Posted on Mon, Aug 30, 2010 @ 10:54 AM
Question:
I am a practicing therapist in the Industrial Rehab field in Pennsylvania. We have been unsuccessful up til now in getting long term disability companies to pay for FCEs. It seems that if a doctor requests it, then the carrier states commercial insurance is responsible for payment. Most commercial insurances do not cover FCEs either. I am wondering if this is a situation unique to PA and if anyone has any information on who to contact with these disability carriers to try to get them to start paying for FCEs.
Answer:
OK, here we go...
FCEs for disability are a difficult, but growing area of practice. If you follow our monthly medico-legal webinar series you will have noticed that about half of the court cases we review are ERISA cases and the other half are ADA-EEOC cases. Given the string of settlements recently published in these two areas I see a growing opportunity for evaluators who can cultivate relationships with disability carriers. (read my recent article in Advance for Occupational Therapy Practitioners for more details).
The first step in finding a payment source for a disability eval is to identify the covering party. There are several options for proceeding:
1.) Ask the client (the patient) for a copy of his/her application for disability. (They should have filed paperwork by now if they are applying for payment of benefits). Within that paperwork you will find who wrote their policy and who is managing the "administrative file".
- If the client has not filed for benefits, but is a professional person he/she probably has a copy of a personal long term disability policy (they should have it!). In this case the policy should have contact information.
- If the insured is not a professional-level person, the policy may be a group policy. Again, ask the client to obtain a copy of the policy. I personally would not do the leg work at this point; many, many times the person thinks they are covered, but are not. Or they think they should be, but don't really know if they are. Let them do the leg work to obtain the details you need.
2.) Once you have identified the payment source you will begin a long road to discovering who is responsible and why they are responsible. The policy will have details about the exclusion term of the policy, the "same job" or "like job" terms of the policy, etc. It is at this point that you MAY discover whether the client is even entitled to be considering a disability claim.
3.) Now, if you get this far, be sure you have agreement for you to perform and get paid for your services. The underwriter may already have in place a team of professionals to perform these services. If they do, suggest that you be added to their team.
Sound like a long road? It is and is probably not worth pursuing for one client. You really want to build relationships with attorneys, first, and carriers, second, so your initial investment of time returns dividends over time.
Think of this as a 5 or 10 year engagement.
If you want to discuss this further call me at 1-800-443-7690 and/or tune in to our monthly free webinar.
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Wed, Aug 11, 2010 @ 10:16 AM
In case you do not already know, here at Matheson we host a free monthly medico-legal webinar on recent court rulings involving functional capacity evaluations or post-offer pre-employment tests that are in the domain of either the Americans with Disabilities Act (ADA) or the Employment Retirement Income Security Act (ERISA). (Note: Roy does present webinars every once in a while on other subjects as well, such as Understanding MET Testing in a Functional Capacity Evaluation and Using Methods-Time Measurement (MTM) within a Functional Capacity Evaluation. So, be sure to keep an eye out for those as well!)
These webinars are hosted by Roy Matheson, president of Roy Matheson and Associates (a.k.a. Matheson System). As Roy states during every webinar, he is not a clinician... He is someone who is passionate about these subjects - and has been for over 20 years - and who enjoys reading these court rulings and making these important rulings known to not only our students or graduates, but to any FCE or Post-Offer evaluator who would like to join in. At the end of every webinar, Roy answers questions that participants have - and they are usually very good ones!
So, if you are interested, be sure to check back at www.roymatheson.com/free-webinars for a link to register to upcoming webinars. Our FCE or Post-Offer Court Case webinars are held every first Thursday of the month at 2 p.m. EDT.
If you have missed any, there is also a list of archived webinars in which you can watch "on-demand" (for free of course).
Below is a "MediaRoll" of all of our past webinars, which are stored on Screencast for your more-convenient-and-faster viewing pleasure. Click on one to start viewing the webinar!
Note: if you do not have the latest version of Flash, you will not see the below MediaRoll.... sorry :(.... {This doesn't apply to the actual webinars, just the graphic below}
Thanks for your interest and continuing support! Hope to "see" you in one (or all!) of our upcoming webinars!
 bennett.jpg)
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Fri, Jul 30, 2010 @ 01:58 PM
This posting is the third in a string about the August 5th medico-legal webinar that features a review of the Loma Linda University Medical Center settlement with the California State Department of Fair Employment and Housing and ten job applicants.
