Legislative Digest - February 21, 2012
Key provision deleted from workers’ comp bill
The Chairman of the House Industrial Relations Committee has introduced legislation developed by the Advisory Council to the State Board of Workers’ Compensation, but without a provision important to Georgia employers. Rep. Bill Hembree of Douglas County omitted from HB 971 a provision for the creation of medical treatment guidelines. GSIA is opposing the bill in this form. The House Industrial Relations Committee will likely take up the bill this week.
HB 971 would increase the maximum weekly income benefit from $500 to $525. Other provisions in the bill would:
• Allow the State Board to excuse employers from the 20% penalty for non-payment of benefits upon a showing that non-payment was due to conditions beyond the control of the employer.
• Make “housekeeping” changes to provisions related to the appointment of guardians and conservators.
• Increase from 2,000 cycles per second to 3,000 cycles per second the maximum frequency for compensable hearing loss.
• Clarify that employers, insurers, and third party administrators may communicate with medical providers without the consent of the claimant. This provision attempts to outline the limits of a recent court decision in McRae v. Arby’s where the Court of Appeals held in a split decision that defense attorneys may not have ex parte communications with physicians.
As introduced, HB 971 imposes a cost on employers (the benefit increase) without any provisions that would reduce costs. The Advisory Council has always attempted to balance any cost increases inherent in its proposals with measures to reduce or contain costs.
The State Board put forth the medical treatment guidelines as a compromise after claimant attorneys on the Advisory Council objected to several GSIA proposals aimed at reducing medical costs. Several states have implemented treatment guidelines, with most claiming to have achieved significant cost savings.
GSIA is now working to restore a cost containment feature to the bill. If that fails, GSIA will focus on removing the benefit increase or defeating the legislation.
Chairman Hembree’s decision to omit the medical treatment guidelines marks the first time in some 20 years that the legislature has substantially changed the content of a bill developed by the Advisory Council to the State Board of Workers’ Compensation.
Bill would increase oversight of pain management clinics.
Working with Attorney General Sam Olens, Rep. Tom Weldon of Ringgold has introduced legislation to give the Georgia Composite Medical Board authority to license and regulate pain management clinics. HB 972 states that “…the illegal and improper distribution of controlled substances is a growing problem in this state. Licensure and regulation of pain management clinics will better protect the public from criminal activities associated with the illegal distribution of controlled substances as well as provide for a safer place for people to obtain appropriate medical treatment by requiring certain minimum training of practitioners and by the regulation of pain management clinics.”
Under this bill, all pain management clinics in Georgia must be wholly owned by physicians licensed in the State. HB 972 provides for background investigations on all applicants for the required biennial license. The Medical Board would have the authority to set minimum standards, impose restrictions, require continuing education, and revoke licenses. It would also require coroners and medical examiners to report to the Medical Board any deaths that may have resulted from medication prescribed by a pain clinic. Operation of a pain clinic without a license would be a felony under this bill.
HB 972 is now in the House Health & Human Services Committee.
Other bills of interest.
SB 416 by Senator Buddy Carter of Savannah would authorize the Department of Insurance to develop exchange standards regarding electronic prior authorization drug requests from pharmacy benefit managers. Referred to Senate Health & Human Services.
SB 425 by Senator Josh McKoon would provide for a physician profiling program and set criteria for programs that evaluate a physicians cost of care. Referred to Senate Health & Human Services.
HB 964 by Rep. Buddy Harden of Cordele would require that audit parameters be applied equally to local and mail-order pharmacies. Referred to Health & Human Services.
Claimants’ lawyers go to court
Unable to gain traction with legislation, Georgia claimant lawyers have turned to the courts to push their workers’ compensation agenda. Recent court decisions threaten to escalate employer costs and unbalance Georgia’s workers’ compensation system.
