme Rehabilitation Company and all of The Acme Group's employees do not have my permission or authority to meet with Mr. Doe, my client. You, Acme Rehabilitation Company and all of The Acme Group's employees do not have my permission or authority to be present during any appointment Mr. Doe may have with any of his treating physicians. To the contrary, I am instructing you not to contact Mr. Doe directly or take any action to interfere with or intervene in the physician/patient relationship Mr. Doe enjoys with his health care providers. I further ask that you, Acme Rehabilitation Company and all of Acme's employees not in any way interfere with or try to direct the course of treatment prescribed for Mr. Doe by his treating physicians as the result of his on-the-job injury. My understanding of Alabama law is that once a physician has been approved, it is that physician who directs the proper course of treatment, without outside interference including the "approval" of treatment that physician finds medically necessary. If you disagree with my interpretation of Alabama law, please cite me the case, statute or regulation which allows you, Acme Rehabilitation Company or any of The Acme Group's employees to dictate the course of Mr. Doe's care. If I do not hear from you, I will assume that there is none. Should you have any questions regarding the contents of this letter, please feel free to contact me. Sincerely, SMITH & JONES, PC Smith J. Jones For the firm cc: Mr. John Doe Hon. Sam Samuelson, Esq., Defense Attorney Joe Josephson, Claims Manager ADDENDUM "C" LICENSED PROFESSIONAL COUNSELOR PRACTICE ACT: Code of Alabama 34-8A-1 et. seq. 2. As used in this Act, unless the context requires a different meaning: (e) The "private Practice of Counseling" shall mean rendering or offering to individuals, groups, organizations, or the general public counseling services, in private practice, for a fee, monetary or otherwise, involving the application of principles, methods, or procedures of the counseling profession which include, but are not restricted to: "Counseling" which means assisting an individual, through the counseling relationship, to develop understanding of personal problems, to define goals, and to plan action reflecting his or her interests, abilities, aptitudes, and needs as these are related to personal-social concerns, education progress, and occupations and careers. "Appraisal activities" which mean selecting, administering, scoring, and interpreting instruments designed to assess an individual's aptitudes, attitudes, abilities, achievements, interests, and personal characteristics, but shall not include the use of projective techniques in the assessment of personality. "Counseling, guidance, and personnel consulting" which means interpreting or reporting upon scientific fact or theory in counseling, guidance, and personnel services to provide assistance in solving some current or potential problems of individuals, groups, or organizations. "Referral activities" which means the evaluating of data to identify problems and to determine advisability of referral to other specialists. Research activities" which means the designing, conducting, and interpreting of research with human subjects. OCCUPATIONAL THERAPY PRACTICE ACT, Code of Alabama 34-39-3: (4) Occupational therapy. The application of purposeful activity in which one engages for evaluation, treatment, and consultation related to problems interfering with functional performance in persons impaired or threatened by physical illness or injury; psychosocial dysfunction; congenital dysfunction; developmental and learning dysfunction; the aging process; environmental deprivation or anticipated dysfunction; in order to maximize independence, prevent disability, and maintain health. Specific occupational therapy services include, but are not limited to, evaluation techniques such as assessment of sensory motor abilities; assessment of the development of self-care activities and capacity for independence; assessment of the capacity for work readiness and work tasks; assessment of play and leisure performance; and assessment of environmental areas for the handicapped. Specific occupational therapy treatment techniques include activities of daily living (ADL); the design, fabrication, and application of selected splints or orthotics, or both; sensorimotor activities and exercise; the use of adaptive equipment; therapeutic activities, modalities, and exercise to enhance functional performance; work readiness evaluation and training. An occupational therapist or occupational therapy assistant is qualified to perform the above- activities for which they have received training and any other activities for which appropriate training or education, or both, has been received. Notwithstanding any other provision of this chapter, no occupational therapy treatment programs to be rendered by an occupational therapist, occupational therapy assistant, or occupational therapy aide shall be initiated without the referral of a licensed physician or dentist who shall establish a medical diagnosis of the condition for which the individual will receive occupational therapy services. In cases of long-term or chronic disease, disability, or dysfunction, of any combination of the foregoing, requiring continued occupational therapy services much be reevaluated by a licensed physician or dentist at least annually for confirmation or modification of the medical diagnosis. Occupational therapists employed by state agencies and those employed by the public schools and colleges of this state who provide screen and rehabilitation services for the educationally-related needs of the students are exempt from this referral requirement. (5) Occupational therapist. A person licensed to practice occupational therapy as defined in this chapter, and whose license is in good standing. PHYSICAL THERAPY PRACTICE ACT: Code of Alabama 34-24-191 (A) For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed by this section: (1) Physical therapy. The treatment of a human being by the use of exercise, massage, heat, cold, water, radiant energy, electricity or sound for the pupose of correcting or alleviating any physical or mental condition or preventing the development of any physical or mental disability, or the performance of neuromuscular-skeletal tests and measurements to determine the existence and extent of body malfunction; provided, that physical therapy shall be practiced only upon the referral of a physician licensed to practice medicine or surgery and a dentist licensed to practice dentistry and shall not include radiology or electrosurgery. (2) Physical therapist. A person who practices physical therapy. (3) Physiotherapist. Synonymous with the term "physical therapist," andsaid terms shall be used to identify only those persons registered under this article. The physical therapist may use the letters "P.T." or "R.P.T." in connection with his name or place of business to denote his registration hereunder. REGISTERED NURSE PRACTICE ACT, Code of Alabama 34-21-1 (3) Practice of professional and practical nursing. Nursing is a profession the practice of which is defined as : a. Practice of professional nursing. The performance, for compensation, of any act in the care and counseling of persons or in the promotion and maintenance of health and prevention of illness and injury based upon the nursing process which includes systematic data gathering, assessment, appropriate nursing judgment and evaluation of human responses to actual or potential health problems through such services as case finding, health teaching, health counseling; and provision of care supportive to or restorative of life and well-being, and executing medical regiments including administering medications and treatments prescribed by a licensed or otherwise legally authorized physician or dentist. A nursing regiment shall be consistent with and shall not vary any existing medical regimen. Additional acts requiring appropriate education and training designed to maintain access to a level of health care for the consumer may be performed under emergency or other conditions which are recognized by the nursing and medical professions as proper to be performed by a registered nurse. ADDENDUM "D" Shinbaum & Howell Attorneys at Law, PC 608 South Hull Street Montgomery, Alabama 36104 334/269-4440 Richard D. Shinbaum, LLM Mailing Address: Allen W. Howell* P.O. Box 201 William K. Abell Montgomery, *certified in civil trial advocacy Alabama by the National Board of Trial Advocacy 36104-0201 February 4, 1997 Workers' Comp Carrier Anytown, USA Dear: We understand that according to your rights under Code of Alabama 1975 section 25-5-77, your company had Mrs. John Doe submit to a physical examination by Dr. Richard Roe. Records indicate that Mrs. John Doe was given a panel of four doctors from which to choose a physician. From that list, Mrs. John Doe chose Dr. Ben Jones. Be advised that Mrs. John Doe is happy with Dr. Ben Jones' service and he is her treating physician. Pursuant to the Workers' Compensation Act, Dr. Richard Roe had a right to examine Mrs. John Doe with her own physician present (see Code section, attached). Dr. Richard Roe does not have a right to treat, prescribe medication, diagnose, restrict or send Mrs. John Doe back to work. These duties are solely within the discretion of Dr. Jones, the treating physician. It is our understanding that Dr. Jones has not released Mrs. John Doe to work and at this point we are requesting that her benefits be reinstated. Should this not happen within ten (10) days of the date of this letter, we will have no other option but to litigate this matter. If you would like to discuss this matter, please do not hesitate to give me a call. Sincerely, William K. Abell ADDENDUM "E" January 29, 1997 Ms. Claudia Claims-Adjuster Any Third Party Administrator Anytown, Alabama RE: John Paul Jones v. Nelson-Trafalgar Freightways Dear Ms. Claims-Adjuster: As you know, I recently began representing Mr. John Paul Jones in his workers' compensation case. I understand that Connie Case-Manager has visited Mr. Jones. I would appreciate your clarifying for me whether Ms. Case-Manager is providing medical management or vocational rehabilitation services. If Ms. Case-Manager is providing medical management, before she has any further contact with my client, I would appreciate her forwarding me a copy of her resume. I will also require her written assurance that she will provide me with a copy of her reports and a written assurance that she will not be present in the examination room when my client is being examined by the doctor. Thank you for your assistance in this matter. If you have questions or require additional information, please
contact me in the Jonesboro office at 334/555-1234. Sincerely, cc: Mr. John Paul Jones April 9, 1997 VIA FACSIMILE TRANSMISSION Ms. Claudia Claims-Adjuster Any Third Party Administrator Anytown, Alabama 35203 RE: John Paul Jones v. Nelson-Trafalgar Freightways Dear Ms. Claims-Adjuster: Enclosed is Mr. Jones' restricted work orders from his authorized treating physician. B. Franklin Thomas, M.D., dated April 8, 1997. Mr. Jones met with your insured, specifically, Mr. Nelson, district manager, on April 8, 1997 to discuss his work restrictions. According to Mr. Nelson, he will not be able to accommodate Mr. Jones' restrictions of "return to work for ½ days only." Based on this information, please continue Mr. Jones' temporary total disability benefits. You will recall that when we talked on March 20, 1997, you agreed to provide a panel of four physicians. Either provide this panel or your reason for not honoring this request. I have not received a copy of Ms. Case-Manager's resume or written assurance that she will provide me with copies of her reports which I have requested since January 29, 1997. If these assurances are not given by April 18, 1997, I will withdraw my client's authorization for her to access his medical records or receive information from his doctor. If you have questions or require additional information, please contact me in the Opelika office at 334/555-1234. Thank you for your attention to this matter. Sincerely, cc: Mr. John Paul Jones May 5, 1997 VIA FACSIMILE TRANSMISSION Ms. Connie Case-Manager Any Case Management Company Anytown, Alabama 35203 RE: John Paul Jones v. Nelson-Trafalgar Freightways Dear Ms. Case-Manager Enclosed is a copy of my January 29, 1997 letter to Ms. Claudia Claims-Adjuster, in which I indicated that I would not approve direct contact with my client until you provide specific information and assurances to me. I also discussed this matter with Ms. Claims-Adjuster on March 20, 1997 and she told me that she would request from you the information I want. Also enclosed is a copy of a letter I sent