Transcript of Hearing (w-covers).dotWORKERS’ COMPENSATION DIVISION RULES
Elaine Schooler SAIF Corporation
Jaye Fraser SAIF Corporation
Jenny Bates SAIF Corporation
Melissa Crawford SAIF Corporation
R. Michael Fischer SAIF Corporation
Rob Wallace SAIF Corporation
Sue Quinones City of Portland
Thomas Messuri Associated Oregon Loggers, Inc.
Veronica Olson City of Salem
Agency staff attending:
THE STATE OF OREGON
The proceedings in the above-entitled matter were held in Salem,
Oregon, on the 11th day of September, 2019, before Fred Bruyns, Administrative
Rules Coordinator the Workers' Compensation Division of the State of Oregon.
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TRANSCRIPT OF PROCEEDINGS
0:00: Here we go. Okay, so we’re on. So, good morning. Thank you
very much for coming. We really appreciate it. We didn't know how many people
were going to attend. I was really kind of fearful that we were going to be in a room
by ourselves, meaning just a few from the division and maybe one or two
stakeholders, so I'm really pleased that you came to meet with us this morning
because we have some important agenda topics to cover.
And I'll do just a few preliminary remarks, and then we'll launch into our
agenda, but this is an advisory committee meeting. It’s not like a public hearing. It’s
not a formal process. It’s a conversation and a chance for us to hear from you so
that you can give us your advice on the issues and so that you can discuss those
issues with other stakeholders. The primary role of the division is to listen and to
take away all the advice that you have for us so that we can do the best job that we
can in crafting proposed rules that you will later have an opportunity to provide
formal testimony on.
So, again we appreciate you joining us. As we go along, please let us
know about any fiscal impacts that may result from some of the possible rule
solutions that we'll discuss, some rule changes that may or may not have fiscal
impacts, so either way we rely on the information that you provide to us. In some
cases, we've made our best attempt to provide just a thumbnail estimate of what
those fiscal impacts may be, but we need to hear from you. So, please keep that in
mind as we go along. Is there anyone on the telephone with us this morning?
1:43: Yes
1:43 Okay, great. I think we have so few, I'm going to skip our usual
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telephone protocol. I guess the only thing I'll say that, if you have to leave, please
don't put us on hold because sometimes then we'll get background music or
messages that we cannot turn off without turning everyone off, but it’s usually not a
problem. So with that, my name is Fred Bruyns. I coordinate the rule making
process, and I'd like us to go around the table and introduce ourselves to the
committee, so we'll start with you.
2:16: Hi, I'm Oona Grover. I'm with McCauley Potter Fain Associates.
We just do EAIP reviews for various third-party administrators and self-insureds.
2:27: I'm Dan Schmelling of SAIF Corporation.
2:31: Barbara Hall from Workers' Compensation Division audit
manager.
Services. I process reimbursements for our company.
2:43: Kimberly Wood. I'm with Perlo Construction, and I sit on the
MLAC committee.
2:49: Kathy Nishimoto with Duckwall Pooley. I sit with MLAC.
2:52: Veronica Olson from the city of Salem.
2:56: Dustin Karstetter. I'm an attorney consulting with Special
Districts Association.
3:02: Michael Fischer, SAIF Corporation.
3:04: Rob Wallace, SAIF Corporation.
3:08: Jenny Bates, SAIF Corporation.
3:08: Jaye Fraser, SAIF Corporation.
3:11: Lou Savage, division administrator.
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3:17: Matt West with WCD. I'm the employment services team
manager.
3:23: Katie Bruns. I'm return to work policy analyst for the Workers'
Compensation Division.
self-insurance registration and reimbursement unit.
3:35: And then not to put you on the spot, but if you're in the back and
you’d like to introduce yourselves to the committee, please feel free.
3:41: Donita White. I'm an auditor for Workers' Comp.
3:44: I'm Tami Jorajuria. I'm a reimbursement specialist for service
unit.
3:51: And again, if you're on the telephone, you may have already sort
of introduced yourselves, but we may have more than one, so if you could go ahead
and introduce yourselves to the committee.
3:59: Jeanette Kaufman, city of Portland.
4:02: Welcome Jeanette. Anyone else?
4:05: Sue Quinones. Yeah, Sue Quinones, city of Portland, here too.
4:09: Okay, welcome, Sue. Anyone else? Okay. Thanks again for
joining us. I'm going to go through the agenda, and if you don't have a paper copy
and you like to use a paper copy to make notes, we have extra copies at the table in
the back. If you don't have a name tent -- I think you all have name tents now. And
if you wouldn’t mind tilting them just a little my way, not so much so that others
cannot see them but just a little bit in my direction, although I know most of your
names, maybe not quite all of you, so.
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I'm going to scroll through the agenda so that I you're on the telephone
with us, Sue and Jeanette, you can actually follow along using GoToMeeting, or
again if you have a paper agenda, you'll be able to follow along as well because we'll
go through in order unless anyone would like to do it -- I'll ask this question. Does
anyone have to leave or anything and want to do any of the issues in a particular
order? Okay. If not, then we will begin with our agenda item #1.
I'm not sure that's quite large enough, so I'm going to see if I can bump
it up, which is usually easy for me, but I'm not seeing the button for that.
5:41: Usually if you go down toward the cover, toward the bottom,
Frank.
5:45: Or near the top, yes.
5:47: Yeah, nothing’s coming up.
5:55: Sorry. Ah, there we go. Issue No. 1 having to do with payroll
records and affecting Rule 500. All of our issues are in Division 105. Those are the
rules governing the Employer-At-Injury Program, and the issue is that stakeholders
are unclear on the correct way to calculate wages for salaried workers for a partial
payroll period. By way of background, effective January 1 of 2017, the division
removed the rule that was formerly numbered OAR 436-105, Rule 500 - and then I
won't read some of the very specific citations but you can see them there - providing
for how to calculate the allowable reimbursement amount if neither the payroll
records not supplemental documentation show the amount of wages earned by the
worker for reimbursable partial payroll periods. Senate Bill 1587, that was in 2016,
amended another statute, ORS 652-610, and it was effective January 1, 2017. It
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requires employers to provide employees itemized pay statements that show,
among other things, dates worked, rate of pay, gross wages, net wages, number of
regular hours worked, and the number of overtime hours worked. However, the
statue does not require employers to provide itemized pay statements for salaried
workers that are exempt from overtime compensation. The division has received
questions from stakeholders inquiring on the correct way to calculate wages for a
salaried worker when the wage subsidy period for EAIP includes a partial payroll
period.
Options include: Add back the paragraph that was removed effective
January 1 of 2017, and this is the paragraph, I guess, “If neither the payroll records
nor supplemental documentation shows the amount of wages earned by the worker
for reimbursable partial payroll periods, the allowable reimbursement amount may
be calculated as follows: Divide the gross wages by the number of days in the
payroll period for a daily rate and multiply the daily rate by the number of eligible
days.” An option is often to make no change if we decide, or if there’s kind of
collective wisdom is that the rule is not fundamentally flawed or that a change maybe
have some unintended ramifications and when we actually -- like it may do more
harm than good. So, that's often an option is just to make no change, or anything
else that you may come up with as a better solution. So with that, I'll turn it over to
you folks and see if you have advice for us on this issue.
8:53: Jaye Fraser. I was trying to remember why we actually had
deleted that in 2017 and did not bother to go back and look, but SAIF has been
following the rule as it was written then. And so, we know how to do it, but it doesn't
make any -- I don't think there’s any problem with adding language back if there are
stakeholders who were confused.
