Illinois Employee Classification Act: Construction Workers, Proposed Rule Changes


The Illinois Employee Classification Act provides that individuals performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the criteria specified in the Act. If a contractor has misclassified individuals as independent contractors, the Department may assess civil penalties and seek other remedies provided for in the Act.

See link for an overview of the Act’s definitions and prohibitions .

The Act addresses a known practice in the construction industry of contractors misclassifying individuals as independent contractors in order to avoid payroll taxes, unemployment insurance contributions, workers' compensation premiums and minimum wage and overtime payments.

For the purpose of ensuring that all Illinois contractors comply with Illinois tax and employment laws, the Illinois Department of Labor, the Illinois Department of Employment Security, the Illinois Department of Revenue and the Illinois Workers' Compensation Commission will be sharing any information on employers suspected of misclassification of employees as independent contractors.

The Department of Labor issued new proposed rule changes for the act 6/26/08 in response to recent public comments and recent departmental experience. The hearings on proposed rules will be heard before the Joint Committee on Administrative Rules.

Questions regarding proposed rule changes, contact Carmela Gonzalez at 312-793-1808.

Chicago Workers Compensation Attorneyshttp://wc-chicago.com 7-28-08


Overfunding Workers Comp Medicare Set Aside Accounts with No Appeal Rights


The National Alliance for Medicare Set-Aside Professionals (NAMSAP) issued a recent letter 7/2/08 directed to CMS listing grievances in the CMS review approval process for Medicare Set-Aside Allocation (MSA) proposals. The very real concern for all parties is that these MSA approval decisions are final. There exists no appeal process from the final administrative decisions regarding MSA future medical funding. It has been stated that MSA proposal reconsideration submissions (the only current process available) have been met with resistance and/or were generally ignored.

For the sake of brevity, the short list of pressing concerns is paraphrased below:

1. INCLUDING NON- MEDICARE ITEMS OR TREATMENTS: Recent MSA approvals are routinely requiring funding for non- Medicare items or treatments which would not be covered by Medicare nor for which the workers compensation insurance carriers would be liable under the state workers' compensation laws.

2. APPLYING STANDARDIZED NATIONAL PRICING: CMS has applied their own standardized national pricing for some procedures, such as Spinal Cord Stimulators, without regard to actual price levels in the state of injury, locale of the injured worker or the relevant state Workers Compensation Fee Schedule. The result is that the national pricing is either too high or too low in funding recommendations for the MSA.

3. UPCODING OF CPT CODES for some treatments that result in higher MSA funding costs. An example was given of upcoding historically accurate 99213 office visits to 99214 office visits. It is alleged that this upcoding occurs as well on MRI's (adding in with contrast codes, instead of standard without contrast code, and x-rays (changing historical 2-3 views to 4 views). By "upcoding", the WCRC is not pricing the MSA pursuant to the amount which Medicare or the insurer would have actually otherwise paid.

4. HIGHEST ONLINE PRICING FOR MEDICAL EQUIPMENT: not the average price at which the equipment can be purchased and the high pricing is often contrary to the relevant state WC fee schedule. In some cases CMS required full MSA funding for all of the following: a cane, a walker, a manual wheelchair, and an electric wheelchair even though Medicare would not actually cover or pay for all those items under their own coverage guidelines for an actual Medicare Beneficiary.

5. ACCEPTANCE OF IME REPORTS only when they recommend increases for medical treatment exceeding the recommendations of the treating physician. Conversely, CMS will not accept the IME opinion reports if they recommend less treatment than that recommended by the treating physician.

6. IDENTICAL CASES NOT GIVEN THE SAME MSA FUNDING APPROVAL. Although the irregularities listed are not claimed to occur in all cases, eliminating variances would help in preparing future MSA proposal estimates for ready approval.

7. IGNORING LIMITATIONS UNDER STATE WORKERS' COMPENSATION LAW: The obligations of the WC employer or insurer for payment of injury related medical expense is defined by that particular state’s workers' compensation law, but that liability or limitations of liability of the employer under their state’s law is routinely ignored by CMS when assessing MSA proposals effectively denying the employer or insurer due process and substantive rights.

A copy of the 7/02/08 letter by the NAMSAP Board of Directors is available here at the following link: NAMSAP Letter (http://www.gouldandlamb.com/files/NAMSAP_Position_Letter.pdf)

The hopes are that CMS will now address these consensus problems that have been increasing the overall cost of MSA approval amounts and ultimately, increasing the overall cost of Workers Compensation settlements.

In discussions with local MSA attorneys in Chicago, the unanimous complaint mentioned is the extended delay time in obtaining prior Medicare “conditional payment” amounts in order to finalize any reimbursement claims.

From our perspective, the concern remains that CMS/ MSA approval amounts do not correlate with or reflect the actual “compromise” value of the workers compensation settlement.

While workers compensation claims often remain disputed in significant respects and settlement dollars usually represent real “compromise” figures pricing in the value of disputed issues, CMS continues to require 100% funding of MSA future medical accounts for anticipated treatment even where that medical treatment itself may remain disputed and/or even where the injured worker is only receiving 50% or less of the full value of the claim. The proportional disputed “compromise” values of disputed issues are not reflected in the MSA account approval amounts.

While workers compensation carriers should not be able to pawn off related future medical expense onto Medicare and the taxpayer, the employers and work comp insurance carriers should not be required to pay for more than their fair share of liability for open medical rights or expenses under the workers compensation claim any more than if that claim had remained open.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 7-21-08


Illinois Workers Compensation Medical Fee Schedule proposal for Outpatient Services

The Illinois Workers' Compensation Commission Medical Fee Schedule and the payment guidelines were adopted in 2005 for a statewide comprehensive Workers Compensation Medical Fee Schedule broken down by Illinois zip codes. The maximum allowable payment for a particular medical procedure, treatment or service covered under the Workers Compensation Act is now set in a schedule based on the historical charges for locations throughout the state from 2002 to 2004, cost adjusted for inflation. Historical charges were analyzed and broken down by the 3 number geozip or 1st three numbers of a zip code, i.e., 606—for Chicago. Generally, the reimbursement rates are set at 90% of the 80th percentile of actual historical charges provided for treatment in a specific area zip code. The Illinois medical fee schedule is one of the most comprehensive fee schedules for any state workers compensation program.

The new medical fee schedule rules cover all medical care rendered on or after February 1, 2006. The medical fee schedule sets forth the caps or maximum limits for payment of medical invoices based on particular medical procedure code, the date of service and the location (or zip code) where the medical care is rendered.

The amounts payable to a medical provider under the fee schedule is set out as the lesser of the Fee Schedule amount, the actual billing charge or a controlling "negotiated rate" as established by negotiated provider contract with the medical provider. An established contract between the insurance carrier or employer will control over amounts set forth in the schedule.

Inpatient Hospital charges and Physician Professional charges are listed in specific amounts in the fee schedule. Special rules apply for add-on or pass through charges for hardware, instrumentation and medical devices.

The Commission is currently working on adopting a fee schedule for hospital outpatient charges and ambulatory surgical fee charges. The proposed Illinois fee schedule and rules for hospital outpatient services and ambulatory surgery charges are available in draft at this link to the Commission website. Official Public Comment hearings are currently being held on the proposed new outpatient schedule in both Chicago and Springfield.

Chicago Workers Compensation Attorneyshttp://wc-chicago.com 7-16-08