Wednesday, November 23, 2011

NY & ACOEM - IP Fight No Different Than Other Media

New York insurers are protesting a demand by the American College of Occupational and Environmental Medicine (ACOEM) that stakeholders in the workers' compensation system pay for commercial use of the state's year-old medical treatment guidelines.

ACOEM and its commercial software partner, the Reed Group, sent letters to nearly 300 New York carriers, third-party administrators and large employers earlier this month seeking $99 licensing fees for each user of the guides.

"NYIA firmly believes that carriers should be allowed to use the medical treatment guidelines without incurring any additional costs. We are hopeful the Workers’ Compensation Board will prevail in this matter," Marc Craw, vice president of the New York Insurance Association told WorkCompCentral in an interview. "The cost of doing business in New York State is already high enough without having additional fees and assessments imposed on insurers."

ACOEM released to WorkCompCentral a copy of a letter, dated April 21, 2008, from ACOEM Executive Director Barry Eisenberg to Cheryl Wood, former general counsel for the New York State Workers' Compensation Board (SWCB). The letter granted the board the right to use all or portions of the guides but prohibited SWCB from allowing use of the guides for commercial applications.

ACOEM's position is very clear - it's their intellectual property, it cost ACOEM a lot of money to research, publish and update the guidelines, and it should be fairly compensated for their use in commercial settings.

The position of industry is that since the guidelines are now the law, that equal access to the law mandates open and free publication.

Many states have already gone down this road already with other guidelines, such as the AMA Guidelines on Impairment Rating - the decision has been that if you want the guidelines you have to pay for them.

John Sciortino, president of the New York Injured Workers' Bar Association, told WorkCompCentral users should have the same access to the guidelines as they would if they went to a public library. That is already in place - SWCB has put the guidelines up on its website for research/non-commercial purposes.

My position is probably not unpredictable: I stand firmly behind ACOEM - and any other publisher - whose intellectual property may be used for commercial purposes, whether it be music, video, text and regardless of whether it is mandated by law or not.

SWCB can resolve the problem easily by paying ACOEM for all licences if it chooses to enrich for-profit stakeholders, i.e. insurance companies, attorneys, doctors, etc. Each of those interest groups is "in the business" and $99 for each licensed copy of guidelines is a cost of doing business.

When I first started practicing law, my mentor and firm partner, explained the business very succinctly to me: We live in America. In America justice costs money. If you want justice, then you have to pay for it.

That's the way it is folks. If you don't want to pay for ACOEM guidelines, then pay for the creation of your own.workers compensation, work comp, injured worker 

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