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9:21: The one thing I would question -- so, we do discretionary
bonuses depending on what the year is and the contribution, so would that be
included in the gross wages?
9:37: Okay. Anyone? Would bonuses --?
9:41: We typically don't reimburse on bonuses for EAIP. It’s 50% of
the wage that they earn during that day.
9:47: But if we -- if you --
9:48: Or 45%.
9:49: -- add that in and you do gross wages -- divide the gross wages.
So, you would do gross wages of what? I mean is it the annual or gross wages for
the month or --?
10:02: It’s gross wages for the day, so the period, the EAIP period.
10:08: So, if they're paid monthly, yeah, then when you divide the
gross wages for that month, how many days they worked and then multiply by the
days --
10:17: Okay. So, it’s not like a 52-week lookback when you're trying
to find the average weekly wage.
10:22: No, no.
10:23: This is for --
10:27: Good question though, thank you.
10:28: Uh-huh. I think adding the specific language back in probably
would just make it a little clearer because a lot of the language is directed towards
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non-salaried employees.
10:39: Right.
10:39: And so when you have a salaried employee, it’s like well, I can't
get the documentation that I'm required to have but this kind of makes is clear that
you have this other alterative and option.
10:49: Okay. Thank you.
10:51: I think the bonus information’s a little bit unclear. It’s not to say
within the rules that it’s excluded.
11:00: Right. Yeah.
11:01: Because what if they got the bonus in that month that they
were possibly injured, so then that would be included.
11:12: I'm looking at Donita, who’s an auditor, and I used to be an
auditor, and I audited for EAIP. I believe that, if bonuses were paid as part of the
gross wages during the EAIP period, we would be okay with that. That's included in
gross wages for the EAIP period.
11:25: Then that's --
11:26: You couldn’t add in a bonus that was paid at the different time,
but if it’s part of the gross wages for the EAIP period, there's no reason we would
think that's not appropriate.
11:38: Should you put something in definitions? There's not a
definition for gross wages. I think that's a question to clarify for everybody, including
the auditors.
11:58: I can mark that down as feedback for us to look into it more
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because there are other divisions of rules that do define wages, and you're right, it’s
not in the EAIP rules.
12:06: Yeah. It’s not, and there are so many different places where,
you know, what is a wage --
12:06: Right.
12:14: It’s different.
12:14: It -- yes.
12:15: Yeah. I don't know what your collective experience is, but have
people been billing for bonuses now or including that?
12:23: If it’s clear, we do. If it’s unclear, we'll just delete it.
12:31: Thank you. Bonuses was very important to bring up then.
Thank you very much. Additional thoughts before we move on? Okay. With that
then, I'll scroll down to Issue No. 2. This affects the Employer-At-Injury Program and
Preferred Worker Program overlap, and the specific rule in question is Rule 512, and
it’s Section 6. Stakeholders have expressed confusion on whether they can activate
EAIP benefits on a new claim while the worker is using PWP benefits on a separate
claim. Some background, the division adopted Rule 512, Section 6 effective 1/1/17
to ensure costs we not being reimbursed from the workers’ benefit fund for both
EAIP and PWP on the same worker during the same claim opening. The rule does
not preclude EAIP benefits from being activated on a new claim for the same worker
even if PWP benefits have been activated on a different claim. So, some options to
consider would be to revise the rule to clarify that Rule 512, Section 6 only applies to
accessing EAIP and PWP benefits on the same claim during the same claim
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opening, not different claims for the same worker; to make no change; or some other
option that we may come up with. Your thoughts?
14:03: So, that's confusing to me. So, we -- in AA we are very short on
workers. Everybody else is, but I think in agriculture it’s more problematic. So, we
have workers working in the orchard during the day, and then they work in the
packing house at night. And this hasn't happened, but I can see maybe this
happening, it could happen, what if they were injured in the orchard and then got an
EAIP through there, and then they get injured in the packing house. I guess this
language is confusing to me. Could both employers access EAIP at the same time?
14:39: Sure. I mean they're two different claims.
14:40: Okay.
14:42: Two different employers, but if it’s the same employer, then we
have the -- in the rules there’s the concurrent injuries section of the rules that, if
somebody’s injured and on light duty and then gets injured again and then they can't
go to that job, they could start -- this one would pause. They would open an EAIP
claim here. When that one ends, they go back to the other one. And this is talking
specifically about Preferred Worker Program with the -- because there's a rule that
says you can't activate the Preferred Worker Program and Employer-At-Injury
Program at the same time, so the confusion has been if an employer hires a
preferred worker and they're getting preferred worker benefits and then the worker
gets injured, can they access EAIP?
15:24: I see.
15:24: And so, we wanted to clarify that, yes, because it’s a separate
claim the preferred worker benefit, the wage subsidy or whatever, would pause while
they're on EAIP because they're not in that preferred worker job while they're on light
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duty, and then when they go back to preferred worker job, those benefits would
resume, so.
15:40: Thank you for the clarification.
15:43: Kathy, do you think this changing the wording would actually
make it more clear?
15:50: Well, I'm not -- I don't really use the Preferred Worker Program,
so I didn't understand that piece, that connection, so I’m (unintelligible).
16:04: Additional thoughts on whether it is a clarification or whether it’s
not needed or --? Okay. Thank you. We're going to move on then to Issue No. 3
affecting the end of eligibility, specifically Rule 512. Stakeholders have expressed
confusion about the end of eligibility occurring at the earliest of a list of reasons
under Rule 512. Some background, the Division’s reimbursement team has
received questions from multiple employers regarding the end of eligibility after a
worker leaves employment. The employers express confusion over when eligibility
ends. When an employer no longer meets the eligibility criteria under Rule 510,
Section 3, which requires them to employ an eligible worker, they are no longer
eligible. Instead of using the last day they are employed an eligible worker, they
were using the claim closure date as the end of eligibility date. The end of eligibility
date is the date that begins the timeframe in which employers or insurers have to
submit a reimbursement request. The reimbursement request in these cases were
not timely because the employer submitted the request more than one year and 30
days from the end of the eligibility date.
Some options to consider would be to revise the rule to clarify that
eligibility for EAIP ends at the earliest for any of the reasons listed under Rule 512,
to make no change, or perhaps some other alternative. Your thoughts about that
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clarification?
17:41: I just want to clarify for myself. Eligibility still ends with like the
issuance of the notice of closure, not with an employee terminating employment,
regardless of if it was voluntary or -- they don't actually end eligibility under EAIP just
because they leave the job at injury.
18:01: Yes.
18:03: Well, the EAIP period would end --
18:05: The EAIP period would end but the --
18:06: -- because --
18:08: -- eligibility --
18:09: Well, so in order to be eligible for EAIP, you have to be
employing an eligible worker.
18:12: Yes, uh-huh.
18:12: So, if that worker leaves, that EAIP period ends and they're no
longer eligible for EAIP for that claim for anything past the date the worker left, and
that would start the timeframe, the year and 30 days, to request reimbursement.
18:25: So, that would be --
18:25: Because that's the end of the EAIP period.
18:27: The date that they leave the employer becomes --
18:28: Correct.
18:29: Okay.
18:29: Because they're no longer employing an eligible worker, and
that's why we want to clarify that.
18:33: Okay. Then -- yeah.
18:34: Yeah.
18:36: Because that was not my understanding, so. Okay, there you
go.
18:39: It’s come up quite a few times, so.
18:39: Right, right.
18:40: And we wouldn’t want someone to miss reimbursement
because, you know, the worker leaves and maybe the claim doesn't close for six
months, and then --
18:49: Right.