to Ms. Claims-Adjuster on April 9, 1997, indicating that if I did not have the information provided by April 18, I would withdraw my client's authorization for you to access his medical records or receive information from his doctor altogether. It is now my understanding upon talking with you that you continued to have direct contact with Mr. Jones and failed to provide what I requested due to the fact that you did not know that he had an attorney. For this reason, I will give you an opportunity to honor my request and will not withdraw authorization to access his medical records. I will not, however, agree to your contact with my client. Mr. Jones knows to have no further direct contact with you, and you are now on notice to have no contact with him. Please honor my request for information immediately and have no contact with my client until you do. I also want to document the fact that I told you on this date that Mr. Horatio Nelson, District Manager, told Mr. Jones to go home until contacted by the office since the home office told Mr. Jones that it was not yet prepared to put Mr. Jones on the payroll. I called and left a voice mail for Ms. Claims-Adjuster explaining this situation and asking her to continue paying Mr. Jones' benefits. I would appreciate any assistance you can provide since you told Mr. Nelson that you would inform Ms. Claims-Adjuster to terminate his benefits when you thought that he would be immediately working. You will note that on April 9, 1997, I asked Ms. Claims-Adjuster for a panel of four physicians. Please find out whether this will be provided or whether it will not. Sincerely, cc: Ms. Claudia Claims-Adjuster Mr. John Paul Jones May 6, 1997 VIA FACSIMILE TRANSMISSION Ms. Claudia Case-Manager Any Case Management Company Anytown, Alabama 35203 RE: John Paul Jones v. Nelson-Trafalgar Freightways Dear Ms. Case-Manager: Mr. Jones is willing to accept vocational rehabilitation services, but we want these services performed by a
qualified professional. Though you have not provided me with your resume, it has come to my attention that you
are not a licensed counselor. As such, your performing vocational services, including job placement, without a
license is outside your qualifications and violates Code of Alabama 34-8A-1-23. As such, I will
not be able to agree to your continued involvement in this case. You are hereby instructed to have no further contact
with my client or involvement in his case. Your authorization to receive information from any medical provider
or to be involved in any way in Mr. Jones' case is hereby revoked, and I am herewith putting all parties on notice
of same. Sincerely, cc: Mr. John Paul Jones Dr. B. Franklin Thomas Ms. Claudia Claims-Adjuster Mr. Horatio Nelson
ADDENDUM "F" Questionnaire to be completed by proposed vocational rehabilitation counselor retained by workers' compensation carrier Source: Allen G. Woodard, Esq., Laird, Woodard & Baker, PC 1213 East Three Notch Street, Andalusia, AL 36420, 334/222-9115, fax: 334/222-9448 Employee/claimant name 1. Employer name 2. Workers' compensation carrier name 3. Date of workers' compensation injury 4. Vocational counseling firm name 5. Vocational counselor's name 6. Business address 7. Business phone 8. Social Security number 9. Date of initial contact by workers' compensation carrier 10. Name of carrier representative who contacted you 11. How long have you been in the vocational counseling profession? 12. List the names and addresses of any claimant/employee attorneys who have retained you for vocational counseling. 13. Summarize your education and vocational counseling experience. (You may answer this question by attaching a curriculum vitae if you desire.) 14. Will you agree to testify in this workers' compensation claim if requested: 15. On behalf of employer and carrier? 16. On behalf of the claimant? 17. What was the carrier's representative's stated purpose for asking you to become involved with claimant? 18. If you are selected to provide vocational assistance to claimant, what will your ultimate goal be? 19. If claimant cooperates with you, will you make reasonable efforts to find or assist the claimant in finding permanent employment within a 40 mile radius of his/her home which is at least as gainful as the employment claimant was engaged in at the time of the workers' compensation injury? 20. Will you make reasonable efforts to find or assist claimant in finding employment within the restrictions placed on him by his medical doctors involving the usual duties of his customary employment? 21. Will you agree to document and testify about any refusal by any employer to hire claimant based on any disability resulting from claimant's workers' compensation injury? 22. Will your evaluation include jobs involving work activities other than the usual duties of claimant's customary employment? 23. Will the scope of your employment by the carrier herein include an opinion or determination by you as to claimant's ability to find employment performing job activities other than the usual duties of claimant's customary employment? 24. If claimant cooperates with you but does not find gainful employment involving the usual duties of his customary employment, will you agree to testify that he/she has made reasonable efforts to obtain such employment? ADDENDUM "G" REHABILITATION TORT CASES Aubrey Adams v. International Rehabilitation Associates (Intracorp) and Tammy L. Bradly, 613 So.2d 1207 (Ala. 1992). Jury verdict of $170,000 upheld by Alabama Supreme Court. Drury v. Corvel Corporation, 1:92 CV 2801 RCF. United States District Court for the Northern District of Georgia, Atlanta Division. Jury verdict of $261,400, no appeal. Jalone Gibson v. Southern Guaranty Insurance Company and Med-Manage, Inc., Roberta Shaw, RN, et. al., 623 So. 2d 1065 (Ala. 1993). Summary judgment issued for defendant and upheld by Alabama Supreme Court. Keith Glassco v. International Rehabilitation Associates, General Rehabilitation Services, Jane Moses, Diane Pyle, et. al., CV 92-51, Cullman County, Alabama. Case settled out of court. Deborah K. Hasse vs. Colonial Fast Freight Lines, International Rehabilitation Associates, INA/Aetna, Laura McBride, CE McBride, Tom McBride, Jim Hall, Tom Clark, et. al., CV 86-2197, Jefferson County, Alabama. Case settled out of court. Nancy Sue Marbut vs. Directions Management, Inc., Gwen Davis, Pat Bilstein, et. al., CV-95-206JB, Limestone County, Alabama. Summary judgment issued for defendant and upheld by Alabama Supreme Court. Reid v. Aetna Casualty and Surety company, et. Al., 5 ALW 45-23, 3/21/97, Jefferson County. Summary judgment issued for defendant and upheld by Alabama Court of Civil Appeals. Mylinda B. Roberson and Arthur F. Roberson vs. International Rehabilitation Associates, Jane Moses, et. al., CV 86-5758, Jefferson County, Alabama. Case settled out of court. John Tatum v. Continental Rehabilitation Resources, Renee Whitson, et. al., CV 91-340-J, Limestone County, Alabama. Case settled out of court. ADDENDUM "H" CORE AND CRCC STANDARDS (BRIEF VERSION) Canon 1: Moral and legal standards Rehabilitation counselors shall behave in a legal, ethical, and moral manner in the conduct of their profession, maintaining the integrity of the Code and avoiding any behavior that would cause harm to others. Canon 2: Counselor-client Relationship Rehabilitation counselors shall respect the integrity and protect the welfare of the people and groups with whom they work. The primary obligation of rehabilitation counselors is to their clients (defined as individuals with disabilities who are receiving services from rehabilitation counselors). At all times, rehabilitation counselors shall endeavor to place their clients' interests above their own. Canon 3: Client Advocacy Rehabilitation counselors shall serve as advocates for individuals with disabilities. Canon 4: Professional Relationships Rehabilitation counselors shall act with integrity in their relationships with colleagues, organizations, agencies, institutions, referral sources, and other professions in order to provide clients with optimum benefits. Canon 5: Public Statements/fees Rehabilitation counselors shall adhere to professional standards in establishing fees and promoting their services. Canon 6: confidentiality Rehabilitation counselors shall respect the confidentiality of information obtained from clients in the course of their work. Canon 7: Assessment Rehabilitation counselors shall promote the welfare of clients in the selection, use and interpretation of assessment measures. Canon 8: Research activities Rehabilitation counselors shall assist in efforts to expand the knowledge needed to serve individuals with disabilities more effectively. Canon 9: Competence Rehabilitation counselors shall establish and maintain their professional competence at a level which ensures their clients will receive the benefit of the highest quality of service the professional is capable of offering. Canon 10: CRC Credential Rehabilitation counselors holding the designation of Certified Rehabilitation Counselor (CRC) shall honor its
integrity and respect the limitations placed on its use. ADDENDUM "I" KEY POINTS IN DIR ADMINISTRATIVE CODE RE: CASE MANAGEMENT AND UTILIZATION REVIEW SUMMARIZED BY MARILYN T. OAKES, CRC, LPC A/O 8-1-97 rules effective 9-12-96 480-5-5-.02 definitions (selected) (5) Agent: an individual responsible for the administration of a workers' compensation claim for an employer. (10) Bill screening: the evaluation and adjudication of provider bills for appropriateness of reimbursement relative to medical necessity and prevailing rates of reimbursement, duplicate charges, unbundling of charges, relativeness of services to injury or illness, necessity of assistant surgeons, adjudication of multiple procedures, number of modalities, global procedures, and any other prevailing adjudication issues that may apply. (11) Clinical criteria: any prevailing and generally accepted medical policies, rules, medical protocols, guides and standards which may include, but is not limited to, criteria set out in the intensity/severity/discharge manual; the nomenclature and rules set out in the latest edition of Physicians' Current Procedural Terminology (CPT-4) publication; the nomenclature and rules set out in the latest edition of International Classification of Diseases; the nomenclature and rules set out in the latest edition of the American Society of Anesthesiologist Relative Value Guide; rules and nomenclature set out in the latest edition of Global Service Data for Orthopaedic Surgery published by the American Academy of Orthopaedic Surgeons' criteria established by the Commission on Accreditation of Rehabilitation Facilities (CARF); rules, nomenclature and standards established by the National Association of Rehabilitation Professionals in the Private Sector (NARPPS); rules, nomenclature and standards established by the latest edition of the Health Care Finance Administration Common Procedure Coding Systems (HCPCs); rules and criteria as described in the Professional Activity Study; and prevailing rules, nomenclature and standards established by peer review committees established by medical provider associations used by the utilization review entity to determine certification of medical services; or any other professional groups as recognized by the Alabama Workers' Compensation Medical Services Board. (21) Elective surgery: approved surgery which is medically necessary, yet non emergency in nature, but which may be performed at a later date. (22) Emergency hospitalization: inpatient services provided after the sudden onset of a medical condition manifested by symptoms of sufficient severity (which may include, but not be limited to severe pain), which, in the absence of continued inpatient medical attention, could reasonably be expected by an appropriate health care professional to result in placing the claimant's life in serious jeopardy, serious impairment to bodily function, or serious dysfunctions of any bodily organ or part. (23) Emergency services: medical services provided after the onset of a medical condition manifested by symptoms of sufficient severity (which may include, but not be limited to severe pain), which, in the absence of immediate medical attention, could be expected by an ordinary reasonable person to result in placing the claimant's life in jeopardy, impairment to bodily functions, or dysfunction of any bodily organ or part. (40) Medical case management: The process of assessing, planning, implementing, coordinating, monitoring and evaluating the services required to respond to an employee's health care needs to attain the goals of quality and cost-effective care. Case Management is not intended as a substitute for utilization review and medical necessity determinations under these rules and case managers are not permitted to deviate from or alter a medical regimen ordered by a treating physician. (42) Services or supplies which are medically necessary to treat the work related illness or injury. To be medically necessary, services and supplies shall meet the following criteria: be consistent with the diagnosis and treatment of the work related illness or injury; be consistent with the standard of care for good medical practice; not be solely for the convenience of the patient, family, hospital, physician or other provider; be in the most appropriate and cost effective medical care setting as determined by the patient's condition; and have scientifically established medical value. (53) Precertification Review: The review and assessment of the medical necessity and appropriateness of services before they occur. The appropriateness of the site or level of care is assessed along with the timing, duration and cost effectiveness of the proposed services. (60) Utilization Management: A comprehensive set of integrated components including: precertification review, admission review, continued stay review, retrospective review, discharge planning, billing screening and individual medical case management as required. (61) Utilization Review (UR): The determination of medical necessity for medical and surgical in-hospital, outpatient, and alternative setting treatments for acute and rehabilitation care. It includes precertification for elective treatments. Concurrent review and, if necessary, retrospective reviews are required for emergency cases. (62) Utilization Review Accreditation Commission (URAC): A national, nonprofit, organization established to encourage efficient and effective utilization review processes and to provide a method of evaluation and accreditation for utilization review programs. 