Effective April 19, 2010, the Maryland Workers' Compensation Commission has issued new regulations pertaining to how vocational rehabilitation is to be conducted. These new regulations have been applicable since that date.
The initial change was that COMAR 14.09.01.20, which set forth much of the procedure for instituting and conducting vocational rehabilitation services, was repealed in its entirety. The regulations pertaining to vocational rehabilitation were consolidated in COMAR 14.09.05.00, et seq., where previously the regulations applied only to vendor registration and certification issues.
Of most import are the regulations governing: institution of vocational services; selection of the vocational rehabilitation provider; resolution of disputes; restrictions on vocational providers; new forms; and deadlines associated with the completion of services.
INSTITUTION: Previously, the institution of vocational services or use of a nurse case manager to coordinate medical services was purely within the province of the Employer and Insurer, as they were paying for the services. This is no longer the case. (Nurse case management may be treated somewhat differently, but the rules seem to apply equally to them as to vocational counselors.) Pursuant to COMAR 14.09.05.09, the process begins either with the agreement of the parties that vocational services are necessary, or by Order of the Commission (this is the easy way). If there is no agreement, then the dispute resolution procedures contained in COMAR 14.09.05.09F and COMAR 14.09.05.12 become applicable. This requires notification by a party to the Commission of the existence of the dispute, by use of the appropriate form. The form may be sent by facsimile or hand-delivered. Depending on the nature of a dispute, differing forms or procedures may apply. Regardless of what the dispute involves, the rules provide for a hearing within 5 business days.
SELECTION: Once there is an agreement or Order for vocational services, the parties are required to agree to the selection of the rehabilitation practitioner. The term "rehabilitation practitioner" includes both a vocational counselor, as well as a nurse case manager, per COMAR 14.09.05.01B(13). If the parties are able to agree to the rehabilitation practitioner, then they utilize a form to notify the Commission and the rehabilitation practitioner simultaneously. Without the receipt of the form, the rehabilitation practitioner is not allowed to begin services or contact the Claimant. If the parties are not in agreement, then Commissioner must be notified of the dispute. Each party then identifies 3 registered rehabilitation practitioners and the enrolled provider for whom the practitioner works, again on a form provided by the Commission, and mailed to the Commission and all parties. Thereafter, a party is entitled to strike 2 of the 3 practitioners identified by the other party, again delivering this to the Commission by hand-delivery or facsimile. The Commission's Director of Vocational Rehabilitation Services then selects 1 of the 2 remaining practitioners, based on a rotating priority system.
Special Note concerning nurse case manager as a vocational rehabilitation practitioner. As noted above, the Commission has now defined vocational rehabilitation practitioner to include a nurse case manager who assists and/or coordinates medical services. Since the adoption of the new regulations, the Commission has held "training" sessions to explain the new regulations and how they are to be utilized. Each session has included a question and answer session. At the most recent session, the question was posed as to whether the new rules for selection and disputes apply to nurse case managers. The Commission has stated that the Commission has no authority to require an injured worker to accept nurse case management services. This seems contrary to the language of the new regulations. It can be expected that this issue will eventually be addressed through litigation when a dispute involving the issue arises and is brought to a hearing, or when one party or another seeks to apply the new regulations to institution of nurse case management in a pending claim.
DISPUTES: As can be seen, the Commission appears to anticipate that there will be disputes regarding the institution of vocational services, as well as the selection of the practitioner involved. Even so, there are usually other disputes, such as non-cooperation, termination of benefits, disagreements about the interpretation of a vocational plan, responsibilities and rights of a practitioner, such as a nurse case manager, and probably many more. The Commission's new process is intended to quickly resolve these types, in fact, all disputes between the parties. To that end, there is COMAR 14.09.05.12. Basically, the process is as follows: a) if there is a dispute, a party files the designated dispute form electronically with the Commission; b) the Commission contacts the parties (attorneys) by telephone; c) absent a resolution, the matter is set for a hearing within 5 business days; and d) the Commission may assess attorney's fees, when deemed necessary.