A response to an earlier post in this string questioned the relationship I see between Functional Capacity Evaluation (FCE) Testing and Post-Offer Pre-Employment Testing (POET). The query wondered how such tests could be similiar if they apply to the status of the client in not only two different phases of employment, but in two different legal systems (state workers' compensation versus the federal EEOC-AADA system). The writer indicated that post-offer seemed to reside in the early stages of employment, while FCE applied to a distant disability phase.
The link between how we practice in post-offer and how we practice in FCE lies in the fact that the individual being tested is (1) a candidate for a position of employment or (2) an incumbent to a position of employment. In Case 1, federal law protects the applicant from discrimination in employment testing. Case 2, even though residing in a state-level workers' compensation atmosphere, is not free from the weight of federal restrictions against discrimination in employment as the client is seen not as an applicant, but as an incumbent.
Both cases rest under the umbrella of federal protection for the client and federal responsibility for both the employer and the evaluator. In both cases, the EEOC administered AADA establishes the guidelines for employment testing.
Recent Federal Appeals Court cases make it clear that EEOC guidance for employment testing covers all applicants and incumbents. In Indergard v. Georgia-Pacific an incumbent wishing to return to her former position as a Napkin Folding Machine Operator challenged an FCE as an ADA covered medical legal evaluation. In James v. Goodyear Tire and Rubber the employer sought the right (affirmed by the court) to have an incumbent banbury operator undergo an FCE to determine his safe ability to fulfill the demands of his job. Indergard started as a workers' compensation case; James was an incumbent ADA case. In both cases the opinion of the court stressed the need for a valid FCE based on tests of the physical demands tied to the essential functions of the specific job to which the client was attached.
The lesson here for functional capacity evaluators is to pay attention to the attributes of each case that comes across the transum.
* * *
Register Now for Loma-Linda Medical Center Settles Post-Offer Case for $260,000
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Fri, Jul 23, 2010 @ 05:15 PM
My last post introduced the topic of our August 5th medico-legal webinar (see below to register). I described a settlement between Loma Linda University Medical Center and the California State Department of Fair Employment and Housing in which ten job applicants shared a $259,854 settlement.
The central issue in this case, and the issue driving the reform of Functional Capacity Evaluation and Post-Offer Employment Testing in the United States, is the all-important relationship between the essential functions and physical demands of the target job. Until recently, functional capacity evaluations administered in the workers' compensation arena did not take the time to establish the essential functions at the level required by the AADA. A narrative of the essential functions in a "job description" format served workers' compensation purposes. (The AADA does not mandate a format for an essential function list, but does in fact require a clear description of the essential functions.)
Now practice reform comes to both Post-Offer testing and functional capacity evaluation for return-to-work, same job same employer cases in the necessity to (1) prepare an accurate list of essential and marginal functions and (2) perform a job analysis to establish the physical demands of the essential functions and, finally, (3) the post-offer or functional capacity protocol performed against these demands must be a valid reflection of the demands.
Not building this chain has cost two employers more than $500,000 in the last 7 months.
A review of recent federal court cases provides prima facia evidence in a shift in the level of use and scrutiny of FCE at the federal level.
A brief history:
Indergard v. Georgia-Pacific established functional capacity evaluation as a medical evaluation under the terms of both the ADA and the AADA. The judges spent considerable time probing the Validity of the FCE protocol in question and found it to be invalid in relation to the physical demands of essential functions of the job.
Leger v. Chicago Tribune Company is an ERISA case heard at the federal court of appeals. The court took time to quote directly from an FCE administered by Joseph Rappa, PT. Justices commented on the physical effort statement and the reliability of client reports statement contained in the report. The reader is left with the impression that the court relied on the FCE to a greater extent than on the evidence offered by a physician in the case.
James v. Goodyear Tire and Rubber established the court's opinion that a valid FCE can be requested by an employer when legitimate reasons exist as to a worker's safe ability to perform the demands of his job. The court stressed the need for a valid test protocol.
It should be noted that the Federal Rules of Evidence and the Federal Rules of Civil Procedure govern the submission of Functional Capacity Evaluation reports at the federal level. My personal opinion is that the best level of preparation for this level of work is for the evaluator to be designated as a fully Certified Work Capacity Evaluator (CWCE). Many of today's quickie FCE courses will not prepare a therapist to be an evaluator at the level required in today's changed environment. Further, inflexible protocols and lack of clear essential functions will not serve FCEs done for return-to-work, same job, same employer evaluations.