480-5-5-.05 Entity Qualified to Perform Bill Screening (summarized) (1) (a) be familiar with medical terms (b) be familiar with ICD-9-CM, CPT-4, HCPCS Coding, DIR rules 480-5-5-.01 through 480-5-5-.32 and reimbursement as published in the most current AL WC fee schedule (c) familiar with prevailing adjudication rules (d) protect the confidentiality of medical records (e) provide DIR with name and phone number during M-F office hours except legal holidays 480-5-5-.06 Utilization Review Entity qualified to Perform Utilization Review (summarized) (1) Technical review: (a) Must meet requirements of 480-5-5-.05, shall not deny a medical service related to an accepted compensable claim but shall refer any medical services which may not be approved to the first level of clinical review. (2) First level a clinical reviewer: (a) Nurses and other licensed or similarly certified medical professionals conducting first level clinical review of medical and surgical services and other clinical reviews shall, in addition to 480-5-5-.05 Current and valid license or certification of registration from an appropriate licensure agency. Familiar with principles and procedures of utilization review and these rules Clinically supported by an available physician, who has a nonrestricted license to practice medicine. (3) Second level clinical reviewers: (a) Physicians or medical directors who directly support the utilization review activity of an employer/agent or URE shall perform second level clinical review. In addition to the qualifications of 480-5-5-.05, physicians or medical directors performing second level review shall: Current nonrestricted license to practice medicine or a health profession in the United States. Oriented to the principles and procedures of utilization review, peer review and these rules; Review cases in which a clinical determination to certify cannot be made by the first level clinical reviewer; Review all cases in which the utilization review process has concluded that a determination not to certify for clinical reasons is appropriate. (4) Third Level Clinical Reviewers (a) third level clinical reviewers shall be providers who serve as peer consultants or peer advisors and render peer clinical review (third level clinical review) determinations for an expedited or standard appeal and shall, in addition to 480-5-5-.06 Active practice for standard appeal; or Hold current nonrestricted license to practice medicine or a health profession in the U.S. for an expedited appeal; Board certified in the same or similar specialty approved by the American Board of Medical Specialists for Physicians or the Advisory Board of Osteopathic Specialists for Osteopaths from the major areas of clinical services or a physician who normally treats that type of case as the ordering provider, who medical services are being noncertified or denied, or for nonphysician clinical peers, the recognized professional board for their specialty; Familiar with the principles and procedures of utilization review, peer review, and these rules. 480-5-5-.07 Utilization Review Process (summarized) (1) Express intent that utilization review may be performed by insurance carrier, employer/agent, self-insured employer, or group self-insurance fund. No requirement to hire outside vendors. Qualified entities may perform certain functions as described and permitted by DIR Rules. (2) Technical reviewers: Shall not deny a medical service but shall refer any medical services disapproved to the first level of clinical review. (3) First level clinical review: medical services that do not meet the criteria for first level clinical review shall be referred to the second level of review prior to non certification or denial determination. (4) Second level clinical review (a) Physician or medical director performing second level clinical review shall be reasonably available (within one business day) by telephone or in person to discuss the determination with the attending physician and/or other ordering providers. (b) Upon request by the attending physician or other ordering provider, non certification or denial of payment for medical services pursuant to the second level clinical review process shall be reviewed pursuant to the Peer Clinical Review (Third Level Clinical Review) process. (5) Peer Clinical Review (Third Level Clinical Review) process (a) Expedited appeal: provider can appeal immediate needs by telephone to Peer Clinical Review Providers. Expedited appeal process applies only when the provider and the URE mutually agree that an expedited appeal is necessary to resolve a dispute involving denial of proposed treatment. Failed expedited appeals may be further pursued through standard appeal process. Full documentation required by telephone or in standard appeal. (b) Standard appeal: URE shall establish procedures for appeals in writing and/or by telephone. URE must notify attending physician and claims administrator of its determination on appeal as soon as practical, but in no case more than 30 days after receiving the required documentation. Documentation may include copies of part of all of the medical records and/or a written statement from the provider. Prior to upholding the original decision not to certify for clinical reasons, the qualified URE shall obtain a review of such documentation by a peer clinical review. (Third level clinical review) provider who was not involved in the original determination. Process established by a qualified utilization review entity may include a time period within which an appeal shall be filed to be considered. Attending physician or other ordering provider who has been unsuccessful in an attempt to reverse the appealed determination shall be provided the clinical basis for the upheld determination upon request. 480-5-5-.08 Precertification Required: (summarized) (1) Application for precertification made as early as possible by provider before rendering service. If medical emergency, then notification no later than the next working day. (2) Following medical services require authorization and precertification to be eligible for reimbursement: (a) Non-emergency admissions to inpatient facilities including skilled nursing facilities (b) Elective medical services in an ambulatory surgery center or outpatient surgery department or inpatient admission (c) Outpatient physical therapy , occupational therapy, and speech therapy services (d) Chiropractic services (e) Repeat baseline diagnostic studies where the clinical condition of the patient is unchanged since the initial study, and the initial study is available to the specialist in an appropriate time frame (f) Cases selected by the employer/agent for focused medical management, which may include, but not be limited to, referrals to a specific specialist; (g) Home health care (h) Home IV therapy (i) Pain management or outpatient pain clinics (j) Work hardening (k) Work conditioning (l) Durable medical equipment (other than braces, splints, etc., routinely provided in physician's office) including all items exceeding a reimbursement of $500, all TNS units, and all rental items. (m) Biofeedback (n) Chemical dependency outpatient programs (o) Weight loss programs or clinics (p) Non-emergency dental services of all types (q) MRI scans (r) CT scans (s) Myelograms, discograms, or surface electromyograms (t) Psychiatric or psychological therapy or testing resulting from a compensable injury or trauma (u) Video fluoroscopy (v) Epidurals (w) Stellate Ganglion Blocks (x) Beryllium Blocks (3) Review process may be used to identify and refer cases for discharge planning, generally as related to post-hospitalization services (4) URE or employer/agent shall in the case of a denial of precertification or medical services, provide written (letter of facsimile) notification of the review decision to the requesting provider. (5) Employer/agent shall maintain appropriate internal documentation of each request for precertification to verify the process and the decision, for claims processing, reporting, and audit purposes. (6) Physicians and other referring providers shall, except for an emergency, request precertification at least 48 hours or two working days prior to hospitalization or other medical services requiring precertification. (7) Not intended to supersede any agreement or other arrangements between providers and payors regarding what procedures or sites shall be precertified. 480-5-5-.09 Procedure for Precertification (summarized) (1) Conducted by telephone and/or facsimile during normal business hours (8:30A to 4:30P Central time, Monday through Friday, excluding legal holidays). Written requests processed by URE or employer/ agent on a case-by-case basis. (2) Physician, hospital, or other provider shall initiate process by calling employer/agent at least 48 hours or two working days in advance, except for an emergency. URE or employer/agent shall respond with a review determination within 48 hours or two working days after receipt of necessary information. If medical service does not occur on proposed date or within 15 days following, recertification shall be required. Caller shall contact URE or employer/agent to reaffirm previously submitted data for recertification. (a) Provider shall supply the following information to employer/agent: Employee's name Employee's Social Security number Date of injury Employee's address Sex Employee's date of birth Name of provider or facility Provider's or facility's address Anticipated treatment or admission date Diagnosis (to include ICD-9-CM codes) Expected length of stay, if applicable Major procedures and related CPT-4 codes Plan of treatment Complications or other factors requiring the setting requested Medical justification for planned treatment or inpatient admission Anticipated surgical procedure, if any General anesthesia requirement Attending physician's name Attending physician's address Attending physician's phone number Attending physician's tax ID or Social Security number A brief summary of how the proposed procedure is related to the patient's work related injury Caller's name and number. (b) provider shall furnish descriptive/narrative information and URE or employer/agent shall assist in providing the ICD-9-CM and/or CPT-4 codes. (3) Criteria for admission - all non emergency hospital admissions shall be reviewed using generally accepted criteria to assess the need for the level of care. (4) Criteria for length of stay based on medical necessity and generally accepted criteria (5) Hospital admission requests that clearly conform to paragraph (3) of rule 480-5-5-.09 shall be approved and an initial length of stay may be assigned. (6) Diagnosis or symptoms that do not conform to established clinical criteria shall be reviewed by a registered nurse or physician before approval for treatment or admission is issued. (7) Physicians shall make the decision on all denials of certification, which constitutes the Second Level Clinical Review as set forth in Rule 480-5-5-.07. Any denial is subject to Peer Clinical Review (Third Level Clinical Review) as outlined in Rule 480-5-5-.07. (8) Response shall be generated in writing (letter or facsimile) if the treatment or admission is denied. Verbal or facsimile response shall be given within two working days from the time of the receipt of all necessary information. Copies of the written response, if required, shall be sent to the requesting provider and shall notify the part of the right to appeal and the appeal process. The denial letter shall contain the following elements: claimant's name, social security number and address; date of accident; date of requested service; procedure requested; name of provider or facility; reason for denial; and the appeals process. 