McRae v. Arby’s Restaurant Group
On December 1, the Georgia Court of Appeals, in a 4 to 3 decision, struck down Superior Court and State Board decisions affirming the rights of employers to communicate with treating physicians. The Court of Appeals disagreed with the Superior Court ruling that HIPAA medical privacy rules are not applicable in workers’ compensation cases. Moreover, the Court of Appeals held that “The Statute as a whole thus provides no support for the claim that the ‘information’ to which an employer is entitled in OCGA § 34-9-207 includes entitlement to ex parte communications.”
The majority opinion in McRae v. Arby’s is confusing, and legal interpretations vary. Some claimant lawyers are sending letters to clients, lawyers, and physicians claiming that the decision bars virtually all ex parte communications with doctors by employers and their agents. Other lawyers interpret the decision as applying only to oral communications between defense attorneys and physicians. This interpretation is supported by the majority opinion statement that “while the Act requires an employee to authorize her treating physician to release relevant medical records and information, it does not require an employee to authorize her treating physician to communicate ex parte with the employer’s lawyers in order to continue receiving benefits.” Even this more narrow interpretation would add substantial costs to the workers’ compensation system by requiring full scale depositions where simple phone calls suffice under current law.
In his dissenting opinion, Judge Blackwell wrote, “…we must assume that the General Assembly meant what it said and said what it meant…and bear in mind that where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Judge Blackwell further wrote, “The word ‘information’ is generally understood to mean knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it.”
GSIA has urged the Advisory Council to the State Board of Workers’ Compensation to propose a legislative “fix” to the Arby’s decision, and a bill to achieve that purpose is being prepared. GSIA will push for corrective action, either through the Advisory Council to the State Board or other avenues. A resolution adopted by the GSIA Board of Directors is attached. GSIA members are encouraged to use this resolution in urging their legislators to support a bill reaffirming the right of employers to communicate with physicians in workers’ compensation cases.
Estate of Mark Pitts v. City of Atlanta
The Court of Appeals recently held a fatal, work-related accident was not limited by the exclusive remedy provision of the Workers’ Compensation Act because the provision “does not bar breach-of-contract claims.” Specifically, the Court held that the Workers’ Compensation Act’s exclusive remedy provision:
• Does not bar recovery because the employee was fatally struck by vehicle driven by a sub-subcontractor’s worker; sub-subcontractor was not an employee of the subcontractor who was not party to any contract under which it provided workers’ compensation benefits.
• Does not bar breach-of-contract action regarding failure to ensure that the sub-subcontractor complied with provisions requiring minimum amount of automobile insurance coverage.
The Court thus held that since the Estate seeks damages for breach of contract and not personal injury, the “Workers’ Compensation Act provides no specific remedy for damages sought by the Estate”… and “accordingly, the Act is not applicable to the Estate’s breach of contract action.”
GSIA joined other employer groups in filing an amicus brief in support of the defendants in this case.
General Assembly convenes on January 9
Legislation developed by the Advisory Council to the State Board of Workers’ Compensation will be introduced early in the 2012 legislative session. Key elements of the bill include a $25 increase in the maximum weekly income benefit and an authorization for the State Board to develop medical treatment guidelines.
Claimants lawyer representatives on the Advisory Council’s Legislative Committee have strongly opposed medical treatment guidelines, but the State Board appears convinced that well crafted guidelines could help hold the line against increases in medical costs. Defense attorneys on the Committee agree, noting that guidelines would clarify what constitutes appropriate medical treatment, and could be especially helpful in curbing abuses at pain clinics.
The bill may also include a “fix” of the McRae v. Arby’s decision described above, but it is also possible that this will be introduced as separate legislation.
AG targets pain clinics
Attorney General Sam Olens and State Rep. Tom Weldon of Ringgold will push legislation to regulate pain management clinics. The bill would allow the State to shut down Georgia “pill mills,” which have mushroomed from fewer than a dozen to more than 90 in less than two years. Georgia reportedly ranks third in the nation for the amount of Oxycodone purchased by medical providers.