18:51: Okay.
18:52: One of the things, it’s not directly related to this but kind of
becomes somewhat related, the one year and 30 days was taken out of the rule -- or
the one year was taken out of the rules last time. So, the way the rules currently
read is you have one year and 30 days to submit a reimbursement request to your
insurer. So, if we receive a reimbursement request on one year and 29 days, it
gives us one day to process possibly 300 pages of wages for a potential wage
subsidy with the WCD. So, my understanding is the way the rules used to read is
the employer had one year to get it to the processing agent, and then that gave the
insurer another 30 days of paperwork time to get to WCD for the reimbursement. If
we could get that restated the way it was, that would help us out and not kind of put
us in a processing bind.
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19:46: I've heard -- this is Sue on the line. I didn't hear that last piece,
but my question would be with regard to how would some self-insured employers or
TPAs know that an employee was no longer employed?
20:07: How would the TPA or maybe the insurance company know
that an employee was no longer employed?
20:16: Right. Even in the case of the City of Portland, we sometimes
don't know when -- I mean we have, you know, up to 8,000 employees, and we don't
know on any given day whether they're employed or not or whether they're -- I mean
if they're still -- if their claim is open, we would know, but if it’s, you know, -- if
someone is done with their modified duty or whatnot and they then get terminated or
leave a week later, you know we wouldn’t know. We would use the notice of closure
date instead of the termination date. And the notice of closure date could be two
months after or more.
20:59: Okay. Thanks, Sue.
21:02: But they have a year to determine, to figure out if they're
employed still or not. I mean -- but I think you’d be able to tell by payroll, right?
21:11: Well, but EAIP would probably end before -- you know, we
wouldn’t necessarily know that they were --
21:15: But there's a year and 30 days beyond that, so is the question
how would you know within that year if somebody was still employed with your
company?
21:24: Yeah. I guess, Sue, would you somehow become aware
during the time in which you would have to bill, or have you actually kind of lost
chances to bill because more than one year and 30 days has gone by?
21:39: I don't know. Jeanette, can you speak to that at all? Because
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this is the thing --
21:44: I haven’t actually run into that particular issue yet, but that's a
good question. So, if the person’s gone and I wouldn’t know and a year later I'm
processing my EAIP and then -- yeah, how would I know, oh, that person left, you
know, 10 months ago or a year and a half ago, and I have it tasked out to process
my EAIP because it’s less than the one year and 30 days from the notice of closure.
So, I understand what you're asking, and so that's a good question, and how would
we determine? Somehow, we will have to figure that out.
22:24: Yeah.
22:24: At this point, I haven’t run that issue yet because a person has
left.
22:32: We run into it a lot because we are not an employer, so we
don't have any employment records. We just have to go by what we see in the claim
file, and we're not provided that information until after the claim file closes.
22:44: So, at that time --
22:45: So, we usually start with the notice of closure and then we start
looking through the file, and occasionally, while somebody’s on EAIP, there will be a
notification that they --
22:54: -- you know, left the company but not necessarily always.
22:59: So, it sounds a little like a --
22:59: Right.
23:01: -- communication or education piece on the employer’s part.
23:02: Yeah. And we deal with --
23:02: Yes.
23:06: Yeah.
23:06: -- because it’s just we get a list of employers from the --
23:08: So, it sounds like an education piece.
23:10: -- TPA, but.
23:12: So, have you missed out on reimbursements currently because
it’s been untimely? Because this isn’t a new rule, we're just clarifying the rule that
exists.
23:20: Uh-huh. I don't know, maybe because of the way we've been
doing it, we haven’t --
23:24: That's right.
23:25: I don't see if they get kicked back. That doesn't come back to
me, so I don't really know if that has been an impact or not on anything rejected, but
it’s -- because I know that, --
23:35: Could be.
23:34: -- when I have done it, you know when I've seen somewhere,
oh, I do know somebody left, I was not aware that I needed to put that end of
eligibility on the date they left the employer.
23:43: Sure.
23:47: The notice of closure.
23:48: So, that was just a misunderstanding I think on our part.
23:50: Right.
23:50: So, we’ll definitely --
23:52: On our end, we ask employers upfront when they submit an
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EAIP reimbursement request, and this is on our form that we send them, so we
know right away when we start the process whether it is, or it isn’t. I know that
termination and separation is in this scenario.
24:07: So, don't we get -- well, from SAIF, we get -- after the employee
is released to regular work, we get a notice from SAIF, hey, don't forget about your
EAIP. I can't imagine -- and it irritates me. I love it, but it irritates me because it’s
like I'm not going to do it right now because I don't know. I wait a few months, so I
don't -- so, you guys aren’t getting -- or the employer on that, your situation, you're
not getting?
24:41: Well, we don't hear about the claims until they're closed. We
receive lists of closed claims.
24:45: Okay.
24:46: And that's where we go back because a lot of times, as you
know, workers may go back to regular work, but then a month or two later, they go
back on light duty again. So, we receive each month a list of these are the claims
we closed last month, please review them to see if they're eligible. And so, then we
start going through the claim documentation to determine that.
25:07: So then, the employer wouldn’t get a notice when the employee
is released for regular work from their insurer that they could pass on to you?
25:15: Our self-insures.
25:17: Oh, sorry.
25:19: Sorry.
25:20: So, I think the addition of the language would be a good choice.
I don't necessarily -- I do get that notice from SAIF. I'll usually ignore it until the
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claim closes just because I wait, and I didn't know that I ran that risk. So, that's
news to me, so I like the fact that I now know that, but it would be good if it was in
the rules just so that you're clear that that -- I'd always understood that it was claim
closure that triggered that, and so I definitely think that would be a good addition for
employers who are trying to follow the rules and not lose out.
26:02: You know, Matt, I think that this is a good time for me to say
SAIF agrees adding the language and trying to clarify it is good. You know, we
spent some time yesterday as a group going through these and talking about issues
with EAIP, and the thing that I am struck with every time I sit down and talk about
this program is how many scenarios there can be. And I think it’s great to clarify the
rules. I don't think it’s possible to draft rules that will cover every scenario.
26:37: Sure.
26:37: So, it just -- the department used to have frequently asked
questions available to employers and insurers and self-insured employers and TPAs
and processors who could go and say, gee, I wonder if this question has been
asked, and if it hasn’t, they could ask a question, and the department could provide
advice. Obviously, it’s not binding advice, but it just seems like this is a program
where, because there are so many nuances, that it would be very helpful to those of
us who are trying to follow the rules, if there was some of that guidance also
available. Just had to get that out there.
27:19: Sure.
27:19: Like maybe on the website, like a frequently asked questions.
27:22: Yeah, yeah.
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27:24: Okay.
27:25: There used to be something out there with that, so.
27:27: Well, that's definitely something that we will look into, and also
you know we do have an EAIP email address that anybody at any point in time can
ask a clarifying question, and put that --
27:40: We were told, and I don't know who it was --
27:43: Yeah.
27:45: -- because it came through staff, that nobody was looking at
those anymore, so stop sending questions.
27:51: To the EAIP?
27:54: Yeah. We still get them.
27:54: Yeah.
27:55: Yeah, we look at it.
27:57: But it’s great to have those questions, and obviously you're
getting questions.
28:00: Sure. Well, and then we know what are the frequent --
28:01: And I guess if they only go black hole for the rest of us.
28:03: Yeah.
