Monday, August 31, 2015

The 2015 Survey Results are Posted

The OJCC cooperates with the Workers' Compensation Section of The Florida Bar each year to produce a survey. There is always a meeting at the August WCI to discuss the survey. It is an ongoing evolutionary process to build a survey that is worthwhile. 

As a historical perspective, the survey grew from a meeting of practice leaders back in 2007. When I undertook this job, relations between the Section and the bench were strained. Discussions with then Section Chair Tom Conroy evolved into a meeting of practice leaders. There, some volume of pent-up acrimony and even anger evolved through that initial meeting to a conclusion that a survey would be "a" tool, not "the" tool to begin to explore improvements in the perceived relations. Since that time, dozens of judges and attorneys have worked to develop and revise this tool. 

The survey has evolved over the years. Today it is easier to participate, with vast improvements having been made in format and organization. The initial design was linear and to participate regarding judge Winn, one had to first proceed through the webpages for judge Beck, and the rest of the alphabetical listings. For the last several years, the participants have been able to select her or his desired survey portions at the outset, and then is afforded details and questions only for those selected judges and mediators. Thus, participants can now easily omit those judges and mediators whom she or he does not wish to evaluate. 

This year, the committee meeting was attended by Ralph Humphries, John Brooks, Karla Hart, Bob Cohen, Renee Hill, Richard Chait, Michael Winer, John Lazzara, Jake Schickel, and more. There was a spirited discussion of the purpose of the survey. It began with some misconception of the nature of the survey and its results; the survey is a subjective measure. Such a feedback tool will always be subjective. Discussions as to how we might make this tool objective are interesting, but ignore the fact that surveys are, by definition, subjective. In this regard it is perhaps a counterbalance to the wealth of objective data that is gathered in the OJCC database and published annually in the various reports. 

One of the participants noted that the survey committee meeting did not include any defense counsel. That was a first this year. Last August's meeting was attended by defense counsel, as have the meetings in prior years. This year we could not find time for the meeting until Wednesday morning, and frankly by that time most of us have been in Orlando for at least three days and the energy levels are sometimes beginning to wane. There is that desire to get back to the office and the inevitable accumulation of mail and messages that occur while one is out. 

The committee agreed to change the survey again in 2016. Some questions will be combined, further reducing the volume and therefore the time required to complete the survey. However, the Mediator portion will remain the same in 2016. 

There was much discussion of the distribution list in 2015. The survey was only to be distributed to attorneys. Unfortunately, through my error, it was also distributed to a small group of non-attorneys. 

In years past, some judges and mediators have explained that they wish to be able to see the survey in its live format. This to see how the attorneys perceive it as they complete it. Those who are members of the Section actually received the invitation to participate in prior years, like all other section members. In 2015, to afford each judge and mediator the opportunity to view the survey in its live state, invitations were sent to all judges and mediators as well. 

The Survey meeting was unanimous in the conclusion that no judge or OJCC mediator should have access to the survey in its live format. That will therefore not occur in 2016. Thus, even mediators and judges who are members of the Section will not receive an invitation to the survey. 

The survey clearly states its purpose, and asks that anyone who has not appeared before a judge or mediator in the last year not participate regarding that judge or mediator. There are those who believe that some people inappropriately participated in the survey in 2015. The suspicion is that attorneys who did not appear before particular judges and mediators nonetheless completed the survey for those persons. Unfortunately, there was also some perception expressed that judges or mediators may have ignored the purpose and statements of the survey and participated in the survey in 2015. 

The results this year are published in a different format. In response to suggestions made at the 2014 survey committee meeting, the results for the judges are much more detailed this year. The subjective survey results are presented along with some of the objective information gleaned from the database. 

The volume of trial orders uploaded and the calculated average time from trial to order are from the 2013-14 OJCC Annual Report. The inclusion of these statistics from the 2014-15 data would have further delayed the publication of the survey results because that data is unavailable until the fiscal year ends on June 30 and then remains under review as audits are conducted in the process of preparing the next annual report. As that report is not due until November, the final figures could be under review until that time.

