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.
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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!
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Posted on Fri, Aug 06, 2010 @ 06:00 PM
I'd like to introduce you to blog team member MaryBeth Plummer, PT. MaryBeth has been a licensed Physical Therapist for 25 years. She owns MBPT, LLC in Albuquerque, NM which specializes in Functional Capacity Evaluations and ergonomics. For MaryBeth's full bio, please check out our Matheson Blog Team page. We're excited to have her on board and here is her first post - and it's a thought-provoking one!
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There are numerous articles, books and internet sites regarding pain. It is somewhat easy to define pain into chronic and acute stages, but more difficult to define the cause of chronic pain. Acute pain is considered a natural and “healthy” pain as a result of trauma or injury. Chronic pain has no specific etiology thus making it poorly understood. Most chronic pain clients that present for Functional Capacity Evaluation (FCE) testing have not had a good response to therapy or invasive procedures, and sometimes continue with prescription medications that are not beneficial.
When a client presents for a Functional Capacity Evaluation, the clinician has about a 4 hour time-frame to assess this person’s ability to perform his/her pre-injury job or if they can perform any other occupation. There is a need to address a client’s perceived level of ability as well as their perceived level of pain as it relates to function for daily tasks and thus incorporate job tasks. There are a number of tools used in the Matheson system for aiding the clinician in assessing pain and a client’s perceived ability to perform functional activities.
As a thinking evaluator, one can assess a person’s predicted ability based on their diagnosis, observation of gait and ability to change positions, as well as performing a musculoskeletal evaluation to determine some baseline predictions for a client undergoing an FCE.
It is sometimes difficult to assess a person’s true abilities if the client is convinced that their pain limits most, or in some cases, all of their activities. This is where compassion meets the need for educating a client on safety during the evaluation and guiding them to try simple activities that encourage increased activity as well building confidence to perform tasks. Therefore, it is important to let a client speak about the emotional trauma of their injury and what they have been through professionally, personally and financially. This can establish a better rapport and a sense of trust in order to try lifting activities or other postural activities to build confidence in the client’s perceived ability instead of a perceived inability.
Our job is not to judge whether or not a person’s pain complaints are true or authentic, but to encourage and perhaps educate them about performing tasks in a modified manner to accommodate for their pain complaints.
There is a mind and body connection which is evidenced by the effect of depression in the mind affecting symptoms of pain and dysfunction in the body (muscle aches and pains, skin and hair problems, sleep disorders, etc). A paper in Spine, Vol 17, No 6, supplemental pages 138-144 (1992) showed correlation in the success of spinal surgery patients as it related to childhood traumas. This study indicated that the outcome of spinal surgery could be predicted based on whether a client had suffered any of five possible traumatic situations in their childhood. These included: physical abuse, sexual abuse, emotional neglect/abandonment, loss of one or both parents (divorce, death, etc.), drug abuse at home (alcohol, prescription drugs, etc.). As indicated in this reference, “The result of surgery and postoperative pain have little to do with the surgical procedure itself but largely depend on factors that date back to the childhood of the patient.”
There are many research articles and reference books on the subject of pain and its neurophysiology. This type of information gives the clinician a more scientific approach to understanding the cause and effect of acute and chronic pain. It may also allow us to venture into another scope of practice besides treating an orthopaedic or neurological diagnosis while still focusing on a client’s function.
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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.
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Register Now for Loma-Linda Medical Center Settles Post-Offer Case for $260,000
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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)
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Posted on Mon, Jul 12, 2010 @ 10:58 AM
The process of prepping for a medico-legal webinar may be of interest to you. On the first Thursday of every month we do a 90-minute session on the latest activity in the federal courts in the area of Functional Capacity Evaluation (FCE) or Post-Offer, Pre-Placement Testing (POET or PPT).
The case I have selected for the August 5th webinar is actually a state case. The State of California, through its Department of Fair Employment and Housing (DFEH) branch, has settled an employment disability administrative complaint against Loma Linda University Medical Center (LLUMC). The settlement agreement included a $259,854 disbursement to ten job applicants/claimants.