28:03: And I thought that advice you're giving to one is useful for the
rest of us, and I think I have heard feedback from employers. They don't want to use
to program because it’s complicated, and they're afraid of not getting reimbursed.
And you know how much we use the program, so I just think that the more
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information that the department can get out there for those of us using the program,
the better.
28:35: Sure, yeah. Thank you.
28:37: Yeah. I can just say in general that, if you ever try to reach the
department and you don't get a response, please don't let it drop. Just contact one
of us and let us know.
28:47: Okay. We will.
28:53: Yeah.
28:54: And Sue and Jeanette, thank you for raising your concern. I
don't know if we can up with a possible solution for it, but it is good to know that, you
know, some especially large employers may not always be aware when someone
terminates employment, but I do appreciate it. If you have additional thoughts to
provide to us, you're welcome to now, or you can send something by email or just
pick up the phone later, but.
And Rob, you raised a question, that I don't want to let just drop as
well, about needing some time to process, you know, if you get it late. Like you
mentioned, you know one year and 29 days, it leaves you one day to process the
request, and so you said the rules used to give you a window of 30 days. Is that
how it used to work?
29:41: Right. It used to be one year for employers to submit the
request to the insurer, and then the insurer had another 30 days to submit to
reimbursement to WCD. And so, they took out that middle part and said, well, the
employer now has one year and 30 days.
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30:02: That's reasonable.
30:04: I think so too, and as an employer I didn't even know they took
that away. It’s still been a year in my mind, so I don't know that many employers --
30:10: We haven’t been encouraging it because it’s a hardship to
process.
30:13: Right.
30:17: It seems like that's a reasonable -- I mean we do want -- it
helps the employer as well, right? It’s gonna help the insurer, and you don't run into
that situation where, exactly like Jaye said, you’ve got employers who are buying
something, and then all of a sudden, they think can't get reimbursement because
they misunderstood how the timing needed to go, so I certainly encourage the 30-
day lead for insurers to process.
30:47: Then ultimately, I mean why wait a year? If you know your
worker’s terminated, you can't get a wage subsidy while on green ways because
they're not working for you and you can't make purchases. It just helps us, at least
from my perspective.
31:02: Okay. Thank you. Any additional thoughts before we move on
to our next agenda item? So, we're up to Item No. 4, verification of qualifying
purchases. This affects Rule 540, Section 5. Currently the division reimburses for
EAIP purchase after receiving a request and without determining if it is a qualifying
purchase. It is during periodic audits that occur a few years after the reimbursement
that the determination on appropriateness of the reimbursement is made.
Determining if reimbursement was appropriate after the fact can result in
overpayments and subsequent recoupment from insurers.
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Some background, the current process is for the insurer to submit
Form 2360, that's the Employer-At-Injury Program reimbursement request form, to
the division within one year and 30 days from the end of the EAIP period. The only
requirement for reimbursement is the form. There is no verification that the
purchase or modification is appropriate before it is reimbursed. It is during our
periodic EAIP audits that auditors review the documentation and make a
determination on whether the purchase qualified for reimbursement. If it is
determined the purchase did not qualify, the insurer must pay the money back to the
division. The division will still conduct periodic EAIP audits, and all reimbursements
are subject to audit. Recently, the division has become aware of some misuse of
the EAIP for purchases and modifications.
The only way to ensure purchases and worksite modifications do
qualify for reimbursement upfront is to review the documentation before making the
reimbursement to the insurer. This should result in fewer requests for repayment
during an EAIP audit. When a reimbursement is paid without any verification that it
qualifies, the employer may believe that the payment means the division has
reviewed the purchase and they have been reimbursed because we determined that
it qualified. A review up front will provide the division a chance to educate an
employer about which purchases and modifications do qualify for reimbursement
and also provide more opportunity for the division to request clarification before the
reimbursement is made. The documentation is currently required to be in the claim
file at the time of the reimbursement request.
The division is not requesting the documentation for wage subsidy
reimbursement requests. The majority of EAIP reimbursements are wage subsidy,
roughly 90% of them for both 2017 and 2018.
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So, options would be to require the documentation, and then it lists
where the documentation is described in the rules, in Rule 500, with the
reimbursement request form for EAIP purchases and worksite modifications only, or
to change Rule 540, Section 5 to -- and then it provides the wording there, basically,
describing what we just went over. And then, you know, there may be other options
for making the reimbursement process smoother while ensuring purchases and
modifications are appropriate. And so, we would welcome your advice on that, and
so, you know, down below we don't know what kind of a fiscal impact that would
have. The documents have to be on file, so I think there would be some mailing
costs, some processing costs certainly, to provide that information up front. So, with
that, I’d like to open it up and get your advice.
34:33: Can I ask a question? How much reimbursement has the
department needed to ask for from insurers, self-insured employers, blah-blah-blah -
- and I mean we’re looking at 2000 and what? You said 2017 and 2018. As a
percentage of reimbursements from WBF, how much of that has the department had
to ask back after audit?
35:04: We haven’t done an audit of those years, so I don't know those
numbers.
35:07: Okay. So, --
35:09: I can tell you that we've taken enforcement action recently.
35:12: Yeah. Okay. But how much?
35:14: Several thousand dollars from one.
35:15: Several thousand.
35:16: Okay, one.
35:16: -- on others.
35:19: I didn't -- so, let me push back on this a little bit.
35:21: Okay.
35:23: Right.
35:25: Okay.
35:28: And we appreciate that.
35:28: And to the extent that we have to go back at an audit and claw
money back, we don't want to have to do that. And the documentation is supposed
to be in the file anyway.
35:41: Right. Oh, absolutely, but I --
35:43: Let me understand how -- so, I'm from a small town, and we
don't mess with doing stuff wrong as much as we can because everybody will be -- I
will be on a front page, so I follow the rules. I don't under -- help me understand how
an employer can mess with this program and get something reimbursed that wasn’t
eligible. I don't understand how they could do that if you --
36:10: Well, --
36:10: We had a case where the doctor said do an ergonomic
evaluation, and they did an ergo eval and purchased those things, but the person
wasn’t on light duty, so our understanding was that it isn’t eligible. They're just, you
know, doing a doctor recommendation, but they were not actually -- it was not
actually an EAIP-eligible purchase for doing that because it wasn’t to accommodate.
36:35: So, they --
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36:37: It was to sort of prevent the injury as opposed to accommodate
a restriction that was EAIP place. Is that correct?
36:45: Did the employer falsify the paperwork, saying the employee
was on light duty and requested reimbursement for?
36:55: Well, currently we don't request any of that documentation up
front, so they just have to fill out a form saying, yep, they're on light duty, this is what
we bought, and we currently reimburse, and then at audit, may or not catch it, so.
37:09: So, the employer falsified it?
37:11: Well, yeah.
37:15: Right.
37:18: Well, and yeah.
37:20: Even with the purchase, there's no supporting documentation
because it’s not required and submitted when you request a reimbursement.
37:25: But I thought I heard the employee really wasn’t on light or
modified duty.
37:29: Sure.
37:31: Well, that was --
37:32: Oh, okay.
37:35: Okay.
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37:37: Well, I guess our concern is how many files did we submit for
reimbursement last year?
37:48: So, for just the purchases.
37:48: Uh-huh.
37:50: A small percentage of --
37:51: And that just is -- that's a lot of -- for you all, a lot of paperwork.
The last audit that you all did of SAIF, I think we reimbursed, what did you tell me,
$2,300.
38:08: And we --
38:08: And of that, it was 13 files, 10 of whom were related to
warranties. So, they're --
38:14: Yeah, I remember that.