480-5-5-.10 Continued stay review. 480-5-5-.11 Technical considerations for review (bill screening) of claims. (Summarized) (1) Initial bill screening shall include the following: (a) job related illness/injury; (b) service/item billed (c) billing period (d) appropriate forms filled out completely (2) If insufficient information for review, the employer/agent should act immediately, as outlined in 480-5-5-.03(1). (3) Determination of medical necessity/cost effective setting shall: (a) consistent with diagnosis and treatment of condition or complaint (b) consistent with standard of care for good medical practice (c) not solely for convenience of patient, family, hospital, physician, or other provider (d) most appropriate and cost effective medical care setting as determined by patient's condition (e) responsibility of the physician or other provider for the final decision regarding the setting in which the procedure is to be performed. (f) reimbursement according to place of service where treatment or service was pre-certified (4) Confidentiality (5) Following is minimum documentation requirements requested by payor (a) legible and signed by health care provider (b) sufficient data to substantiate the diagnosis and need for treatment on each date (c) to substantiate medical necessity: Most complete and precise diagnosis Service billed appropriate for diagnosis Documented in clinical record (e.g., physician findings, historical data) and support medical necessity and appropriateness of medical service billed Documentation available for each service billed. (6) Detection - ongoing program to detect misuse of benefits through routine claims review, claims audit, and investigation of complaints. Referrals of misuse made to applicable agency. (7) Complaints - Complaints from claimants, carriers, employers, physicians, other practitioners, health care facilities, referrals from internal areas of workers' compensation division, and other information concerning utilization review or bill screening may be referred to Ombudsman for medical dispute resolution, whose decision is reviewable by medical services board. (8) On-site audit of charges may be conducted of any provider. 480-5-5-.12 Physician of record. (1) The employer's authorized treating physician (other than emergency medical services) shall be the physician of record for attending or referral purposes. All referrals shall be pre-approved by the employer/agent. The employer/agent shall keep all interested parties involved in the compensable case informed of any authorized change of treating physician. 480-5-5-.13 Emergency care. (1) Provider of emergency services must demonstrate that "emergency services" occurred as defined in rule 480-5-5-.02. 480-5-5-.14 Second or opposing surgical opinion (summarized) (1) When elective surgery has been recommended by the treating physician, the employee, subject to the limitations of Code 25-5-77(b), or the employer/agent is entitled, but not required, to obtain a second professional opinion from a physician board certified in the same or similar specialty or the specialty that normally treats the patient's condition. (a) Regardless of second opinion, employee remains free to elect not to undergo surgery after the consultation, subject to the possibility of denial of benefits for refusal of said surgery. (b) Employer/agent responsible for informing the employee of request for second opinion and for referring employee to a second surgical opinion physician. (c) Designated physician of record shall be notified of request, no duplication of medical services. (2) Employer/agent shall have process to request second surgical opinions. (3) Employer/agent shall develop manual procedures or automated systems for administering program requirements, selecting consulting physicians, documenting employee compliance with program, and efficiently handling employee and physician contacts. (4) Fees for consultation and tests shall be paid by employer/agent if requested by employer/agent. (5) the same provisions in effect for a worker wishing to use a different physician shall be applied for cases of an opposing medical opinion. The patient shall ultimately maintain the right to accept or reject treatment, subject to the possibility of denial of benefits for refusal of said treatment. (6) Disputes resolved by ombudsman under Code 25-5-77(i). 480-5-5-.15 Bill Screening (8 pages) 480-5-5-.16 Conflict of interest: health facility ownership by a provider. (1) All providers or payors performing or making referrals of workers' compensation cases to facilities in which
the provider has an ownership interest, financial interest or fiduciary interest, shall notify the carrier, provider
or their respective agent of such interest at the request of the employer, carrier or their respective agent. 480-5-5-.17 Optometric services.(3 pages) 480-5-5-.18 Chiropractic services (7 pages) 480-5-5-.19 PT/OT/Speech therapy services (13 pages) 480-5-5-.20 Hospital services. (2 pages) 480-5-5-.21 Prescribed medications (summarized) (1) Prescribed medication services (a) "Medicinal drugs" or "drugs" defined as "legend" or "prescription" drugs prescribed by currently licensed provider authorized by law to prescribe drugs. (b) "Medicines" defined as drugs prescribed by an authorized health care provider and include generic or brand name drugs. (c) Physician or other authorized practitioner may select equivalent drug product in accordance with Code 34-23-8. (d) Reimbursement. Reimbursement follows fee schedule. Provider must use appropriate forms per rule 480-5-5-.22. (e) Reimbursement formula/methodology (1 page) 480-5-5-.22 Approved standardized medical reimbursement forms (2 pages) 480-5-5-.23 Appeals process for utilization review bill screening, peer clinical review and denial or revocation of utilization review certificate. (Summarized) (1) Adverse decisions rendered under rule 480-5-5-.08 or 480-5-5-.10 regarding medical necessity shall be subject to peer review and/or administrative appeal at the request of any part as follows: (a) peer clinical review. All UREs or employer/agents shall have in place an appeal process through peer clinical review (third level clinical review) when an adverse decision is rendered. Peer clinical review (third level clinical review) initiated by provider contacting URE or employer/agent by telephone or other immediate means following receipt of decision to be followed by a written request to include medical records and/or data needed to rech a decision. If peer clinical review (third level clinical review) is a reversal of non certification or denial, admitting physician, hospital or other provider shall be immediately notified via telephone and a follow-up letter or facsimile shall be sent to the physician, hospital, or other provider. If peer clinical review (third level review) decision upholds non certification or denial, adjudicator shall verbally notify and follow in writing the denial and case documentation to requesting party and other provider involved in the case. (b) Administrative appeal Administrative appeals may be requested by any party, by filing a letter of request with the workers' compensation division. (i) Medical dispute resolution (I) Adverse determination, resulting from the peer clinical review (third level clinical review) process, may be submitted to medical dispute resolution at the written request of any part. Notice shall be given to all parties and the dispute may be decided by an ombudsman after an informal hearing and/or an examination of the record. If the parties agree, the dispute may be presented to an ombudsman for an alternative dispute resolution hearing through the mediation process. Decisions shall be rendered within 60 days of a hearing. A party to a medical dispute that remains unresolved after a review of medical services has been accomplished pursuant to Code 25-5-77(i), may petition the circuit court for relief. Medical dispute resolution through mediation in the ombudsman program is not a prerequisite to petitioning the circuit court for a ruling. (a) The appealing party shall request a hearing on the denial or revocation within 30 days of the date of the receipt of the notice to deny or revoke. Failure to mail a request for hearing within the time prescribed shall result in the denial or revocation becoming effective 60 days from the date of mailing of the original notice In no event shall any denial or revocation become effective prior to the date that a hearing is scheduled. The department's written notice shall be by certified or registered mail to the interested parties. (b) A hearings officer shall conduct hearing on denial or revocation of a certificate, per Rule 480-1-4, and render a decision. (c) Further appeal may be petitioned with the circuit court whose jurisdiction includes the plaintiff's last known business address. 480-5-5-.24 Discharge planning procedures. 480-5-5-.25 On-site audit. (4 pages) 480-5-5-.26 Ambulatory surgery centers.(3 pages) 480-5-5-.27 Admission review procedures. 480-5-5-.28 Dental services (3 pages) 480-5-5-.29 Medical case management (1) Medical case management determination shall be the responsibility of the employer/agent unless delegated. This service may be performed in conjunction with utilization management; however, it is differentiated by its designation to promote optimal recovery and physical rehabilitation by professional involvement in the physical rehabilitation process. (2) Since medical case management is an integral component of a utilization management program, it shall, at the discretion of the employer/agent, be used as a component in the physical rehabilitation of the injured worker. The overall goal of medical case management is to facilitate the organizing and sequencing of appropriate health care services. This shall be done in the most cost effective manner without compromising quality of care in order to promote optimal outcomes for all parties involved. (3) The employer/agent is the responsible party for determining the necessity of medical case management. (4) Individuals or entities performing medical case management shall comply with the most current standards adopted by the National Association of Rehabilitation Professionals in the Private Sector (NARPPS), professional performance criteria for medical case management, which pertains to workers' compensation cases or other nationally recognized medical case management standards. (5) The dispute resolution process shall be in accordance with Rule 480-5-5-.23. 480-5-5-.30 Home health care services (3 pages) 480-5-5-.31 Pain management program (summarized) (1) Pain management program services shall receive authorization from the employer/agent prior to providing services. No health care provider may refer the employee to another pain management program without prior authorization from the employer/agent. (2) Billing information (a) proper billing forms (b) billed using total or global charge concept (c) consulting physicians or providers authorized by employer/agent must bill on appropriate forms (3) follow guidelines of Commission on Accreditation of Rehabilitation Facilities and include, but not limited to, one or more of the following programs: (a) relaxation training (b) neuromuscular training/motor education (c) behavioral counseling. (d) job simulation. (e) musculoskeletal management 480-5-5-.32 Durable medical equipment. (4 pages) Continuing Legal Education Lecture: Alabama Trial Lawyers' Association meeting, Destin, Florida, June 14, 1997
Marilyn Oakes prepared this lecture for delivery at the Alabama Trial Lawyers' Association meeting. The lecture was in two parts: Managing Unruly Case Managers and Five Keys to Exposing Weak Vocational Testimony. The addenda referenced in this lecture are the same as the addenda for the ATLA Fall 1997 Journal Article, above. A good case manager is worth her weight in gold, and so is a good vocational rehabilitation counselor. This lecture is for lawyers tired of unruly case managers and vocational experts who invent things as they go.