When I began this blog string I said that it would be about preparing for the August 5th webinar on the LLUMC case. As I wait for documents from the State of California I will respond to a question about the link I see between the practice of post-offer testing and functional capacity evaluation testing.
Register Now for this Webinar:
Loma Linda Settles Post-Offer Case for $260,000 - August 5, 2010, 2 p.m. EDT (GMT -5)
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Wed, Jul 07, 2010 @ 03:32 PM
Do you subscribe to the monthly magazine Advanced for Occupational Therapy Practictioners? If so and you have the latest issue nearby (Vol. 26 • Issue 13), flip to page six. (If not, you'll be able to read the article via the link at the bottom of this post)
On page six you'll find the first installment in what will be a "new, regular column on industrial rehabilitation in occupational therapy" - and it's written by Roy!
In his first column for Advance for OT, Roy writes about the latest court cases affecting Functional Capacity Evaluation and how the courts are "clearing the way for FCEs in ADA cases":
A recent appeals court decision affects the practice of functional capacity evaluations (FCEs) in the United States. The ruling in James v. Goodyear Tire and Rubber Company clears the way for employers to request FCEs when legitimate business-necessity concerns, including the safety of an incumbent worker, exist.
If you have been a regular attendee of our free, monthly medico-legal webinars then this should sound familiar to you. (If you haven't yet attended a webinar, check out the previous link to register for upcoming webinars or to view our archives. You'll be glad you did!)
We're very excited and looking forward to seeing where this new adventure leads us. Check out the article below and be sure to check back for the next column!
"Court Clears Way for FCEs in ADA Cases" in Advance for Occupational Therapy Practitioners magazine
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Tue, Mar 02, 2010 @ 09:47 AM
In the recent 2010 Matheson workshop catalog I wrote,
The headline screamed, ‘EEOC Says No OT or PT in FCE’. Without even reading the article, I knew this headline would pave the way for change, despite its sensationalism and inaccuracy. At that very moment, I sensed an opportunity, as well as a major wake-up call, for the industry.
I went on to conclude with these words:
Indergard v. Georgia-Pacific serves as a wonderful learning tool for professional work evaluators who perform ‘functional capacity evaluation’ (FCE). This 9th Circuit Court of Appeals case illustrates how the federal legal system works in the United States – highlighting the weaknesses in the Americans With Disabilities Act, which is clearly flawed despite good intentions. And, it also surfaces the weaknesses in how the FCE is performed differently in various states.
The informal review of Indergard in this presentation, and in the paper below, are intended to address concerns shared by many experienced work evaluators. Included herein are lessons and suggestions that Thinking Evaluators may want to consider. Please keep in mind that the thoughts and reflections in this presentation and document are not intended to be legal advice.
*Please note that the below presentations will not show up in a Google Chrome internet browser. They will work in either Internet Explorer or Mozilla Firefox.
Below is the official court ruling:
Indergard v. Georgia-Pacific serves as a useful training tool for functional capacity evaluators. The evaluators who performed the job analysis and the FCE gave each of us a valuable gift – we thank them for what they endured to help us all learn. The comments in this paper should not be taken as criticism of those that were involved in the case.
- Roy Matheson
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System
Posted on Wed, Feb 24, 2010 @ 01:48 PM
The cornerstone of an informed hiring program is to ensure that an applicant's physical abilities match the demands of the job. For any organization that places applicants in jobs with high levels of physical exertion or dexterity, or jobs with a history of injuries, Post-Offer, Pre-Placement Testing and Job Analysis (PPT) is a crucial step in avoiding injury and its associated costs.
Health professionals who start Post-Offer testing programs often do so because of their background in occupational therapy or physical therapy. They quickly learn that their skill set must expand to include an awareness of EEOC practice guidelines, knowledge of how to write a defendable post-offer test and how to track disparate impact statistics. See: Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002)
Post-Offer testing programs provide clinicians with the opportunity to make direct contact with employers, rather than waiting for referrals from doctors or brokers. The key to launching a successful clinic-based PPT program is to start with a well-established package that includes training, software and support.
Evaluators need to comprehensively analyze jobs to create individualized Essential Function Task statements, and to develop and administer pre-placement testing protocols based on the physical demands associated with the essential functions of each job.
Post-Offer Testing and Job Analysis training >>
Post-Offer Testing and Job Analysis software >>
Find us on Facebook: Matheson System
Follow us on Twitter: @MathesonSystem
Connect with us on LinkedIn: Matheson System
Watch us on YouTube: Matheson System