38:16: If there’d have been a bulletin in FAQ, that would have been
avoided altogether.
38:17: Yeah.
38:19: And so that would have been even less.
38:20: So, this makes us anxious because it creates another layer of,
from our perspective, bureaucracy. I understand what you're saying, Lou. I get it,
and we don't think we’re a problem. I understand what you're trying to do. Would it
be possible to make this a program that the department would have some discretion
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over should an employer, self-insured employer or whoever, be lax and you're
concerned about it and give you authority to require that?
39:03: We don't know this until after we do the audit.
39:03: As opposed to --
39:04: Yeah, we wouldn’t know how lax that they were until after.
39:07: Or if we receive information --
39:09: Yeah.
39:10: -- from an employee or something that they feel like
something’s off with the program. That's the things that might be going on that aren’t
-- that we didn't -- wouldn’t have otherwise gotten.
39:18: But it’s our responsibility as the insurer when we are
administering the EAIP program on behalf of the state of Oregon to do our very level
best to make sure that there’s not the abuse, that these people really -- that the
reimbursements we're asking for are following the rules, and I think we do a pretty
good job of that. Are we 100%? Probably not. Nobody’s perfect, and I just think --
just frankly, it just seems like overkill. I get why you're trying to do it, but I --
39:54: Well, we could penalize the insurer.
39:56: Well, you know what? I actually think that that -- you know, for
me, when Kathy said, go get ‘em, if there is abuse in the system, yes. I mean that is
exactly -- I mean there should be a reimbursement. I don't think if there's the
occasional problem that that's a penalty situation, but if there's someone who is
trying to get a reimbursement for somebody who’s not on light duty --
40:23: Yeah. And I don't know that they're necessarily doing it --
40:24: No, no, no, no.
40:25: -- maliciously.
40:25: Indirect, right.
40:26: They're just thinking, oh, well, the doctor said I need to get
them this equipment, so I'm buying this equipment, so I want to request a
reimbursement, you know.
40:33: But yeah, they don't --
40:36: But then it behooves us who --
40:37: -- to say --
40:39: -- sorry, it’s not --
40:40: -- to the WBF to be asking those kinds of questions and
looking, and that's what our specialists do, and I don't know. Michael, you do this
work all the time for SAIF, and maybe you can talk a little bit -- I'm putting you on the
spot, sorry -- talk about what it is that our folks go through when you are looking at a
request for reimbursement.
41:03: Yeah. So, I'm not fully aware of what its use is, but we have a
lot of situs where we get a request. We're asking the questions. We're asking what
happened to these other purchases that you purchased before, are they not
available? We’re asking, are they back to work? We’re asking how long it’s going to
take to deliver this item, what’s the followup date? So, we're asking all of that
information. I know that we've had -- I don't know what I can talk about, but we've
had an employer that was investigated. We felt -- at least I felt, the one you hinted
at, that it was completely false. It was a disgruntled ex-employee that was starting a
rival business. There’s been nothing found on that, so it’s a little --
41:42: Well, let's just say, we can't talk about it.
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41:46: And what you just said is actually not right.
41:48: Okay.
41:49: So, they haven’t reported anything to me that anything we did
was fraudulent, so we're taking the steps to ensure that we're using this program
correctly. I think sometimes we get a view that we're just trying to just help the
employers and do whatever we can to manipulate this, but we take this seriously,
protecting that fund too. So, we're doing our best to ensure that only what’s been
accessed is appropriate. So, to have us start doing a lot more paperwork on our end
for something we haven’t seen, it’s --
42:19: So, can you tell me what all that extra paperwork is because
the documents are supposed to be in the file already, so what’s the additional impact
for SAIF to submit the extra --?
42:25: Waiting for it.
42:27: So, for us personally --
42:28: Waiting. We have to send them to you -- I mean 1,000 files. I
don't -- I worry --
42:35: I don't think it’s going to slow down our process much at all if
we have the right document at all. I mean right now we do so much on the front end.
It’s just additional receipt or paperwork for us to look at. It’s not going to slow down
your reimbursement. I think that's not going to be an impact.
42:47: So, from a specialist point of view, we have an automated
system for our notes. That goes out the window because now we have to mainly
print it. We have auditors that come in, and they see all our digital records. We
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can't use digital records anymore. We have to start printing them. We have to start
putting them together. It’s not just a matter of, it’s in the file, it’s easy for you guys to
look at it. If you had access to our files, that would be great, but that's not the case.
So, it is a lot of extra work for us to put that paperwork together, to print it out, to go
through and order it where it’s in the file naturally otherwise.
43:13: Uh-huh.
43:15: So, I definitely think it will be an impact for us.
43:18: For the 1,000 -- how many of the 1,000 that were purchased
last year? So, out of -- the percentage is very small compared to what you guys are
typically requesting.
43:26: We do about 5,000 reimbursement requests, so it is --
43:29: But for the purchases, it’s a very small percentage.
43:33: Percentage-wise, I guess you're about -- on a desk level, where
I'm doing like 300 of those, that's not small impact.
43:40: Right, right.
43:42: You can do about three to four wage subsidies a day. A
purchase takes an entire day plus followup.
43:48: Uh-huh.
43:50: Yeah.
43:51: Dustin, it looks like you had your hand up.
43:53: Yeah. My question is one of, like, to your point about like the
efficiency in terms of like your department. You know, for SDAO, we process quite a
few less than SAIF on an annual basis. I'm the only person who does it for us, and
we do it for employers, so you know, we do all the purchases. They don't have to
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incur the costs. We request the reimbursement for us, and for the sake of, you
know, our accounting department, I know they like to get reimbursed as quickly as
we can request them just for their purposes. And so my main question would be
based on the size of your team, if everybody then had to submit all the supporting
documentation for every request, I think right now it’s like four to six weeks usually
once reimbursement requests get sent it to when we get the check back from the
state.
44:44: It’s probably -- I don't know. Tami, is that about right?
44:47: Approximately.
44:49: Yeah. I would say probably on the four-week side for it to go
through fiscal.
44:54: Yeah.
44:56: So, I just don't know. I mean with that --
44:57: Well, the percentage is very small. We did look at the
percentages of the wage subsidy versus worksite modification purchases, and it’s a
very small percentage. So, the impact to the reimbursement team is not going to be
huge. It’s when we have additional questions and need additional verification and
need to go speak with the employment services team and kind of --
45:19: And obviously those one-off situations --
45:20: Yeah.
45:21: -- where you're having to request further information from us --
45:22: Yes.
45:24: Yeah, impact --
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45:25: But you don't see any impact on your team in terms of --
45:28: Well, there’s clearly going to be impact.
45:29: -- just the paper documentation they have to work through.
45:30: Yeah. There's going to be an impact in just looking at it, but it’s
not going to be enough to extend any -- it’s not going to add any to the
reimbursement.
45:37: Okay. And just to follow up, I would have no problem. I mean
the onus should go on to the insurer --
45:43: Right.
45:44: -- if there is penalties. You know I think if we keep the same
system where you guys are periodically doing audits, it should fall back on us. If
we're doing something incorrectly, whether purposefully or accidentally, if there's
some system in place, we're going to be a little bit extra careful and make sure that
we transfer that information to our employers of, we have to get this information
before we can purchase this equipment, or you know, there are going to be those
penalties. I don't think there's any problem with that being -- as long as it’s
documented and we're all aware of what the possible repercussions are.
46:22: But the test for us is not whether the insurer engaged in fraud.
The test would be whether there's accountability, whether the insurer did what it
needed to do to check whether the request was legitimate or not.