Managing Unruly Case Managers in Alabama Workers' Compensation Marilyn T. Oakes, CRC, LPC Certified Pain Practitioner ***THIS ISN'T LEGAL ADVICE BECAUSE THE AUTHOR IS NOT A LAWYER; HOWEVER, SHE HOPES YOU FIND IT HELPFUL, ANYWAY*** Many Alabama attorneys feel plagued by insurance-sponsored case managers. Indeed, sometimes one wonders whether one is observing a case manager, a private investigator, or an outside claims adjuster. As one injured worker (IW) described her situation, "she [the case manager] put herself over the doctor and he had to do what she said." Part of the problem is that some Alabama case managers practice something other than industry-standard case management. The Commission on Disability Management Specialists Certification (CDMSC), governing body for the Certified Case Manager (CCM) national program, formally defines case management as: ". . . a collaborative process which assesses, plans, implements, coordinates, monitors and evaluates the options and services to meet an individual's health needs, using communication and available resources to promote quality, cost effective outcomes." 1 Similarly, a functional definition of case management is "a systematic approach to identifying high risk/high cost patients, assessing opportunities to coordinate care, assessing and choosing treatment options, developing treatment plans to improve quality and efficacy of care, controlling costs, and managing a patient's total care to ensure optimum outcome."2 The National Association of Rehabilitation Providers in the Private Sector (NARPPS) promulgated a case manager code of conduct, attached as Addendum "A". All NARPPS members sign yearly agreements to follow the NARPPS code of conduct. CCMs have no such yearly obligation but must maintain concurrent certification in their respective fields, usually nursing or rehabilitation counseling, and must follow codes of conduct from coexisting certifications. Lost or suspended coexisting license or certificate means lost CCM status.3 Alabama does not define, regulate, license, test, or certify case managers, nor does Alabama require national certification. As a result, Alabama has many unruly case managers. The purpose of this lecture is to identify ten pragmatic tips to manage case managers in Alabama workers' compensation, to reduce attorney and client stress, and to improve case outcomes. NEVER accept any case manager intervention without making someone identify its legal basis. No statutory or regulatory authority exists for Alabama workers' compensation case management. Case managers may seem to dictate terms of treatment, but they do so without statutory or regulatory authority, case law, Code of Alabama 25-5-1 et. seq. (the Workers' Compensation Act), or any other law. Unless an IW or his attorney give permission, a case manager has no rights in a workers' compensation case. When attorneys strictly limit case manager activity (e.g., no access to medical records and no contact with the client, the physician, or other medical providers), case managers can work little mischief. When case managers are no longer free to act as outside claims adjusters, typically, claims adjusters close the case management files. Addendum "B-1" is an example of a nurse case manager's initial letter and "B-2" is an attorney's response. If the case manager claims special rights because she works for the employer/insurer company, then attorneys should ask themselves if they would permit special rights to a claims adjuster. Please refer to comments, below, on conflict of interest, independent professional duty, City of Auburn v. Brown, 638 So2d 1339 (Ala.Civ.App. 1993) and Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996). Until the Alabama appeals courts say differently, prudence dictates that attorneys should not grant case managers employed by insurance companies or third party administrators special rights. Determine whether an action is based on the written law or the oral tradition. Code of Alabama 25-5-77(d) requires IWs to cooperate with vocational rehabilitation. No such obligation exists toward case managers. Case management and vocational rehabilitation are distinct entities. Rehabilitation counselors may be case managers but nurses may not provide vocational services without being a Licensed Professional Counselor (LPC) under Code of Alabama 34-8A-1 et. seq.Addendum "C" shows Alabama definitions of counseling activities. Please notice 2(e)(1) and 2(e)2). Code of Alabama 25-5-77(c) defines vocational specialist as "qualified to render competent vocational rehabilitation service." Code of Alabama 34-8A-1 et. seq. defines minimal requirements and does not permit non-LPCs to render vocational services for a fee. Vocational services include job placement, job analysis, and vocational evaluation. When vocational service providers are non-LPCs, attorneys should revoke all medical authorizations and forbid any contact with the IW. Demand a legal basis for benefits termination. Strictly speaking, a claims adjuster cannot terminate benefits because an IW seeks to preserve the patient-physician relationship by excluding outside parties. However, an uninformed or ill-tempered claims adjuster may threaten retaliation or even terminate benefits. The attorney has several choices: Negotiate. The claims adjuster must provide legal authority to terminate benefits. Addendum "D" is a sample letter Bill Abell wrote when a claims adjuster suspended benefits after the IW attended an independent medical examination. Addendum "E" is a series of letters another attorney wrote, also illustrating the process. Code of Alabama 25-5-77(b) provides only the employer and employee statutory access to medical records. Code 25-5-1(4) includes insurance companies or service companies standing for the employer. Even so, case law protects the right of authorized physicians to direct medical care. (See City of Auburn) Other parties acting in workers' compensation cases must have permission from the IW or his legal representative, just as they would for any other medical patient. The claims adjuster can terminate workers' compensation benefits for only three reasons: The IW reached maximum medical benefit. The IW unreasonably refused medical treatment or examination, Code of Alabama 25-5-77(b).[See Daniel Ornamental Iron Co. v. Black, 47 Ala. App. 608, 259 So2d 291 (1971), aff'd, 288 Ala. 736, 259 (so2d 295 (11972); Avondale Mills, Inc. v. Tollison, 52 Ala. App. 52, 289 So2d 621 (1974); Scott v. Alabama Machine & Supply Co., 52 Ala. App. 459, 294 So2d 160 (1974); Sunshine Jr. Stores, Inc. v. Dower, 625 So2d 445 (Ala.Civ.App. 1993); Lewis G. Reed & Sons v. Wimbley, 533 So2d 628 (Ala.Civ.App. 1988); Cerrock & Cable Co. v. Johnson 533 So2d 622 (Ala.Civ.App. 1988); Health Care Authority v. Henry, 600 So2d 324 (Ala.Civ.App. 1992); Logging v. Colburn, 600 So2d 1049 (Ala.Civ.App. 1992); Scott v. Alabama Mach. & Supply Co., 52 Ala. App. 459, 294 So2d 160 (1974); Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So2d 1049 (Ala.Civ.App. 1985); Gulf States Steel Co., v. Cross, 214 Ala. 155, 106 So. 870 (1926); Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So2d 331 (1965); Genpack Corp. v. Gibson, 534 So2d 312 (Ala.Civ.App. 1988); Federal Mogul Corp. v. Moses, 341 So2d 162 (Ala.Civ.App. 1976); Flame Refractories, Inc. v. Cole, 539 So2d 1062 (Ala.Civ.App. 1988)] The IW refused vocational rehabilitation without a court order, Code of Alabama 25-5-57(a)(4)(d) and 25-5-77(d). If the claims adjuster alleges that the case manager provides medical treatment, then the attorney should do two things: Ask the claims adjuster or case manager to write a list of medical treatments that the case manager provides, which physician directly employs the case manager to provide the treatments, and the legal basis for the treatments. Most likely, the case manager doesn't work for the treating physician and provides no medical treatments. If the IW requires nursing services, then a home health nurse is appropriate. Rarely does a case manager provide home health nursing services. Remind the claims adjuster that Code of Alabama 25-5-77(b) identifies physicians, surgeons, and chiropractors as treating physicians. If physical therapists are not physicians [see Interstate Truck Leasing v. Bryan 537 So.2d 53 (Ala.Civ.App. 1988)] , then case managers certainly can't be physicians. Are case managers who override physicians practicing medicine without a license? Can anyone else direct medical treatment without being a physician or having a physician's order? File suit and send the defense lawyer a copy of City of Auburn. If employers cannot dictate authorized medical care, how can case managers? Petition the Court for emergency relief, using City of Auburn and the beneficent basis of workers' compensation as key arguments. If emergency relief isn't an option, then consider whether the IW can be fast-tracked through Social Security Disability. Detailed discussion of fast-tracking a Social Security Disability claim is beyond the scope of this lecture, but please contact the author at 205/967-9798 for more information. Cultivate a good working relationship with the authorized treating physician. Attorneys and physicians are not always natural allies, but case managers have made it so. Physicians are generally surprised, but pleased, at the attorney's help. Some physicians subsequently refer patients for legal assistance, when they feel patients are being treated unfairly. Many physicians are no more pleased with case manager and claims adjuster interference than are IWs and their attorneys. (1) If the IW is pleased with his authorized treating physician, then write a nice letter to the physician. Send him a copy of City of Auburn and express support for his right to direct the IW's care. (2) If the IW is not happy with his authorized treating physician, then ask for a panel of four physicians. Asking for four physicians in the same medical specialty makes it harder for the claims adjuster to manipulate the panel. After choosing a new physician, write him a nice letter with City of Auburn attached and assure him of continued support. Identify professional orientation and philosophy. For attorneys inclined to give case managers a chance (not a recommended course unless Alabama conditions improve), then a questionnaire can help identify professional training, motivation and ethical orientation. Addendum "F" is a questionnaire Allen Woodard uses for vocational counselors. Attorneys may similarly adapt a case manager questionnaire, using the NARPPS case management guidelines. The NARPPS standards are quite good, even if the case manager isn't a member, and ethical practitioners won't mind questions. Ask case managers to submit their codes of ethics and standards of practice, including state nursing or counselor licensure. Ask case managers to list published case management texts they favor, e.g., would they agree that A Guide to Rehabilitation by Deutsch and Sawyer is a definitive publication? Once they submit a list of credible authorities, hold them to the standards. Identify the chain of command and collect all case management documents. Insurance companies and third party administrators that own rehabilitation companies or directly employ case managers have potentially huge conflicts of interest, issues not yet addressed in Alabama courts. Attorneys should always know who owns the case management company, the entire chain of command, and who makes final case management decisions. Claims adjusters' goals are often incompatible with good case management and rehabilitation practice. A case manager can't force a claims adjuster to act in the best interests of the IW, but must nevertheless advocate the needs and rights of the disabled person. Case managers are rarely the final decision-makers, and in event of conflict, should have meticulous notes answering the "journalism" questions - who, where, what, when, why, and how much money. Case management notes can be revealing, especially if a tort claim arises. What is not documented is often as telling as the documentation. In large companies, case managers are usually the end of a long chain of command. One should not be surprised to find claims adjusters supervising case managers. After collecting the documents, ask the case manager to explain, in