Key provision deleted from workers’ comp bill
The Chairman of the House Industrial Relations Committee has introduced legislation developed by the Advisory Council to the State Board of Workers’ Compensation, but without a provision important to Georgia employers. Rep. Bill Hembree of Douglas County omitted from HB 971 a provision for the creation of medical treatment guidelines. GSIA is opposing the bill in this form. The House Industrial Relations Committee will likely take up the bill this week.
HB 971 would increase the maximum weekly income benefit from $500 to $525. Other provisions in the bill would:
• Allow the State Board to excuse employers from the 20% penalty for non-payment of benefits upon a showing that non-payment was due to conditions beyond the control of the employer.
• Make “housekeeping” changes to provisions related to the appointment of guardians and conservators.
• Increase from 2,000 cycles per second to 3,000 cycles per second the maximum frequency for compensable hearing loss.
• Clarify that employers, insurers, and third party administrators may communicate with medical providers without the consent of the claimant. This provision attempts to outline the limits of a recent court decision in McRae v. Arby’s where the Court of Appeals held in a split decision that defense attorneys may not have ex parte communications with physicians.
As introduced, HB 971 imposes a cost on employers (the benefit increase) without any provisions that would reduce costs. The Advisory Council has always attempted to balance any cost increases inherent in its proposals with measures to reduce or contain costs.
The State Board put forth the medical treatment guidelines as a compromise after claimant attorneys on the Advisory Council objected to several GSIA proposals aimed at reducing medical costs. Several states have implemented treatment guidelines, with most claiming to have achieved significant cost savings.
GSIA is now working to restore a cost containment feature to the bill. If that fails, GSIA will focus on removing the benefit increase or defeating the legislation.
Chairman Hembree’s decision to omit the medical treatment guidelines marks the first time in some 20 years that the legislature has substantially changed the content of a bill developed by the Advisory Council to the State Board of Workers’ Compensation.
Bill would increase oversight of pain management clinics.
Working with Attorney General Sam Olens, Rep. Tom Weldon of Ringgold has introduced legislation to give the Georgia Composite Medical Board authority to license and regulate pain management clinics. HB 972 states that “…the illegal and improper distribution of controlled substances is a growing problem in this state. Licensure and regulation of pain management clinics will better protect the public from criminal activities associated with the illegal distribution of controlled substances as well as provide for a safer place for people to obtain appropriate medical treatment by requiring certain minimum training of practitioners and by the regulation of pain management clinics.”
Under this bill, all pain management clinics in Georgia must be wholly owned by physicians licensed in the State. HB 972 provides for background investigations on all applicants for the required biennial license. The Medical Board would have the authority to set minimum standards, impose restrictions, require continuing education, and revoke licenses. It would also require coroners and medical examiners to report to the Medical Board any deaths that may have resulted from medication prescribed by a pain clinic. Operation of a pain clinic without a license would be a felony under this bill.
HB 972 is now in the House Health & Human Services Committee.
Other bills of interest.
SB 416 by Senator Buddy Carter of Savannah would authorize the Department of Insurance to develop exchange standards regarding electronic prior authorization drug requests from pharmacy benefit managers. Referred to Senate Health & Human Services.
SB 425 by Senator Josh McKoon would provide for a physician profiling program and set criteria for programs that evaluate a physicians cost of care. Referred to Senate Health & Human Services.
HB 964 by Rep. Buddy Harden of Cordele would require that audit parameters be applied equally to local and mail-order pharmacies. Referred to Health & Human Services.
Legislative Digest - January 3, 2012
Claimants’ lawyers go to court
Unable to gain traction with legislation, Georgia claimant lawyers have turned to the courts to push their workers’ compensation agenda. Recent court decisions threaten to escalate employer costs and unbalance Georgia’s workers’ compensation system.