46:37: Right.
46:37: Well, and in our case, I mean we handle all that. We do the
purchase of the equipment.
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46:44: Right.
46:45: So, I mean I think if you guys have a penalty system in place,
you know, for the sake of, you know, it’s taxpayer money, I think you guys can rest a
little bit more assured that, okay, if we find those isolated incidents of mispropriety
[sic], you know, we're going to get reimbursed back. It’s not just going to be us
fighting for the money that you paid. There's going to be some interest in addition to
that that's penalized, that will hopefully alleviate some of those things.
47:16: What’d you say?
47:17: A question more on the mechanics, this talks about the insurer,
whoever’s processing the EAIP, submitting additional documentation requirement,
and then there was a comment if there was questions, discussing it internally. If
there's a requirement to go back to the insurer or whoever’s processing to get
additional information, that's really not outlined, at least here, and I don't know if it’s
already in the rules, but I think we would need to know what that requirement is
because then, if it’s a turnaround time of you have 14 days or a specific timeframe to
provide that information and we have to go back to the employer to get that
additional documentation, then you're adding kind of additional complexity time
constraints on us, increasing exposure for processing and that, versus would that
purchase just be staid until submission information, so.
48:16: Well, we -- sorry.
48:17: Sorry.
48:18: Well, we currently -- I mean it’s not a lot different than the way
the process runs right now, as far as you know us looking at the reimbursement
request and having conversations with Matt’s team, and we still -- so, there's nothing
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48:29: Okay.
48:30: So, I mean I can go through the steps --
48:32: But I understand what he’s saying.
48:33: Yeah. And I'm open to discussing it.
48:34: Yeah.
48:35: I just -- I don't know that it would be handled much -- well, at
this level, at this point, we haven’t determined it would be handled any differently
than the way we're processing it now.
48:43: I've got kind of a different unique take on it, and I'll do a little bit
of reading, so if you can bear with me. We talked about the Employer-At-Injury
Program, and the word employer is really prominent in that title, but what we're really
talking about is the workers that are affected by this program. So, the fundamental
goals of the workers' compensation system include returning the injured workers to
their jobs quickly and enabling them to earn close to their pre-injury wages. One of
the ways Oregon statue accomplishes this is through the reemployment programs.
The cost of administrating the program is provided by the employer and worker
contributions to the Worker Benefit Fund. So, when I started at SAIF and the EAIP
program, we used to use the word, it’s free money, we're going to get the
reimbursement back, and it’s going to be paid for.
In my mind, this is more an investment in the worker’s ability to return
to work. The worker’s investing in it, the employer’s investing in it, and you can tell
that, you know, the impact to the worker. We've been talking about the employer,
the employer fraud, but let's put this in perspective for the worker. Workers using
return to work programs have higher wages compared to non-users five years after
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injury. Since 1997, through periods of both high and low unemployment, the
employment rate for program users has been eight percentage points to 13
percentage points higher compared to workers who have no use of return to work
programs. The wage recovery advantage was 14 percentage points. On average,
program users recovered 100% of their pre-injury wages adjusted for statewide
transit, unemployment, and wages. Results of a recent study featuring a more in-
depth use of performance measurement data show that preferred workers are more
likely to use their benefits if they have a transitional workplace under the Employer-
At-Injury Program, and that workers who complete their vocational system plans
have better employment and wage recovery outcomes if they use Preferred Worker
Program benefits.
Part of my concern kind of looking back at the history of the program,
in 2013, we had a peak of 2,140 employers accessing the program. It went to 2,072;
1,937; 1,905; 1,855; and last year it was 1,780.
50:58: And this is while we're insuring more.
51:00: There was a report done in 2000 by WCD. It says, “The recent
decline in improved placements and reimbursements appears to be largely related to
an increase in audit findings by the Workers' Compensation Division against insurers
and employers. These findings apparently have discouraged requests for EAIP
reimbursements, in that some placements may --"
51:20: Where are reading from?
51:21: This is a report for 2000 on the Workers' Compensation
Division program, the Employer-At-Injury Program, 2000, by Mike Maier. It was
published in 2001.
51:32: 2001.
51:32: Okay.
51:33: So, there's a bit of a reoccurring trend and a theme. When you
add additional complications to the process, it slows down the process, and it gets in
the way of a quick depart for workers. And the workers are truly the ones that are
dependent upon this program.
And when you look at purchases in the overall scheme, there's about
91 insurance companies that are accessing the Employer-At-Injury Program. Of
those 91 insurers, only 19 of those are making purchases. Why aren’t the other 91
[sic] making purchases? And I think it’s partly because it’s difficult and cumbersome.
And it’s -- you know we talked about the employers that are, you know, fraudulent or
maybe have questionable purchases or something like that, but we don't talk about
the good players in the system.
I got -- and WCD doesn't see these because the reimbursements don't
come through. I received a letter from a policyholder. “During an internal review of
our records, it came to our attention that the equipment you requested
reimbursement for was assigned to employee other than the injured worker.
Because the equipment was not available for the injured worker to use, we are
returning check No. ‘blank’ in the amount of $3,000 to you.” That's a check that I still
need to process and send back to WCD and say, here’s the money, plus the admin
fee that we're not entailed to. That happens over and over again in my line. I'm
tasked with sending those checks back to WCD.
There are a lot of employers that take this whole program very
seriously. Are we going to make this harder for them to access benefits? Is that 19
employers that access purchases going to be 15 and 16, 14, 12? Is SAIF going to
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be only one at the end of the day? You know, we really should be trying to make
this easier, not for our benefit, you know, not for employer’s benefits, but for the
workers that really receive the impact on this.
53:27: Can you help me under --? Oh, go ahead.
53:29: Yeah. No, I would just like to add, or maybe ask. So, we're not
requesting any additional documentation from the employers. This is all
documentation that the insurer should currently have in their files, so I'm not sure
how requesting that the insurer send documentation that they should already have to
the division would affect a worker’s return to work, especially when this is a year and
30 days after that return to work has already happened.
53:54: So, in order -- and we'll guarantee up front that the
reimbursement is going to be made. If we make a mistake or we have faulty
information, we'll reimburse that quarter right away. We're not waiting for the
constraints of WCD to say, here’s your finding, now employer here’s your money.
We give it up front, and then we get our reimbursement later. If we're wrong, we'll
eat that on our end, but that's just our business practice. If I wasn’t insured with
SAIF and I had to take a risk and make a purchase on my own, not knowing whether
it was going to be reimbursed or not, I probably wouldn’t buy that piece of
equipment, and that would delay my worker’s return to work initially.
I think there's a couple workarounds and a couple fixes to this. In
2005, WCD had some language in the rules that allowed kind of a pre-approval
process from WCD, and in 2007, that was taken out of the rules. I mean that allows
I think the upfront review of the documentation that some of the employers might
have been concerned about as to, we don't want to take the risk with this, but you
can talk to WCD first and get assurances we'll be reimbursed, then that helps us
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pass our barrier of accessing program.
I think putting that language back into the program would help. I think
publishing FAQs and bulletins that say, you know, the rules talked about reasonable,
feasible, practical abuse of the system, but there's no definition on what that is, and
so we're left on our end, well, what is abuse of the program? I don't know. We hope
we're doing this correctly. You know, so WCD could put some definitions and
categories, some direction that would say, you know, hey, if you’ve purchased your
piece of equipment during this period, you know, immediately after injury, it looks a
lot better than if you wait to the day before they return to regular work, which we
have no control over when they return to regular work. That's between the worker
and the doctor. We don't know, we can't guess, but it doesn't look good if that's
what's submitted when the employer tried on their end to get the purchase through.