writing, any irregularities, then ask her to write a letter stating that she will put the needs and rights of the IW first. Ask her when rehabilitation goals conflict with claims goals, will she consider the needs and rights of the IW or the goals of the claims adjuster and her own job security? Her response will probably reveal everything an attorney needs to know. Remind case managers that they owe independent professional duties to IWs. Standard rehabilitation ethics dictate that the disabled worker is always the client, no matter who pays the bills. Ask the case manager to file a detailed management plan for attorney inspection and approval. Even if the case manager works directly for the employer/insurer, she has an independent duty to the IW, separate and apart from her employer. A plant nurse in Iowa rediscovered her duty the hard way. In Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996), the jury awarded $15 million, which the Court reduced to $2 million. The Iowa Supreme Court held that "(1) employee's claims for breach of fiduciary duty and defamation fell outside the scope of remedies available under Workers' Compensation Act and district court could properly exercise jurisdiction (2) jury question existed as to whether fiduciary relationship existed between employee and nurse (3) jury question existed as to whether nurse's statements to physician were slanderous per se; (4) evidence supported general verdict to $4,000 as compensatory damages on defamation claim (5) 'substantial truth' defense was not applicable (6) substantial evidence support submission of punitive damage claim to jury; and (7) punitive damage award of $15 million was excessive, but award of $2 million was supported by record." Mr. Wilson hurt his back while working for IBP, a self-insured company. Diane Arndt, a registered nurse at IBP, managed occupational health services at the Council Bluffs plant. She coordinated workers' medical care, treatment and recovery, including overseeing work restrictions, monitoring conditions, making doctor's appointments and overseeing OSHA logs. The Iowa Supreme Court found that Mr. Wilson's claims against the company for breach of fiduciary duty and defamation, arising from Ms. Arndt's statement to the treating physician implying that Mr. Wilson was faking his on-the-job back injury, fell outside the scope of remedies available under workers' compensation act. Exclusive jurisdiction of the workers' compensation industrial commission did not apply and the court had proper subject matter jurisdiction. Iowa case law has no direct bearing on Alabama, but the arguments that persuaded the Iowa courts describe many case management abuses in Alabama. Case managers, whether nurses or rehabilitation counselors, have independent professional duties to the IW, separate and apart from duties to employers. Discover case management files and institute continuing discovery of any future paperwork. Case managers may not want to produce files, but the files can be revealing. Max Cassady writes standard letters forbidding contact with his clients, then gives case managers the choice of surrendering the files or facing litigation.4 Consider hiring a skilled, ethical case manager. Especially if the medical aspects are catastrophic (e.g., brain injury, spinal cord injury) or complicated (e.g., chronic pain), a case manager can streamline attorney management. A counselor-case manager can also help attorneys communicate with cranky patients and their families. A life care planner can often do double duty managing cases, and a life care plan is an excellent means to quantify damages. A good case manager can help establish and clarify the medical baseline, manage family concerns, organize and arrange medical services, locate tax-funded resources to supplement insurance coverage, translate doctor-to-lawyer and lawyer-to-doctor, obtain orders for insurance-sponsored care, and clarify complex medical issues. Insurance companies and third party administrators spend thousands on routine case management, but often, such activity is unnecessary and provides nothing that the IW that he can't do for himself. A skilled case manager can force accountability, usually with a few strategic telephone calls and an occasional pertinent letter. Good independent case managers can greatly assist attorneys. Use existing national standards of practice and codes of ethics. Besides NARPPS, the Alabama Nursing Board and the American Nursing Association have standards for Registered Nurses. Physical therapists and Occupational Therapists have state and national boards. Yet another board governs Certified Rehabilitation Registered Nurses (CRRN). Other groups with written standards include the Alabama Board of Examiners in Counseling for LPCs, the Commission on Rehabilitation Counselor Certification for Certified Rehabilitation Counselors, the Certified on Disability Management Specialist Certification for Certified Disability Management Specialists, and the Vocational Evaluation and Work Adjustment Association for Certified Vocational Evaluators. All these standards provide fodder for discovery, scrutiny, and cross-examination and, potentially, tort claims. If the case manager wrongdoing is extreme, then consider tort litigation. Besides case managers, potentially-actionable behavior occurs among rehabilitation counselors, and functional capacities evaluators. Alabama attorneys may find existing codes of ethics and standards of practice helpful in third party actions, since defining standards of care and breaches to standards are keys to tort claims. Additionally, the Alabama workers' compensation code has "beneficent purposes,"5 a concept seemingly unknown among many Alabama case managers. The standard case manager professional liability policy limits are $1 million/$3 million and Wilson v. IBP and Arndt et. al. is the tip of the iceberg. Of the three Alabama rehabilitation tort-related cases litigated through the appeals process, two defendant case managers have won on summary judgment and one defendant rehabilitation counselor lost at trial, resulting in a $155,000 jury award. In another case, a federal jury in Georgia awarded $261,400 for negligent job description and malpractice. Several case manager suits have been settled, with settlements sealed. (See Addendum "G".) Case management litigation is problematic, because so many case managers and claims adjusters communicate by metaphorical winks and nods. However, a skilled, ethical case manager can help with discovery, strategy, and trial preparation. Detailed discussion of rehabilitation-related torts is beyond the scope of this lecture, but please contact the author at 205/967-9798 for more information. In summary, Alabama case managers often neglect the needs and rights of IWs by ignoring existing standards of practice and professional ethics. However, by taking a few steps to manage the unruly case managers, Alabama attorneys can reduce stress to clients and improve case outcomes. Alabama attorneys may take limiting steps with rehabilitation counselors and functional capacities evaluators, but those suggestions are beyond the scope of this lecture. FOOTNOTES Mullahy, Catherine, The Case Manager's Handbook, Gaithersburg, MD: Aspen Publications, 1995, p. 9. Foundation for Rehabilitation Certification, Education and Research, Case Management Practice, Rolling Meadows, Illinois: 1993, p. 4. Commission on Disability Management Specialist Certification, CCM Certification Guide with Application, Rev. 1995, Rolling Meadows, Illinois: Author, 1995, pp. 2-9. Cassady, Max. "Deposing Carrier Physicians in Workers' Compensation Cases: Using Reference Works to Reduce the Physician's Bias In Favor of the Defense." Lecture delivered at Crested Butte ATLA meeting, November 1995. Alabama Department of Industrial Relations, Alabama Workers' Compensation Law Annotated, 1994 edition, Charlottesville, Virginia: The Michie Company, 1995, p. 14. "The workmen's compensation laws are remedial in nature and are to be liberally construed and applied in order to effect their beneficent purposes." Hilyard Drilling Co. v. Janes 463 So.2d 942 (Ala.Civ.App. 1985); Middleton v. Dan River, Inc. 617 F. Supp. 1206 (M.D. Ala. 1985), modified, 834 F. 2d 903 (11th Cir. 1987). FIVE KEYS TO EXPOSING WEAK TESTIMONY WHEN DEPOSING VOCATIONAL EXPERTS Marilyn T. Oakes, CRC, LPC Board-eligible, American Academy of Pain Management ***THIS ISN'T LEGAL ADVICE BECAUSE THE AUTHOR IS NOT A LAWYER; HOWEVER, SHE HOPES YOU FIND IT HELPFUL, ANYWAY*** Many attorneys take vocational depositions without fully exploring the complexities of vocational evaluation and rehabilitating counseling. The purpose of this lecture is to identify five potential problem areas where vocational experts' (VEs') weaknesses may neutralize or dilute their testimony. Attorneys should consider these weaknesses in any VE, including their own. Education and training. A. Rendering vocational services for a fee without a proper license. (1) One may not render vocational services for a fee, including job placement and vocational evaluation services, without being a Licensed Professional Counselor (LPC) under Code of Alabama 34-8A-1 et. seq. While vocational evaluation is not specifically mentioned in the definitions, one cannot perform a vocational evaluation without doing the tasks defined as counseling. (See Addendum "C".) The Alabama Board of Examiners in Counseling (ABEC) governs LPCs, including vocational rehabilitation counseling. (2) Nurses, physical therapists, and occupational therapists do not ordinarily have formal academic vocational training. Rehabilitation counselors in CORE-accredited programs have significant academic vocational training, including job placement, job analysis and vocational assessment. State professional practice definitions for PTs, OTs and RNs are in Addendum "C". When confronted by non-LPCs providing job placement, job analysis, and vocational testimony, attorneys should challenge their credentials and invoke Code of Alabama 34-8A-1 et. seq. Legal standards notwithstanding, at least one Georgia nurse testified about vocational matters. [See M.C. Dixon Lumber v. Phillips 642 So2d 477 (Ala.Civ.App. 1994 )] (3) Code of Alabama 25-5-77(c) requires "a vocational rehabilitation specialist, who shall be qualified to render competent vocational rehabilitation service." How can someone with no formal vocational training and no counseling license meet that definition? Attorneys should dispute suspect vocational qualifications and file for emergency hearings, if necessary. Code of Alabama 25-5-77(e), states "All disputes with regard to vocational rehabilitation may be submitted to the court for resolution." Generic counselors practicing rehabilitation counseling without training. Many counselors graduate in agency counseling or school counseling, then enter private rehabilitation practice without formal training in the complex issues of disability. CORE is rehabilitation's equivalent to the American Bar Association. Attorneys should challenge credentials if the putative VE doesn't have a bonafide rehabilitation degree from a CORE-accredited program and national board certification as a Certified Rehabilitation Counselor (CRC) or Certified Vocational Evaluator (CVE). Alabama schools granting CORE- accredited rehabilitation degrees include: Auburn University, University of Alabama-Birmingham, and the University of Alabama. Rehabilitation counselors abusing rehabilitation counseling standards. The Commission on Rehabilitation Counselor Certification (CRCC) and CORE postulated standards, attached as Addendum "H." The National Association of Service Providers in Private Rehabilitation (NARPPS) also formulated standards for rehabilitation counseling (see Addendum "A"). Did the VE adhere to any standards? If not, then why not? Did the VE consider all the medical testimony? Did he pick and choose among the doctors? Did he ignore pre-existing disabilities that combine with the work injury to cause total disability? [See Tarver vs. Blue Diamond Rubber Company 664 So2d 207 (Ala.Civ.App. 1994)] Did he ignore factors because he doubted causation? Did the VE abuse roles reserved to the Court, e.g., assessing causation, client credibility, finding facts, or selectively excluding experts? If the VE