Late last week, OSHA issued compliance guidance in an attempt to clarify the department’s position.
In May of 2016, OSHA finalized the new recordkeeping regulation and, with it, included a provision meant to prevent an employer from retaliating against an employee who reports a work related injury. While the original provision never mentioned blanket post accident drug and alcohol testing policies specifically, the final regulation’s preamble addressed exactly that. It was the preamble that left employers questioning whether their blanket post accident testing would open their organization up to substantial fines.
Last week, from OSHA:
“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Since the clarification, we’ve had many calls from confused employers – and rightly so. Although the above guidance may have loosened the testing reins in certain situations, it certainly does not walk back the prior guidance completely. Instead, the latest from OSHA reinforces the need for an employer to test only when there’s a legitimate business need and, above all, for the employer to be consistent when making testing decisions in similar situations. In other words, nothing has really changed.
In the last two years, many employers have come to realize that a blanket testing policy, while easier to manage, has never been a good business decision. In blanket testing, employers often had standing orders in the office of their treatment provider that gave the go ahead to test any employee who presented for treatment of a work related injury – regardless of the cause. Employees who presented for the treatment of a bee sting, for example, or those who were injured as a result of a co-workers’ negligence, very often, had to submit to testing. Employees who presented for treatment days or even weeks after the injury also had to submit to testing. Having such a decisive policy has, over the years, resulted in causing issues for a decision the employer did not directly make and consequences that their policy may not be prepared to support.
Where do we go from here?
This is not the last time we’ll be hearing about this particular regulation. At this writing, there are still two lawsuits that were put on hold by the courts while the current administration reviewed the rule. It is still quite possible that the entire rule will be walked back. But, until that time, employers should continue to only require post accident testing when there is reason to believe that drugs or alcohol are involved. To ensure consistency, use a checklist for every injury and document the information that led to the decision to test or not test. Take time to train your supervisors, as well. Their documentation, if they decide to require a test, will not only cover OSHA’s requirement but may also help your case if there’s a reason to challenge the claim. So train your supervisors to be detailed!
Drug Free Safety Program Participants
The recently released guidance also mentions, again, that there are exceptions that allow for a blanket testing policy, including participation in a workers’ compensation discount program. This is just a reminder that Ohio’s Drug Free Safety Program does not now nor has it ever required testing after every injury. While it was common for employers in the DFSP to have blanket testing policies, the Drug Free Safety Program’s Self Implementation Guide (page 17) is quite clear in stating that there are situations when testing is not required. In other words, continue to follow OSHA’s requirements until otherwise noted.
Note: The guidance also included information on safety incentive programs. For more information, visit OSHA's Website: Clarification on OSHA's Position.
For questions, please contact our offices.
Open Enrollment for Managed Care Organizations in Ohio started today and we’ve already received a few calls with questions. Understandably, it’s a confusing time with a lot of information coming from many different sources. The window for an employer to change their MCO provider lasts 30 days and comes around only once every two years. The next opportunity to change will be in 2020. All employers – even those comfortable with their current MCO - should take this time to evaluate their workers’ compensation program and the costs associated with injured workers over the last two years.
The MCO is a critical partner and plays an important role in ensuring quality care for the injured worker and controlling the bottom line for employers. Workers’ compensation costs can be expensive. For that reason, evaluating the MCO’s performance is crucial to the financial stability of the company.
What Does an MCO Do?
In Ohio, all public and private employers in the state fund workers’ compensation system are required to have an MCO. The services of the MCO are paid for through the employer’s workers’ compensation premium so the decision to use one MCO over another should be based on performance rather than cost.
All MCOs are tasked with the medical management of the workers’ compensation claim. The team will focus on the injured worker’s well being, ensure quality medical care and return the injured worker to duty as soon as safely possible. While all MCOs have the same basic function, some perform much better than others.
While reviewing the claims for the last two years, the biggest question to ask is if the claims history looks better now than it did two years ago? Is the premium and experience modifier moving in the right direction (decreasing)? Has the current MCO been responsive? Take a look at the most difficult claim and ask if the MCO explored all options to move that injured worker’s recovery forward or was the handling of the claim frustrating and disappointing? If so, there may be a better provider.