So, some sort of a guideline as to what’s reasonable, feasible, practical I think would
keep us out of some of these situations where, after the fact, we're looking and
going, oh, that doesn't look very good. But if it’s the program requirements --
56:19: I think that's a good idea.
56:20: I just want --
56:20: Yeah, I think that's good. Oh sorry, go ahead.
56:21: Well, I was just going to ask about the pre-approval process.
I'm not sure how that's going to make it anymore speedy than you as a leader
holding the keys.
56:27: No, but it gives a reassurance to employers that our --
56:31: I was --
56:31: That was just to your argument about it taking longer for the
worker and the employer if you're waiting for an approval. I'm not sure that that's
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any better an option than aside from the reassurance that it’s going to be
reimbursed, but it’s not going to speed that process.
56:46: Well, and I don't think it necessarily would need to be a
requirement, but available.
56:52: Right. And it is currently available.
56:54: Yeah.
56:55: Yeah.
56:59: I'm sorry?
57:00: It’s not a formalized process.
57:02: It’s not a formalized process. It’s an option.
57:02: And think that that's -- I think the prior rule actually --
57:06: Formal.
57:06: -- is more of a formalized process, and I don't think we're
suggesting that that be something that had to go for everything --
57:11: No.
57:12: -- but would be an opportunity if there was something
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57:22: Go ahead.
57:22: We are really passionate about it, and I guess we hear where
you're coming from. I think we have some concerns about the language that's
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proposed because it’s a little unclear, and one of the things that Rob was saying is
sometimes workers come back to work at a timing that even the employer hasn't
expected because you get a doctor visit, and you think the doctor's going to just
extend the time loss or, you know, the time away or the light duty, and the worker
goes to work -- or goes to the doc, and guess what? They come back the next day.
So, there are circumstances where it looks bad --
58:04: Yeah.
58:08: They are.
58:09: Right, right.
58:09: The way --
58:11: We're at a current --
58:11: But I think that these rules are -- and again this goes to my
earlier comment about the difficulty in crafting rules to hit every circumstance. And I
don't know, maybe you'll play with this a little bit when we get back too, and some
more specific kind of --
58:31: I mean our concern is that there’s not enough checks on this.
58:33: Okay.
58:34: And the question is how we do that, whether we put it back on
the insurer, you know, whether there's another way to look at this. I will say that the
percentage of injured workers who are still back at work after quarter eight has
increased consistently, so.
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58:56: And, you know, the economy has a lot to do with that.
58:59: Yeah, yeah.
59:00: So, to the extent that the use of EAIP is going down, it may just
be that, for some employers, they just don't need it.
59:09: Right.
59:10: Well, and that could be, but I want to go back to, you know, our
concern about this will be additional burden on us, and it’s an additional burden at
the desk level. And I guess, you know, when you all do audit, you always come
knocking at our door, and so we -- I'm sure we'll see you soon. And I think it’s
appropriate for the department to audit, and I guess I would rather see you auditing
than to have this process. But we understand what you're trying to do, and if you do
indeed decide that this is necessary, I guess even a spot check for this as opposed
to -- you know, a statistically valid sampling of our reimbursement requests or
something as opposed to every single one, or something like that.
60:02: Now, Kimberly, you’ve had your hand up several times, and we
haven’t gotten to you.
60:04: Oh, I'm sorry. I'm really --
60:04: I just -- could you?
60:08: I really liked what you had to say. That rocked. I think that was
spot on, and one of the things as I'm listening to everything is that one of my gripes
since I've been doing worker’s comp is that the EAIP program does not do enough to
publicize that it’s available to employers. It doesn't explain those rules, and I don't
know why that is. I really don't because I know that the money’s in the fund, and that
it could and should be utilized to help. Like if the fund is supposed to benefit the
employees, it seems to me that it is a very reasonable choice to use some of those
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funds to educate employers and insurers. And it seems to be that we're looking now
to police, to some degree, insurers who may be abusing the system, or like SAIF,
they've stuck their neck out on the line and reimbursed an employer up front, and
now it’s coming back to them after the fact. And so, I guess what I want to
encourage is perhaps we need to be looking at doing more education and educating
not just the insurers, because it sounds like maybe there is some education for
insurers on what the proper usage of this is.
I know as an employer I pick up the phone. I don't just make
purchases. I always call SAIF, and Michael knows this because he’s the one we
call, and I say, here’s what I want to do. And I'm thinking creatively as an employer.
Look, I paid that money in and so did our employee, that's -- I have an injured
worker, I can't change the fact that I know have him, but I have him or her and I'm
going to do what I can to see, is there things that I can do that would benefit this
employee. And in the end ultimately for me, I'm always looking for not just this
employee, but for all the other employees that I have after this employee’s done
using it. Can I benefit everybody else so that I start to see that?
I remember years ago when I first started in this sector, SAIF had
published these monthly newsletters, and there was a newsletter about an employer
in Eugene or Springfield, someplace down there, and they did -- I'm not going to use
the right word -- office cleaning. And they purchased a mop bucket that, like, was
state-of-the-art at that time. I'm not going to tell you how long ago that was.
Anyways, and every time they had an injured worker, they purchased one of these.
At some point, they had enough for every worker, and they no longer had back
injuries. And it was like, that to me is the epitome of what this program is for. Like, if
you're going to -- if the injury occurs, do something that benefits everybody.
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So, I can be pretty creative, and I'm trying to think of things that -- what
don't we have that we might need that could help somebody and it’ll make these
other people, their jobs easier once this person’s done using it? So, I'm preemptive,
I do stuff, but I have to ask. And I've been told, eh, I think that's a reach, and I'm
like, well, alright, maybe it is. But you know, I'm going to ask the question, but I
always ask, and they tell me up front, yeah, we think this is -- we think you’ve met all
the requirements, go ahead, you can make the purchase. So, before I ever even
make a purchase, I've already talked with them, and they've given me the go-ahead.
And I know that that's not every --
63:34: Right.
63:34: Self-insured employers, that's not them, and other insurers may
not do that, but we do need to do more education. I could tell you as an active
member of AGC, I've actually had, at our summer conventions, a class that I put on
about EAIP because it doesn't happen. It doesn't happen for employers, and it’s like
we have all these wonderful employers who could be putting people back to work
and should be - we all know it’s that employee's best interest and it benefits the
employer too - to put that person back to work. But they don't know that it’s there,
and they're not utilizing it. The number of employers that utilize this program is
dismal.
64:10: Yeah, I agree.
64:12: And it’s -- so, we’ve got this massive amount of money sitting in
an account, and nobody’s utilizing it, and so to me, it’s like I'm grateful. I use it every
-- it’s rare for me to have a worker who hasn't utilized it unless they had an open
claim and closed before I can even think about it, because we’re thinking of the initial
time that when they get injured it’s like, now what kind of EAIP could go with that?
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But all employers don't do that because they just don't know about it, and they don't
know -- I agree. Sometimes it can be, like, overwhelming on, what do you got to do,
what do you have to get, and providing all this information, so I guess I'm advocating
that the department does some investing in some education for employers and
insurers because in the entire time I've done this, which is far too long, I've never
seen it.
65:05: I've never seen that.
65:06: I'm sorry, that's just not true.