The appellate record of each judge in terms of the volume of appeals and the results was current through the spring of 2015. That data is tracked on a monthly basis throughout the year and is therefore much more readily reported for the current year than the trial order data.  

Is the survey a perfect tool? Clearly it is not. Perfection is a worthy goal, but there is little chance of humans achieving perfection. We continue to try however. We are blessed with a great bar and many thoughtful contributors. It is hoped that the survey will continue to improve. The 2015 survey results are here. All of the results are accessible on the website.

If you have questions about the Section/OJCC survey, please contact me at your convenience. We will meet as a committee again next August and you are welcome to join us. 

Wednesday, August 26, 2015

E-FORCSE and KASPER Cousins with a Cause

Since 2009, Florida has had a prescription drug monitoring program, or "PDMP." It is called E-FORCSE (Electronic-Florida Online Reporting of Controlled Substance Evaluation Program). The concept was born in a time when Florida was "a," perhaps "the," leading source of opiod narcotics in the country. The news back then was periodically peppered with stories of "pill mills" and people were reportedly visiting Florida for the specific purpose of obtaining and transporting medication. Floridians do love tourists and our beaches and other attractions are legendary, but tourism driven by obtaining narcotics?

In Florida, when a controlled substance is prescribed or dispensed, the physician is required "to report to the PDMP." Thus, Florida is collecting data on the prescribing and dispensing through the E-FORCSE

Florida does not require physicians to check the PDMP when writing a prescription. I have questioned that earlier this year in If it is Worth Having, is it Worth Checking, That post provides some references to success stories in addressing the epidemic of drug death in America. 

The CDC has complimented Florida for the efforts directed at the "pill mills." Kentucky has also won praise for its efforts. This week I sat in the SAWCA Regulator Roundtable while there was discussion of narcotics. Kentucky's Dwight Lovan referenced the efforts Kentucky has made regarding the troubling issue of drug abuse. One of the many Twitter users ("tweeters?") at #WCEC2015 posted that we are losing 40 Americans a day to drug overdose. 

In July, the  University of Kentucky College of Pharmacy’s Institute for Pharmaceutical Outcomes and Policy (IPOP) issued a report on the state of pharmaceuticals in Kentucky, and Kentucky's PDMP, called "KASPER" (Kentucky All Schedule Prescription Electronic Reporting), and it use is mandatory. This program was likewise the subject of Commissioner Lovan's comments. 

As mentioned, there have been reports of people travelling to Florida specifically to visit "pill mills." These tourists from various states would visit multiple clinics each day, over a several day visit, and obtain hundreds of pills. They would then travel home and either use them or sell them. The reselling of medications prescribed for one person, to some other person, is called "diversion." 

A less organized method (and with likely less transportation expense than flying to Florida) of obtaining medication is known as "doctor shopping." In this context, "doctor shopping" refers to a patient visiting multiple physicians for the purpose of obtaining medication. Each physician, unaware of the others, would prescribe and even dispense medication. The IPOP report claims that Kentucky's legislative efforts, including KASPER, have resulted in a 50% reduction in doctor shopping and an increase in those seeking "treatment for prescription medication addiction." FIFTY PERCENT!

Successes since 2012 noted by IPOP (the following is quoted) include: 
• More individuals are seeking office-based addiction treatment.
• The number of patients “doctor shopping” declined by 52 percent.
• 24 non-physician-owned pain management facilities have ceased operation.
• The number of opioid prescriptions to doctor-shopping individuals dropped by 54 percent.
• 5 million KASPER reports were requested in 2014.
• Each weekday, providers request more than 20,000 KASPER reports.
• For the first time in six years, Kentucky overdose deaths declined in 2013.

Drug overdose deaths in America are referred to as an "epidemic" by the Center for Disease Control. People are dying as a result of medication. They note that each day "44 people in the United States die of overdose of prescription painkillers." I am so impressed that the Tweeters at WCEC found that pertinent and worthy of communicating to their many followers. 

That 44 per day is interesting and more so tragic. There are those who argue that this is only part of the problem, pointing to the death rates from illicit drugs. That perspective certainly deserves consideration, but control of drugs like heroin is not necessarily seen as a physician or pharmacy issue. I am not saying it is not a problem, but it is beyond the scope of E-FORCSE or KASPER.