The root of this action stems from LLUMC's requirement that applicants for the following positions participate in a post-offer nerve conduction study: patient care assistant, referral assistant, phlebotomist, case manager, unit secretary, records representative, practitioner-resident and financial counselor.
The key issue in this case, as in the Indergard v. Georgia Pacific case in the federal courts, is the use of a test not directly tied to a physical demand of an essential function of the job(s) in question. This issue is driving reform of the FCE marketplace in the United States.
The steps I take to prepare for the 90-minute presentation include: (1) selecting a case, (2) obtaining a copy of the settlement agreement or the court's published opinion, (3) requesting supporting documents that will assist me to understand the issues, and (4) talking with the therapist or evaluator involved in the case.
Today I requested three documents from the State of California's Department of Fair Employment and Housing: LLUMC's pre-employment, post-offer physical exam policy, any job analyses of the positions that required the nerve conduction tests and LLUMC's nerve conduction test policy.
I also requested copies of job descriptions and job announcements for the positions that required nerve conduction studies.
Please join me, on August 5th at 2 p.m. EDT, for the webinar: Loma Linda Settles Post-Offer Case for $260,000.
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In my next post I will review the half-dozen federal cases that are shaping reform of the practice of Functional Capacity Evaluation in the United States.
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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
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Posted on Tue, Jun 29, 2010 @ 12:35 PM
The below post was written by James (Jim) Clouse, COTA, CWCE. Jim works at ProRehab in Evansville, IN and his professional interests include Work Conditioning, Functional Capacity Evaluations, Job Analysis/Job Description Preparation, Post-Offer/Pre-Placement Test Construction, and Workplace Injury Reduction.
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Thanks for asking me to be part of the Matheson Blog project! Aside from attending Matheson Training courses and reading "diamonds in the rough" articles, I learn the most from fellow Industrial Rehabilitation experts. We all have to be careful about how we interpret conclusions from authors, and discussing such things with my associates through RMA always leads to a deeper understanding.
One article I find myself re-reading and gleaning something new from again and again is from Dr. Leonard Matheson, and is actually part of the AMA chapter on FCE's in Disability Evaluation, 2nd edition (2003).
Several key points I have dwelt upon include:
- An excellent definition of "Functional" in Functional Capacity Evaluations
- A definition of "Capacity" that we should all be ready to paraphrase in a deposition or forensic setting
- A well-rounded explanation of "Evaluation" that summarizes all the key tools we use to make reliable predictions about an individual's performance
- A discussion of threats to reliability, that include:
Test Reactivity: a reminder that we are all dealing with people - not doughnuts. How we interact with an evaluee will have a direct impact on the results of the evaluation. (Maybe doughnuts do respond differently to a gentle human touch, but are generally considered inanimate.)
Physical Effort: Dr. Matheson lists 11 reasons why an evaluee might not provide high levels of physical effort during an FCE - 5 of which are psychological factors outside of the area of expertise of most evaluators. (Add two more "reasons" when you include "medically determined impairments" and "fraudulent attempts to circumvent the disability determination process" and you have a baker's dozen.)
- The importance of an "absence of expected relationship among related measures" (a $500 phrase!)
- The acknowledgement that almost all measures of effort can be volitionally defeated and that evaluators blind to evaluee "coaching" been shown to detect less than full effort with a 94% positive predictive value
- 5 different purposes for FCE's and the duration of testing required
- A comprehensive list of evaluation tools, and the Disability Model Level (what the tool assesses)
- A comprehensive list of Manual Material Handling tests
- A perspective on the future of Functional Capacity Evaluations
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Thanks Jim! For Jim's full bio, check out our Matheson Blog Team page.
To download the Functional Capacity Evaluation chapter in which Jim was referencing, click on the image below:
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Posted on Fri, Jun 25, 2010 @ 02:46 PM
Matheson instructors, Louise Lynch and Erica Galipeau from IHMS, have developed and now offer a functional capacity evaluation mentorship program. The purpose of the program is to support evaluators who desire to continue to improve their evaluation skills beyond those developed in the five-day FCE program and through traditional Matheson clinical support.