apportions between work-related and non-work-related, then can he tell attorneys how to send the disabled person back to work without the offending condition or syndrome? Out-of-state counselors without LPC. Unlicensed out-of-state counselors may be otherwise-qualified, but if they work in Alabama longer than 30 days yearly, then they must have LPC. (See Code of Alabama 34-8A-1 et. seq. and Rules and Regulations of the Alabama Board of Examiners in Counseling.) Alabama has no automatic reciprocity with any state or national organization. Alabama does not extend automatic reciprocity to the National Board of Certified Counselors (NBCC) , despite NBCC automatically recognizing Alabama's LPC. Alabama recognizes CRCC continuing education credits, but does not extend reciprocity to CRCC. As a rule of thumb", if the counselor is from out-of-state, then attorneys should object to their appearance until they produce an Alabama license. "Psychovocational" evaluations. A few entrepreneurial licensed psychologists are using vocational computer software to render opinions in "psychovocational" evaluations. No such thing as "psychovocational" evaluation exists in standard rehabilitation practice. Generally, taking the psychologist on voir dire reveals little background and experience helping disabled people find work and no formal training in vocational rehabilitation. Can he produce literature on "psychovocational" evaluation standards? (Very unlikely.) Is he familiar with labor markets? Did he graduate from a CORE-accredited rehabilitation program? How did he calculate his ratings? How does his computer program select factors? What do those factors mean in the world of work? Distant, inadequate, or inappropriate work experience. Where has the vocational expert (VE) worked? Has the VE recently carried a case load? Has the VE worked directly with disabled people in job placement and vocational training? Was the VE trained on the job by an insurance claims adjuster? If the VE worked for state Vocational Rehabilitation Services, then did he have a CORE-accredited rehabilitation degree or did he get his job when state VRS didn't require formal rehabilitation training? If he was trained on the job, then who trained him? How many hours did his training last? What format? Who taught him his methods for assessing disability percentages? Does the VE have any conflicts of interest that might affect objectivity? Does the VE work directly for an insurance company or is his rehabilitation company owned by an insurance company? Who supervises the VE? Does a claims adjuster directly supervise the VE or is a claims adjuster above him in the chain of command? Failure to consider real jobs instead of theoretical, sheltered, or protected work. The definition of employability in Alabama is "quality, quantity, and dependability such that a reasonably stable labor market exists." [See Keen vs. Showell Farms 668 So2d 783 (Ala.Civ.App. 1995)] Does the VE talk to employers about their hiring needs and the trends in the local labor market? Does the VE use computer-generated data without checking local hiring? Does the VE track statistical data about global labor market trends affecting local labor markets (e.g., General Agreement on Tariffs and Trades, North American Free Trade Alliance, Americans with Disabilities Act)? Does the VE correctly apply functional capacities test data to the world of work? Does the VE correctly classify work according to the U.S. Department of Labor standards in the Revised Handbook for Analyzing Jobs? If the IW has returned to work or if the employer wants the IW to return to work, then job details are crucial. DO NOT rely on job descriptions done by non-LPCs, non-CRCs or -CVEs. "Made up jobs" do not invoke the wage provision of Code of Alabama 25-5-57(a)(3)(i). (See Keen v. Showell Farms). Job analysis by a competent LPC with CRC or CVE, plus videotape is helpful. Questions to determine if work information is real or theoretical include the following: How long has the worker successfully worked? How long will the job last? Is the job seasonal? [(See M.C. Dixon Lumber v. Phillps)] Can he obtain the same or similar job in the open labor market? Does the same or similar job exist in the open labor market? Is the worker doing productive work or is he merely in the workplace? [See Sumiton Timber v. Anderson, 620 So.2d 54 (Ala.Civ.App. 1993)] How many hours does he work weekly and how many hours are regularly available for work? Can the worker perform the duties and meet job demands alone or does he need help? If the job has been accommodated, then are the accommodations quickly, easily, and readily transferrable to new situations at a new employer? If the job has been accommodated, then are there any other jobs like it at other employer? If the job has been accommodated, then is it likely that worker could obtain a similar job upon application at another employer by asking for similar accommodations? How much does he earn compared to what similar work is worth at other employers. (e.g., clerical worker was paid the same wages [$40,000 yearly] that he made while working production; he is highly unlikely to earn $40,000 as a clerical worker for any other employer.) Is it a real, productive job or is it a collection of busy work? If the worker were not doing the job, then would someone else be hired? If not, why not? Would the replacement worker do the job in the same manner? Are any skills required to do this job? Is there any transfer of skills in the open, competitive market? Has the job been automated in the industry? If not, then does the technology exist to automate the job within five years? Does the job exist in quality, dependability, and quantity such that a reasonably stable market for it exists? [See Brunson Milling Co. v. Grimes, 267 Ala. 395, 400, 103 So.2d 315, 318 (1958) (quoting Lee v. Minneapolis Street Ry., 230 Minn. 315, 320, 41 NW 2d 433, 436)(1950)] Is the worker able to secure and perform profitable employment?[See Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 27 So2d 215, 219] 4. Training fraud. Code of Alabama 25-5-77 (c) entitles IWs to vocational training under two circumstance: The employer elects to offer it. The IW requests it and a treating physician and a vocational rehabilitation counselor render opinions that vocational rehabilitation is likely to return the worker to gainful employment. Unfortunately, one sees "training" offered (usually at the 11th hour before a trial, several years post-accident) that is, at best, unwise and, at worst, overtly fraudulent. Generally, when VEs offer fraudulent training, they either haven't considered legitimate training or they can't think of anything legitimate. The training may be a ploy to terminate workers' compensation benefits under Code of Alabama 25-5-57(a)(4)(d) and 25-5-77 (d) if IW refuses, or to avoid permanent total disability without preparing IW for a new job. In Ex Parte Beaver Valley Corp 477 So.2d 408 (Ala. 1985), the Alabama Supreme Court listed factors to consider in vocational training. "Gainful employment means employment similar in remuneration to that earned prior to the injury. Implicit in this is that the gainful employment sought to be restored must be 'suitable'. By 'suitable' we mean employment which is compatible with employee's pre-injury occupation, age, education, and aptitude. . . .In making its determination, the trial court should also consider the type of work done by the employee at the time of the injury, his vocational aptitude, his physical and mental abilities, and such other factors as the court may deem relevant." Beaver Valley at 412[6] and [7]. Following are some tips to identify training programs that may not be in the best interests of the IW: "similar in remuneration" "comparable income" Substantial wage loss after training is not similar remuneration. When evaluation wage potential, look at several employers. Look at a group of employers hiring workers to do the proposed work and especially look at the geographic area. The U.S. Department of Labor Office of Workers' Compensation Programs defines "labor market" as the 35 mile radius of the IW's home, and is a reasonable standard. Standard metropolitan statistical areas (SMSAs) are also reasonable. "pre-injury occupation" Does any relationship exist between the work done before the injury and the proposed training? Do any avocational interests suggest that IW is trainable in the new area? "age" In general, if an IW is under 50, then age is a neutral factor. If IW is over 50, then the territory is less well-defined. IW may have significant work adjustment issues - e.g., adaptation to differences in work processes, co-workers, production, or supervision. If IW is over 50 and has a history of skilled, literate work, then age should not prohibit training. If IW is over 50 and has been an illiterate manual laborer, then finding appropriate training may be impossible. A history of information-processing is important if the VE expects IW to process information while retraining. "education" Ask IW how many years of school he completed, how many years he repeated, if IW took special education, and if IW went through vocational rehabilitation classes, especially for mental disability. Literacy levels are more important than years of education. If one is illiterate, then the years spent in school don't matter much. Literacy is especially important if the school socially promoted IW because of age or athletic ability. "aptitude" The VE should have vocational test data supporting the proposed training: dexterity, IQ, general aptitudes, and literacy. The test data should match the Dictionary of Occupational Titles minimum aptitudes in the proposed field. "physical and mental abilities" Having a valid IQ score is very important in assessing training capability. Some IWs can be rehabilitated and some cannot. If doubts exist about IW's ability to successfully retrain, then put him in a training program and postpone settlement until IW has had a fair chance to prove the merits of the program. CAUTION: IW must give a good faith effort! Make VEs write their recommendations, then make them fully explain and defend anything they propose to do. [See International Rehabilitation Associates (Intracorp) and Tammy L. Bradly v. Adams.613 So.2d 1207 (Ala. 1992) ] Attorneys should require VEs to write individual worker rehabilitation plans (IWRPs) for each proposed training program. Workers' compensation IWRPs aren't statutory in Alabama, but are standard rehabilitation practice and common sense tools. IWRPs help keep training on target by quantifying goals, steps, timetables, and costs. If, by chance, the VE plans inappropriately, then IWRPs often illustrate the flaws. IWRPs should answer the "journalism" questions: who, where, what, when, why, and how much. Major topics include expected limitations, specific vocational goal, vocational test data to support goal, training site, length of program, cost of program, expected wages, labor market feasibility, chronology, and plan feasibility. Attorneys who have never seen IWRPs should drop us a note and we'll send a sample. Always require vocational testing for training plans. Test data help predict IW's chances for success. Minimum vocational testing include IQ, aptitudes (General Aptitude Test Battery or similar), interest profile, and dexterity. A qualified test-giver should have a CORE-accredited master's degree and CRC or CVE. Labor market feasibility should include the local labor market, not one employer. Look carefully at the specific vocational goal. "On job" training is fine, if a real job exists. OJT for "make work" is still "make work." (See Keen v. Showell Farms) Age less than 50 is not especially a factor. Age over 50, look very careful at the worker's background. An illiterate, manual laborer over age 50 usually isn't a good candidate for vocational training. Low IQ is a serious factor at any age. Some can function only as manual laborers and can't be "rehabilitated" to light or sedentary competitive work. Others can work in a sheltered setting, but not in the competitive workplace. (See Sumiton Timber) In general, IQ below 90 does not predict success in academic training; IQ of 100 or more is usual for junior college or technical training. "On job" training to scrutinize carefully (sample potential problems in parentheses): jewelry or watch repair (literacy, IQ and dexterity); carburetor, alternator, starter repair (make work, labor market, dexterity); telephone bench work repair (make work, labor market); dental lab repair (literacy, IQ, dexterity); computer repair (literacy, IQ); any bench work (make work, labor market); any training that splits off work from another job description (make work, labor market). If reason doesn't prevail in negotiations, then attorneys should assemble vocational facts and dispute the training plan under 25-5-77(e). 