McRae v. Arby’s Restaurant Group
On December 1, the Georgia Court of Appeals, in a 4 to 3 decision, struck down Superior Court and State Board decisions affirming the rights of employers to communicate with treating physicians. The Court of Appeals disagreed with the Superior Court ruling that HIPAA medical privacy rules are not applicable in workers’ compensation cases. Moreover, the Court of Appeals held that “The Statute as a whole thus provides no support for the claim that the ‘information’ to which an employer is entitled in OCGA § 34-9-207 includes entitlement to ex parte communications.”
The majority opinion in McRae v. Arby’s is confusing, and legal interpretations vary. Some claimant lawyers are sending letters to clients, lawyers, and physicians claiming that the decision bars virtually all ex parte communications with doctors by employers and their agents. Other lawyers interpret the decision as applying only to oral communications between defense attorneys and physicians. This interpretation is supported by the majority opinion statement that “while the Act requires an employee to authorize her treating physician to release relevant medical records and information, it does not require an employee to authorize her treating physician to communicate ex parte with the employer’s lawyers in order to continue receiving benefits.” Even this more narrow interpretation would add substantial costs to the workers’ compensation system by requiring full scale depositions where simple phone calls suffice under current law.
In his dissenting opinion, Judge Blackwell wrote, “…we must assume that the General Assembly meant what it said and said what it meant…and bear in mind that where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Judge Blackwell further wrote, “The word ‘information’ is generally understood to mean knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it.”
GSIA has urged the Advisory Council to the State Board of Workers’ Compensation to propose a legislative “fix” to the Arby’s decision, and a bill to achieve that purpose is being prepared. GSIA will push for corrective action, either through the Advisory Council to the State Board or other avenues. A resolution adopted by the GSIA Board of Directors is attached. GSIA members are encouraged to use this resolution in urging their legislators to support a bill reaffirming the right of employers to communicate with physicians in workers’ compensation cases.
Estate of Mark Pitts v. City of Atlanta
The Court of Appeals recently held a fatal, work-related accident was not limited by the exclusive remedy provision of the Workers’ Compensation Act because the provision “does not bar breach-of-contract claims.” Specifically, the Court held that the Workers’ Compensation Act’s exclusive remedy provision:
• Does not bar recovery because the employee was fatally struck by vehicle driven by a sub-subcontractor’s worker; sub-subcontractor was not an employee of the subcontractor who was not party to any contract under which it provided workers’ compensation benefits.
• Does not bar breach-of-contract action regarding failure to ensure that the sub-subcontractor complied with provisions requiring minimum amount of automobile insurance coverage.
The Court thus held that since the Estate seeks damages for breach of contract and not personal injury, the “Workers’ Compensation Act provides no specific remedy for damages sought by the Estate”… and “accordingly, the Act is not applicable to the Estate’s breach of contract action.”
GSIA joined other employer groups in filing an amicus brief in support of the defendants in this case.
General Assembly convenes on January 9
Legislation developed by the Advisory Council to the State Board of Workers’ Compensation will be introduced early in the 2012 legislative session. Key elements of the bill include a $25 increase in the maximum weekly income benefit and an authorization for the State Board to develop medical treatment guidelines.
Claimants lawyer representatives on the Advisory Council’s Legislative Committee have strongly opposed medical treatment guidelines, but the State Board appears convinced that well crafted guidelines could help hold the line against increases in medical costs. Defense attorneys on the Committee agree, noting that guidelines would clarify what constitutes appropriate medical treatment, and could be especially helpful in curbing abuses at pain clinics.
The bill may also include a “fix” of the McRae v. Arby’s decision described above, but it is also possible that this will be introduced as separate legislation.
AG targets pain clinics
Attorney General Sam Olens and State Rep. Tom Weldon of Ringgold will push legislation to regulate pain management clinics. The bill would allow the State to shut down Georgia “pill mills,” which have mushroomed from fewer than a dozen to more than 90 in less than two years. Georgia reportedly ranks third in the nation for the amount of Oxycodone purchased by medical providers.