The following information comes from the Injury & Health Management Solutions (IHMS) website: www.ihmspt.com/mentorship
IHMS specializes in Functional Capacity Testing and Ergonomics using the Matheson System. Louise Lynch PT, CEES, CWCE is certified in both FCE and Ergonomics and has been teaching for Roy Matheson since 1995. Erica Galipeau PT, CEES, CWCE is also certified and has been teaching since 2003. We use the Matheson software for FCE and Ergonomics.
We provide mentoring for individuals who have had the initial RMA training in FCE. You can come to our clinic in beautiful Vermont, and work under our supervision while providing services to actual clients. The mentorship program is designed to meet your specific needs. We will design a training program specifically for you that allows you to observe an evaluation, perform evaluations, and write up a report that will not only allow you to be certain to receive certification, but also to meet your referral sources needs by answering the questions they pose to you in the first place.
The program is individualized to meet your specific needs. If you are interested, contact us directly from this website, or call the office and we will send you an application packet.
For more information, contact Louise or Erica via the IHMS website or call their office at 1-802-655-7575.
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Posted on Tue, Jun 22, 2010 @ 02:39 PM
When we work with people who have cognitive functional limitations, is there a good analog to the Physical Demands Characteristics (PDC) chart? The PDC chart is used to help bridge between the person's physical work capacity and the job's physical demands; are there analogous methods for cognitive work capacities and demands?
This is a very important problem. There are various strategies that can be used, depending on the issues that are presented. If this is a topic of interest, I can present additional ideas in the future. For today's entry, let me describe the use of the O*NET Abilities Domain, one of the six O*NET Occupational Descriptors for such a purpose. I have used this strategy several times for high-level professionals and executives who have experienced brain injuries.
The O*NET Abilities Domain is based on the Fleischman Job Analysis System (FJAS). Each of the abilities is represented in the FJAS by a behavior anchored rating scale (BARS). The BARS is a useful tool for work capacity evaluation because it presents observable behaviors that have been mathematically tied to a seven-point scale.
Depending on the demands of the occupation, certain ability factors are more important than others, which is obtained in the form of an Excel spreadsheet from the Details/Abilities section of O*NET for that occupation. An example is presented below for the top 10 (of 52) abilities for a client of mine who worked as a Management Analyst in the aeronautics and aerospace industry:
Importance is on a 100-point scale; in this example, Oral Comprehension is top-ranked. O*NET guides you to the most important abilities in the target occupation
Next, you need to design an evaluation and collect data from all available sources that illuminate those abilities. This begins with a careful history of the client's education and work, with the FJAS used to guide the discussion of the client's pre-injury work capacity in relation to the most important job demands. For example, Oral Comprehension is the "ability to listen to and understand information and ideas presented through spoken words and sentences". This ability is anchored at 5.6 on the FJAS 7-point BARS by "Understand a lecture on metaphysics", at 3.8 by "Understand instructions for a sport", and at 1.8 by "Understand a television commercial".
In addition, the FJAS BARS has very clear definitions for the ends of the BARS range. In this case, at the top end was "Requires understanding complex or detailed information that is presented orally, contains unusual words and phrases, and involves fine distinctions in meaning among words." With these anchors and this definition, I was able to conservatively estimate my client's pre-injury minimum at 5.5 to 6.0. His current ability was estimated between 4.0 and 4.5, representing a significant shortfall on which future rehab efforts should focus. Later discussion with a speech-language pathologist who evaluated my client indicated that he was at the low end of this range.
In the example above, I used subtests from the Employee Aptitude Survey, the Watson Glaser Critical Thinking Appraisal, and the Doll Chair Assembly Task situational assessment, and information from the neuropsychologist's test battery to develop a Cognitive Abilities Profile across his occupation's top ten ability demands.
This works best if the client has been fully employed and doing well in the occupation; without full employment, it is more difficult to estimate pre-injury capacity.
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