Size Doesn’t Matter
During open enrollment, employers can expect to receive information from many sources. It’s important to understand the motivation of each endorsement, metric and marketing piece received. Remember: Bigger doesn’t always mean better and smaller doesn’t mean more responsive. What does matter is the MCO’s performance.
Marketing material may contain many metrics and statistical information. It’s important to read the fine print and establish if the information is current. Any date listed before 2018 or without current information should be immediately discarded. The BWC also provides the most up to date information on many benchmarks on the MCO Report Card.
Know What’s Important
Return To Work: Lost time claims have a significant impact on an employer’s workers’ compensation premium. Having an MCO that consistently performs well in returning an injured worker to the job should be an employer’s number one priority. Return To Work is one of the metrics listed on the MCO Report Card. On the MCO Report Card, the higher the number for Return To Work, the better the performance.
Medical Provider Networks – An MCO can also have substantial influence on the medical costs by utilizing a medical provider network with rates negotiated lower than the current BWC fee schedule. Lower costs mean less impact on the employer’s experience and, in turn, controlled premium dollars.
Drug Utilization Review (DUR) - Lastly, choose an MCO that makes DUR a standard piece of the claims management protocol. The DUR reviews the claim for inappropriate medications or excessive use. This process ensures the health and safety of the employee and workforce and, also, controls the cost of claims.
Who Can You Turn To for Help?
If, after evaluating the current provider, an employer decides to explore other options, there are many resources to help find a few MCOs to interview. Employers should always interview at least two candidates. First, start with your Third Party Administrator. The TPA knows the employer’s claims history and management style and will be a good resource for the employer. Reminder: Some TPAs and MCOs share a parent company. When such a relationship exists, it’s best to request two additional MCOs and interview all three. While this process may take a little more time, it’s best to ensure the decision is a proper fit for the company and not because of the TPAs responsibility to their parent company.
Chambers of commerce and business associations often endorse an MCO during open enrollment. Before following the recommendation in blind trust, ask questions. Why did the Chamber/Association choose the particular MCO? When was the MCO last evaluated and what information was the decision based upon? It’s a good idea to get multiple recommendations and interview two to three prospects.
And, don’t forget the best resource of all: other employers. Employers will be able to provide personal experience and can help to understand the claims management style of the MCO.
Lastly, First Connect has been helping employers choose Managed Care Organizations and Third Party Administrators for over 14 years. Our staff is an unbiased resource in that we aren’t paid by any MCO or TPA. We work only for employers.
Open Enrollment ends on Friday, May 25th and all enrollment forms must be received by the BWC before 5:30 pm. Enrollment can be completed online or by printing off an enrollment form and faxing it to the BWC. Forms can be found on the BWC website: Enrollment Forms
For more information or assistance in choosing an MCO that is right for your company, please call our offices.
At the end of June, OSHA published a notice in the Federal Registrar proposing a delay to the required reporting of illness and injury data under the Record Keeping Rule. OSHA has also signaled that other portions of the rule may be under review and/or revised.
Additionally, In two separate lawsuits challenging the anti retaliatory portion of the rule, the federal district courts have issued a stay in litigation while OSHA considers whether to review and/or revise all or part of the rule. This is the portion of the Record Keeping Rule that will affect incentive programs and post accident testing.
What employers need to know
The delay only affects the effective date of the reporting of illness and injury requirement. While OSHA is considering reviewing and/or revising other sections of the Record Keeping Rule, nothing official has come from OSHA. Employers should continue to follow the current protocol and only require a post accident drug test when there's reason to believe that drugs or alcohol may have been contributed to the cause of the injury.
We will continue to monitor the situation and send an update as soon as information is made available.
The Ohio BWC has extended a grace period for private employers in the state fund workers' compensation system to complete the payroll true up process. Employers now have until September 29th to submit their payroll information to the BWC.
The true- up is the final step in the transition to prospective billing and is a requirement of all state fund workers' compensation employers. To learn more about the True - Up process, visit the Ohio BWC website: Prospective Billing Information and Resources.