65:07: But it is a true statement that I have never seen --
65:08: Okay. I --
65:10: It’s not true that we don't do it. I mean we could --
65:12: In fact -- yeah, I mean we have multiple newsletters. I mean
there's -- obviously the insurers are required to send information about the program,
but we also go out in conjunction with the Preferred Worker Program to go to
conferences all over the state. I'm going to a small business fair on Saturday in
Portland with a couple of my staff, and we always talk about Employer-At-Injury
Program and Preferred Worker Program, but it is. You know, I mean the Employer-
At-Injury Program and Preferred Worker Program have been around since the -
what? - ‘90s, and when we find an employer that hasn't heard about it, they're like,
oh my god, how come I never heard about this? And so, we're out there promoting it
as much as possible and always looking for opportunities to increase our outreach.
So, I would encourage anybody -- if anybody knows of any business fairs or any
other opportunities for us to get there -- we presented at BOLI. We present at OSHA
conferences about the programs. I mean we're open to go anywhere in the state.
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So, you know, we're out there promoting. Can we do better? We're always looking
for more opportunities, so. But we know --
66:12: Has the --?
66:14: -- the value and are constantly promoting and educating when
we can. Yeah.
66:21: Is it possible for us then to be looking specifically, with respect
to this issue, about educating the insurers, self-insured on the rules so that they're
more aware of what they can and can't do? Because I'm okay -- I understand. If
somebody’s abusing it, if they're flat out committing fraud, I'm right beside her. Go
get ‘em.
66:41: Yeah.
66:42: But what I don't like is us jumping to more paperwork and a
more complex system in order to catch these one-offs, as opposed to addressing,
maybe in a better way, the education of it to stop it in the first place, which then
prevents you from having to do all of that. Maybe you don't have to change your
process. Maybe doing the education up front -- and perhaps maybe that's what it is,
is that there's some required education. If you're going to utilize this program as an
insurer or self-insurer, you have to have taken this class, right? I mean that's a -- to
me, that's a very reasonable thing. Like, Lou said, this is taxpayers’ money.
67:24: Yeah.
67:24: You should have some accountability, and there should be
something that says you know how to use it appropriately. I don't have an issue,
and I would imagine SAIF and the other insurers shouldn’t have an issue with
saying, I've taken this class. We understand. It’s not that every individual has to,
but they need to -- the company itself needs to have taken it, so that they can
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educate their employees on, this is the proper usage, that as an insurer we have to
follow these rules.
But that seems pretty reasonable to me to say we're going to have this
required class that, if you want to utilize the EAIP, here’s a class you need to take.
Now you're certified in EAIP, go forth and do it. And then when you have somebody
who’s abusing, yeah, for sure there should be some fines, but I guess I'm always
hesitant to jump to the -- I don't like legislating everybody for two bad actors. I don't
like that.
68:16: Sure.
68:16: It just puts it -- it puts a lot of onus on everyone. So, for me, I
like to see if there's another way we can do it that solves the problem, that's also
beneficial to everybody. And to me, doing something like that seems like a much
better way to go.
68:31: Yeah. And does -- currently insurers are required to use the
Employer-At-Injury Program. They're requested to offer it to their employers, so one
of the biggest things we hear from employers that aren’t using the program is my
insurer doesn't offer it. So, we are working on educating insurers that you don't
really have a choice whether or not you want to provide the Employer-At-Injury
Program benefit to your insurers [sic]. I mean it is a requirement, so that's
something that we’re working on. I've made phone calls to insurers saying, you
know, you have to do this. We have an employer who wants to take advantage of
the program, so there is that. You know, we continue to educate, and yeah.
69:12: We're actually bringing insurers in next month --
69:15: Oh good.
69:16: -- to meet, not just on this issue but on a number of issues, so.
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I mean SAIF is clearly the star in terms of using our program, but that said, you
know, there's plenty of insurers who don't have as big a share of the market clearly,
but who are not using -- are not promoting the program.
69:37: Right. And you know, this just trickled into my brain, Lou, and I
think that one of the reasons insurers without a big footprint here don't use the
program is because it’s complicated.
69:49: Uh-huh.
69:51: And you know maybe -- this is very self-serving, and I
apologize for it, you can adjust however you want, but maybe you have something
like this for participants that don't have a certain threshold, that need a threshold.
Because frankly, I mean like I said, you always audit us. You know we're good if we
made a mistake, and maybe you find a way to do this for the people who aren’t
playing as much because you don't have the confidence that they know how to do it.
Just a thought. I know I'm trying to get myself out of it.
70:36: Yes, Dustin?
70:38: (unintelligible)
70:40: You know where they have --
70:40: You know, I don't know if that's -- if it’s possible for you guys
manpower-wise to put things like that on, but I mean even it’s something where it’s
an optional, you're going to have one of your EAIP representatives in an area once a
month where any representative from the insurer could come. I mean I know that
I'm always looking for opportunities for continuing education. I work with Tim Kessel
quite often.
71:05: Right.
71:06: And I'm always reaching out to him and asking, hey, when are
you going to be speaking at a conference? -- or a job fair or anything in the area
where I can come and, you know, sit through a class or attend one of his sessions.
And if there were more opportunities, I know that for me personally - I can't speak for
other insurers or other return to work consultants, people who represent this
program - but I mean there are some of us out there who would kind of eat up some
of that additional education opportunities to sit and round table and discuss some of
the concerns that we've had, problems, questions we have with the wording of some
of the rules.
But I think also to the bigger point, I think that we should take on the
responsibility as the insurers and who are providing this program and required to
offer it to our employers. Our employers shouldn't have to be the experts on this sort
of thing. That should be our responsibility. You know, at SDAO, I mean my first day
it was, you're going to buy this equipment for our employers because that's the
customer service we're going to offer, and I mean it’s on me then. I have to know
what the rules are. I have to know what is an eligible purchase. I have to know, for
the benefit of my employer, when I can tell them, yes, you can purchase this. Yes,
this does qualify. And if by some chance it came back that is wasn’t a qualified
purchase, I look bad to my company. My company’s going to get charged money
potentially. I'm going to look bad to the members and the employers that I
represent, so I mean we as the insurers, we do need to take that responsibility. And
whatever rules are implemented, I mean it’s our responsibility to know what they are
and to come to you guys if we have questions, but I think, you know, if there are
opportunities to have some additional education and have, you know, you guys
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available to us on a periodic basis where we can sit down and discuss some of
these things outside of having an FAQ or --
72:59: Sure.
73:00: -- an email address that we can send things to. I know I like to
do things face-to-face, and if you're able to get a group together, obviously you're
discussing a lot more issues and you can kind of get some collaboration and have
some group decisions that benefit everyone in the long term. But I would like to see
that done, where with that.
73:18: Yeah. No, I appreciate that, and I'll just say that, you know, we
are -- we'll go out and present, provide information to anybody on site. Charity and
Tim have gone out in the last six weeks to two different large employers that just
wanted more information about the program, so it’s something that we could
probably promote a little better. We can put something on our website. If you're
interested in learning more, you know, give us a call. We'll come out and do that
one-on-one education to any employer anywhere in the state, so. But I like the idea
of maybe an area with round table discussion. That's a good idea.
73:49: You know, and I'm going to date myself. Kimberly’s already
been this way herself, but remember John Guttin (phonetic)? Yeah, John used to be
the small business ombudsman, and one of the things that he did on the insurance
side of things was we would have round tables for premium audit. Just -- not a
formalized advisory committee process, but just an opportunity for people involved in
that program to come and talk through things because it’s a very complicated area.
You know, it seems to me that that would be another thing that would
be good for the division to do, is not have a formal advisory committee on this, but to
get together as an industry to say -- and employers who ar