Tuesday, February 4, 2014

The Rule of Law and The Media's Role

I'm at the 11th Annual National Workers' Compensation Insurance ExecuSummit held at the Mohegan Sun Convention Center & Hotel in Uncasville, CT.

My topic is "The Role of the Media in a Healthy Workers' Compensation System."

I've given this speech before, albeit in a shortened version. I have 50 minutes to fill this time, and of course there is a lot to say; I'm not short of words.

Attendees of the summit want to know what's going on with workers' compensation around the nation, and of course leading the curiosity charge is California with its ever evolving (or devolving) system.

Those not living in California are befuddled by our system. Heck, even those living in California are befuddled...

Yesterday was also the start of the 21st annual California Division of Workers' Compensation Educational Conference in Los Angeles, CA, where the weather is a bit warmer than it is here in CT.

So too has the activity been a bit warmer in California - at the Educational Conference Acting Administrative Director Destie Overpeck gave an overview of what has been going on with the division since the directive of SB 863 to implement numerous changes to the system.

The list of work that the division has been engaged in is impressive, and demonstrates just how vast the changes were in SB 863:
  1. New rules to reduce payments to ambulatory surgery centers from 120% of Medicare’s outpatient rate to 80%;
  2. A new fee schedule for providers based on a Resource Based Relative Value Scale;
  3. A lien fee system (currently partially in abeyance due to legal challenges which also adds to the division's work load);
  4. New statute of limitations for lien filers;
  5. New Independent Medical Review process and procedures;
  6. New Independent Medical Bill review process and procedures;
  7. Revised Medical Provider Network approval and renewal process and rules;
  8. Pending fee schedule for copy services;New penalties for failures in notifications and standards for MPNs.
This is all in addition to the normal work load of the division, and doesn't include all of the changes to the self-insurance/administration laws, which was the other half of SB 863.

The extent of the work burden on the division is highlighted by what has been required of it regarding Medical Provider Networks.

Proposed rules published last month would give the administrative director 60 days to approve an application filed by a new network and 180 days to approve a renewal. The rules also define the role of the access assistant, a position that network administrators are required to staff to help injured workers schedule appointments with network physicians.

The rules would also require a person filing a petition to revoke or suspend a network’s authorization to show the MPN has systematically failed to meet access standards on more than one occasion in two specific locations.

An the division is currently trying to set the appropriate level of penalties to ensure that network operators will comply with requirements to notify the agency when they modify network plans, proposing penalties of up to $500 for not filing a notice of plan modification within 15 days, and $2,500 for not notifying the division when changing network contracts.

Previously the division only had the authority to revoke or suspend a network.

What does this have to do with the media's role?

I think it a big part of it comes down to The Rule of Law.

Current Pepperdine School of Law (my alma mater - Class of '84) Dean Tacha, who is a retired United States federal judge and served on the United States Court of Appeals for the Tenth Circuit, impressed me in one of her speeches to alumni at the annual dinner a couple of years about the importance of the Rule of Law.

The Rule of Law is what makes a society civil. It is respect for the Rule of Law that allows people to socialize without fear of unwarranted reprisal, that allows the resolution of disputes and discipline of wrong doers. Regardless of apathy or disinterest, the vast majority of people at least respect the Rule of Law.

In workers’ compensation it is the Rule of Law that keeps systems reasonably predictable so that everyone knows where the boundaries are - this allows businesses to plan, people to have certain levels of expectation, and society at large to benefit.

The Rule of Law generates stories. These stories provide guidance, reminders, lessons. These stories also need to be told.

And when a system changes, either implements new rules, or new laws, or modifies existing ones, these changes create friction, disputes, opportunities and anxiety.

These are all stories that come out of the Rule of Law - be it statutory law, regulatory law, case law.

In order for the Rule of Law to work there needs to be information and education. The old saying that ignorance of the law is no defense doesn't apply unless the people have an opportunity to know the law.

The media plays a big part of this - the media may not be responsible for teaching the law, but The Media has an obligation to inform about changes, and particularly what those changes mean to different people.

It is the story that gets generated when the Rule of Law is applied to specific instances.

So it all comes around - big changes in California highlight what The Media's role is: explain why what happened did when it did.

Now you don't have to travel to Connecticut to hear my speech.

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