5. Computer Programs, Averaging Percentages, Labor Market and Vocational Hearsay. Computer programs search job data bases by many different factors. Many VEs don't understand how a computer program searches or how the different searches have different meanings. Some VEs ask their secretaries to do the searches instead of doing the work themselves. As with any computer program, data input is crucial to computer results. VEs can easily manipulate vocational computer programs. Ask the VE to explain, in detail, how his program works, then sit him down at the computer keyboard, under oath, and let him demonstrate. One VE described the process as "feeding data into the machine and then it goes 'ding, ding, ding' and gives you the answer." Computer data analysis of rehabilitation problems is a little more complicated than "ding, ding, ding." A common Alabama VE mistake is averaging percentages of different mathematic sets. Some attorneys suspect that the reason for averaging percentages is to artificially lower the amount awarded. No Alabama or national rehabilitation standard exists for averaging percentages of two different things. The VEs take a percentage of loss labor market access and a lost wages percentage, add them, then divide by two. (Some VEs use three factors, which is also incorrect.) Doing so violates the rules of mathematics because one can't average percentages of unlike mathematic sets. The proper way to demonstrate percentages of unlike mathematic sets is to construct a range. X% is one end of the range and Y% is the opposite end. Did he have statistics in college? Does he remembers the rules for combining percentages? Ask him if he learned the combining- percentages formula [(X + Y)/2 x 100 = Z%] in rehab school. (He didn't.) Where did he learn the combining-percentages formula? (Most likely, from a claims adjuster.) Who invented the combining-percentages formula? (No one admits it.) One can collect labor market information in several ways, but some of them are hearsay. By eliminating vocational hearsay, attorneys eliminate much of the offending opinion. VEs are subject to the hearsay rule unless they produce written information. Here's how to tell the difference: The vocational expert has personally done the job, e.g. secretary, waitress, etc. Attorneys should always ask VEs if they have ever had a real job. Many VEs went from college to graduate school to carrying a rehabilitation caseload without ever having worked in an office, a business, or a factory. VEs with such narrow experience often don't have much practical information and may not have a clue what the labor market is really like. Speculative job placements may have many flaws. Testimony about jobs personally done is direct testimony and not subject to hearsay rules. The VE has watched and/or interviewed someone doing the job, such as a site survey or job task analysis. Time spent in business or manufacturing environments is valuable. Often, VEs collect job descriptions that they can produce as samples of their work. Irrational vocational opinions are usually because VEs lack sufficient exposure to the world of work. Testimony about job analysis is direct testimony and not subject to hearsay rules. However, testimony about someone else's job analysis (e.g. insurance nurse) is hearsay. The VE went to the library and compiled statistical data about hiring practices, jobs and wages in the local area. VEs should produce the written documents or else what they read is hearsay. Written records are subject to the business record exclusion to the hearsay rule. Some VEs use computer services that purport to do this kind of research for the VE. Some computers print years' old information or really silly jobs (sandwich board carrier, movie extra, and show girl are three of our favorites), which represents garbage in, garbage out. Many VEs "lose" the offending printouts but keep the statistical data. Make VEs produce the entire printout. Without the printed data to fall within the business record exclusion to the hearsay rule, the computer information (including statistics) is hearsay like any other hearsay. The VEs aren't doing their own research and may not even have a clue how the computer draws its conclusions. The computer is testifying, not the VE. Computer hearsay is no more admissible than any other kind of hearsay. And sometimes the VEs' secretaries operate the computer to produce the hearsay, not the VEs. The VE has called employers, even a temporary service, and believes IW can do at least a zillion jobs, all of which allegedly pay big bucks. The VE hasn't written any of this down and we are left guessing where the information originated. Without written information identifying the sources and allowing attorneys to verify the data (which invokes the business record exclusion to the hearsay rule), the employer information is hearsay like any other hearsay. The VEs aren't doing their own research. The VEs are relying on what someone told them. The author hopes her comments have helped to demystify the rehabilitation counseling and vocational assessment errors commonly seen in Alabama workers' compensation. Attorneys who want our free educational newsletter should write us at Rehabilitation Consultants, Inc., P.O. Box 43254, Birmingham, Alabama 35243, 205/967-9798, fax: 205/970-0487 email: marilyn@oakes.org (or) barry@oakes.org web page: http://www.oakes.org/ Managing Unruly Case Managers II: UpdateFollowing is a copy of an August 16, 1996 memorandum from the State of Alabama Department of
Industrial Relations' Chief of the Workers' Compensation Division, regarding Utilization Review and Bill Screening
Administrative Rules. Our comments follows the quoted document. AND WE QUOTE: To: Self-insured Employers Self-insured Group Funds Insurance Carriers Third-party administrators Utilization Review From: Scottie Spates (signature on copy) Chief, Workers' Compensation Division Subject: Utilization Review and Bill Screening Administrative Rules In accordance with Code of Alabama, 1975, Section 25-5-293(k), the Department has filed for adoption Rules 480-5-5-.01 through .32, Utilization Review and Bill Screening. These Rules will be effective September 12, 1996. Utilization review and bill screening may be implemented, but is not required. If utilization review and bill screening is performed, Code of Alabama 1975, Section 25-5-293(g) requires such services be performed by qualified individuals or entities. Any self-insured employer, self-insured group fund, or insurance carrier that does not choose to perform utilization review and bill screening is requested to advise this office in writing no later than September 12, 1996. Each self-insured employer, self-insured group fund, insurance carrier or utilization review company that will perform utilization review and bill screening should submit a written request for an application no later than September 12, 1996. Applications should be completed and returned by November 12, 1996. It is the Department's goal to qualify all applicants that are currently providing workers' compensation claims service no later than January 1, 1997. Alabama Department of Industrial Relations Administrative Code Rule Division: Workers' Compensation Chapter: Utilization Management and Bill Screening Page: 1 of 1 480-5-5-.29 MEDICAL CASE MANAGEMENT (1) Medical case management determination shall be the responsibility o the employer/agent unless delegated. This service may be performed in conjunction with utilization management; however, it is differentiated by its designation to promote optimal recovery and physical rehabilitation by professional involvement in the physical rehabilitation process. (2) Since medical case management is an integral component of a utilization management program, it shall, at the discretion of the employer/agent, be used as a component in the physical rehabilitation of the injured worker. The overall goal of medical case management is to facilitate the organizing and sequencing of appropriate health care services. This shall be done in the most cost effective manner without compromising quality of care in order to promote optimal outcomes for all parties involved. (3) The employer/agent is the responsible party for determining the necessity of medical case management. (4) Individuals or entities performing medical case management shall s\comply with the most current standards adopted by the National Association of Rehabilitation Professionals in the Private Sector (NARPPS), professional performance criteria for medical case management, which pertains to workers' compensation cases or other nationally recognized medical case management standards. (5) The dispute resolution process shall be in accordance with Rule 480-5-5-.23. Author: Workers' Compensation Division Statutory Authority: Code of Alabama 1975 25-5-293 History: Effective September 12, 1996 END OF QUOTE Significance: This administrative rule is interesting from several standpoints. 1. The rule fails to account for existing case law stated in City of Auburn v. Brown, 638 So2d 1339 (Ala.Civ.App. 1993). The Court of Civil Appeals said the treating physician is in charge. We doubt that it will be long before someone challenges this rule in court. The Court of Civil Appeals has also said that a physical therapist is not a physician. See Interstate Truck Leasing v. Bryan 537 So.2d 53 (Ala.Civ.App. 1988). Will the Court say that administrative rules supersede case law? Or that a case manager has more clout than a physical therapist or a physician? Where is the line between utilization review and telling the doctor or therapist what to do? Is utilization review claims adjusting or medical treatment? Is case management utilization review or medical treatment? Enquiring minds want to know. 2. The NARPPS rules are considerably better than what one ordinarily sees in Alabama workers' compensation case management. Every attorney representing injured workers should draw up a letter agreement, send it to the proposed case manager and require them to swear that they have read the attached NARPPS guidelines and agree to abide them, including the injured worker advocacy portion. 3. The case manager still has an independent duty to the injured worker, separate and apart from any duty to the employer/insurer. See Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996). 4. The case manager is obligated to disclose any conflicting loyalties or competing contingencies to the injured worker. See Aubrey Adams v. International Rehabilitation Associates (Intracorp) and Tammy L. Bradly, 613 So.2d 1207 (Ala. 1992), the first such successfully-litigated case in the U.S. 5. Code of Alabama 34-8A-1 et. seq. is still in place and requires LPC for rendering vocational services, including job placement. Non-LPC case managers break the law daily in Alabama WC. 6. We think life is about to get interesting for any Alabama case manager who cannot defend their activities by accepted national guidelines, NARPPS or otherwise. This administrative rule obligates case managers to the beneficent purposes of Act and simplifies tort litigation for failing to comply. 7. To get on the DIR mailing list for future such rules changes, please mail $12 and a written request for Advance
Notice of Rulemaking Procedures to: Alabama Department of Industrial Relations, Finance Division, ATTN: Central
Cashier, 649 Monroe Street, Room 228, Montgomery, AL 36131. If you want the current DIR Administrative Code, please
send $35 to the same address. Rehabilitation Consultants, Inc.Barry & Marilyn OakesP.O. Box 672257 MARIETTA, Ga. 30006 404.627.2004 Fax:: 404.506.9067 email: marilyn@oakes.org ( or ) barry@oakes.org |
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