RESTRICTIONS: The new rules provide a significant number of restrictions on what the Employer and Insurer can do, but also on what the vocational counselor or nurse case manager can do when involved in these claims. Of most note for the Employer and Insurer may be what has already been noted regarding the change as to who instituted vocational services and who selected the rehabilitation practitioner. Even so, there are quite a few more applying to the rehabilitation practitioner that can be rather concerning. (Some of the restrictions were there before, but given the other new regulations, it is anticipated that they will be applied differently, or have a more significant effect.)
a) Must be registered with the Commission;
b) Consider best interests of the Claimant;
c) May not misrepresent duties or responsibilities in the process;
d) Must exercise independent judgment;
e) Notify Claimant that Employer and Insurer are paying the practitioner's fees;
f) Notify Claimant that the practitioner is an independent professional;
g) Notify all parties about any contact with OR ABOUT the Claimant;
h) May not be present at medical examination without written consent;
i) May not seek a healthcare provider's opinion without written consent;
j) Must comply with Commission Orders and Regulations;
k) Must comply with applicable licensing board;
l) Cannot contact Claimant or start vocational services without form signed by both parties;
m) File reports with the Commission on a 30 day basis with copies to all parties;
n) Develop a vocational plan that is submitted to the Commission and all parties; and
n) Contact all parties 15 days before expiration of a vocational rehabilitation plan.
Much of the above is how it has been for some time. The problem is that with the dispute resolution process and the advent of new forms, there is likely to be a more significant issue regarding the use of nurse case management services. As you will see above, some of these restrictions could subject a nurse case manager to inquiry, should there be too close a relationship with a particular insurance company or third-party administrator (not to mention and Employer). Also, the restrictions about medical examinations appear intended to keep the nurse case manager a bit in the dark about the nature of the ongoing medical treatment. After all, the nurse case manager cannot even talk to the Claimant without permission from the Claimant (preferably in written form).
Of course, not all of this is bad news for the Employer and Insurer. Given the breadth of these new regulations, it seems clear that the Commission now believes that they have the authority to Order the Claimant to accept and cooperate with a nurse case manager. That may depend on individual Commissioners, but the fact that nurse case managers are rehabilitation practitioners and these restrictions and the dispute rules apply to rehabilitation practitioners would make it logical that the Commission can Order a Claimant to allow nurse case management services, and even direct the degree to which access and cooperation is required.
FORMS: Click here to review the new forms that the Commission has created to handle the new regulations. They are pretty self-explanatory. What is notable, however, is that the Commission is getting more and more reliant on forms. It is quite important that the correct form is used. Also, these forms are to be filed in particular ways, which may, but do not necessarily always include: facsimile, hand-delivery, electronic transmission.
DEADLINES: Any set of regulations would be incomplete without some deadlines. There are a number of them in the new regulations, and there appears to be some increased emphasis on some that were there before. Below is a list of the deadlines applicable or pertinent to Employers and Insurers involved in the vocational rehabilitation process, as it is now:
a) 5-days from date parties are unable to reach agreement as to rehabilitation practitioner within which to notify Commission of dispute and identify 3 registered practitioners and the enrolled provider for whom the practitioner works;
b) 5-days from filing of notice of dispute (see a) above) within which to strike 2 of the other party's identified registered practitioners;
c) 5-days notice for hearing on any vocational rehabilitation issue that is disputed and not resolved by telephonic means
c) rehabilitation practitioner must meet with Claimant "as soon as practicable" to complete vocational assessment;
d) 30-days for filing of initial report by rehabilitation practitioner;
e) 30-days from last report for next report as to vocational rehabilitation activities that have transpired;
f) 15-days from submission of vocational rehabilitation plan by rehabilitation provider within which to accept proposed plan, or submit reasons for disagreement with proposed plan; and
g) 15-days prior to expiration of vocational rehabilitation plan, rehabilitation practitioner must contact all parties regarding continuation, extension or termination of services.
The Commission's intention with the new rules is to prevent disputes, or resolve them quickly enough to avoid hardship to the Claimant. As can be seen, the Commission has taken a predictably bureaucratic route to try and effectuate the intention behind the new rules and the perceived problems in the vocational rehabilitation process. At present, the rules have not been utilized enough to determine whether they will do what is needed, or intended. In all likelihood, the practical application of the rules may be different than the theoretical expectations.
Further information as to the new regulations can be obtained by accessing the Commission's website - http://www.wcc.state.md.us/Voc_Rehab/FAQ_VocRehab.html, which includes a power point presentation on the subject.
Lance G. Montour, Esq., Humphreys, McLaughlin & McAleer, LLC