Just a reminder that all Ohio private employers in the state fund workers' compensation system must complete the True-Up process no later than August 15th. Missing the deadline could mean removal from any workers' compensation rating or discount programs and could result in significant increases in premiums. (see Don't Miss the True Up Deadline)
The BWC is anticipating long delays for employers trying to complete the process over the telephone. To avoid the wait, create an E-Account and complete the True-Up online: Ohio BWC New E- Account . Employers that already have an E-Account, can complete the True up Process here: Ohio BWC True Up.
The BWC has also put together a video to explain the True Up process that is available on YouTube: Payroll True Up . For more information, visit the Ohio BWC website: Prospective billing.
Today, begins Managed Care Organization Open Enrollment. It is the period of time where state fund workers’ compensation employers have the opportunity to choose a MCO that will medically manage their claims for the next two years. With the financial health of the company on the line, it’s one of the most important decisions that an employer can make. Open Enrollment runs from May 2nd until the close of business on May 27th. Miss this window and the next opportunity to change your MCO will be in 2018. Employers happy with their current MCO do not have to do anything and will be automatically re-enrolled.
Why are MCOs important?
All MCOs are tasked with the same basic function of medically managing the recovery process when an employee is injured. The MCO assigns each employer a team whose primary goal is to ensure sound medical treatment and plans for the injured worker to return safely to duty. The medical management of the claim and return to work of the injured worker both have significant financial impact on an employer’s workers’ compensation premium.
Where to find an MCO
During the next few weeks, employers will be receiving information from many different resources. It’s important to understand the motivation behind each piece of communication and endorsement received. High premium employers can expect to receive a high volume of marketing material and direct calls from most MCOs. Third Party Administrators, business associations and many chambers of commerce often endorse a preferred MCO, as well.
Third Party Administrators are a great resource for a recommendation but should be cautiously explored. Some TPAs share a parent company with an MCO and clarifying the relationship between the two is important. If a shared parent company exists, the employer should ask for a second recommendation and meet with both before making a decision.
Business associations and chambers of commerce also endorse a preferred MCO. Employers should ask how often the association or chamber evaluates their endorsement and the information used in making that decision. Again, interviewing at least two MCOs is always a good idea.
Employers may have accountants, consultants and other business providers that can also make recommendations. Clarifying the business relationship between the MCO and the provider is important. And certainly, nothing compares to an endorsement coming from another employer, especially one in the same line of work.
Numbers Matter - Sometimes
“Bigger doesn’t always mean better and smaller doesn’t mean more responsive” is what we preach to our clients during open enrollment. So what numbers really matter? The overall size of the MCO should have no bearing on your decision, but the average number of open claims handled by the MCO team assigned to your company should. The open claims number is indicative of the attention a claim will receive. Too many claims on the team’s desk means important information could get missed and cause a claim to linger for longer than necessary.
The most important statistical information comes directly from the MCO Report Card provided directly by the BWC. The Report Card shows important information like First Report of Injury Turn Around Time and the number of claims handled by each MCO. Some clarification on two of the Report Card scores is needed:
Meeting with the prospective MCO
If you’re in the market for a new MCO, narrow your choices to two or three and schedule an in person meeting. It is never a good idea to blindly trust an endorsement, no matter how reliable the source because what works for one employer may not fit well with another. This partnership is too important of a decision to make on the golf course with friends. (and, yes, believe it or not, that happens every year!).
When meeting with the MCO:
Remember, the deadline to file your selection for a new MCO is the close of business on May 27th. Selection forms are available on the BWC website.
If your company is considering applying for the Transitional Work Bonus program for a July 1 start date, a written program must accompany your application. For employers that do not have a current program, the BWC offers a grant for eligible employers. The grant will cover 75% of allowed costs in hiring a certified developer to work with the employer to write the program.
If you're planning on applying for the program and do not have a written program, it is important that you begin development in the next few weeks in order to meet the application deadline for the Bonus program.
First Connect will walk you through the written process from start to finish, provide a cost quote before you begin and information about what you can expect from the grant. Our certified BWC developers are located in all corners of Ohio. For more information about First Connect, please visit our website.
Current Transitional Work Bonus Participants
All current Transitional Work Bonus participants must submit an application annually if you'd like to continue in the program. For private employers, the deadline for applications is May 31. Please visit the Ohio BWC website to submit your application: Ohio BWC Bonus Program Application.