There are those who see a relationship between heroin and prescription drugs. FoxNews reported in July that "8,200 people died from heroin overdoses in 2013 alone. The efforts to restrict the supply of prescription narcotics is meeting with success. With a lower supply of those drugs, the street price of opiods has risen.   This has reportedly driven demand for substitutes, like heroin. Fox reports that the CDC  concluded "Everything we see points to more accessible, less-expensive heroin all over the country,"

The relationship is demonstrable. The CDC report referenced by Fox concludes "that nearly all people (96 percent) who use heroin also use multiple other substances, and that the strongest risk factor for heroin abuse is prescription opiate abuse." Thus, might one argue that prescription narcotics are a "gateway" drug to heroin? Texas reported at the Roundtable that their drug formulary has resulted in reduced pharmaceutical issues there. I recently addressed formularies in I am Learning More, Does That Mean I Understand More?

Well, at the Roundtable, Texas reported that there is evidence there of reduced opiod abuse and death. They credit the formulary and believe that there has not been a significant migration to the illicit alternatives like heroin as prescription opiod access is constrained. 

This opiod crisis is a complicated situation, which has national implications. The top three states for overdose death are West Virginia, New Mexico and Kentucky according to Statistica.  Florida is fifteenth on that list. I guess we can be glad that we are not in the top three on this one, but even at fifteenth, it is a significant issue here. I do not think we can assuage ourselves with our knowedge that is worse elsewhere. 

Kentucky considers KASPER to be a "national model," setting the standard for this type of effort. But, the report notes that “the war on drugs is ever-evolving. It is important that we as lawmakers act as quickly as we can to identify and prevent new drugs from spreading in our communities.” That is a quote that perhaps does more than most to state our challenge. There are relationships between narcotics and illicit drugs. Both are killing people. 

Kentucky is also reporting success with enforcement. In the three years since passage of prescription reform and the creation of KASPER, "the Kentucky Board of Medical Licensure took 196 controlled substance prescribing disciplinary actions against 142 physicians, ranging from emergency orders of suspension or restriction, to license suspensions or surrenders and revocations." I need to do some research and find out what Florida's record was in that time period. 

Attendance at national conferences like WCEC will support the conclusion that there is significant discussion about concerns with opiods. A national chorus is erupting with questions about when these are appropriate, and for how long. Some have begun suing drug manufacturers alleging that a "campaign of deception (was) aimed at boosting sales of potent pain killers," as reported by the Los Angeles Times. The municipalities that face the costs associated with opiod abuse or misuse are seeking to hold the manufacturers liable for those costs. 

It is a complex and significant problem. Some 100 million Americans are affected by chronic pain According to BusinessInsurance.com. This is "more than the number affected by heart disease, diabetes, and cancer combined." This article asserts that pain medication is a significant issue in workers' compensation. Pain is a natural consequence of injury. Even a minor injury can result in pain. I recently cracked my knee on the desk edge, and from that alone I limped most of the rest of the day. Not a huge injury, but the pain was real. We all understand that with injury comes pain. 

The Insurance Journal claims that an "opiod epidemic plagues workers' comp." The article notes that medication abuse is a problem that is growing, despite efforts to combat it. Efforts to address this are lauded, including "statewide databases" and "ferreting out and punishing overprescribing doctors" and "dealing with the growing number of pain management clinics." Thus despite the impressive statistics touted by Kentucky and the formulary success noted by Texas, the industry still perceives not only a problem but one that is growing despite our best efforts.

We have pain. We see evidence that pain medication use can have serious implications. So, having been a leader to the PDMP concept in 2009, what is Florida doing now to address this complex problem? Will Florida move to mandatory reference of the E-FORCSE before medications are prescribed or dispensed? If we have the data, why aren't we mandating its use?

Will Florida move to a forumulary. I hear increasing rumblings of this. There seems to be some misconception that such a formulary is only possible if we likewise adopt treatment guidelines and/or some commercially produced impairment guides. The references are "that is how Texas did it." But, it appears that a forumlary could be easily implemented as a stand-alone improvement to our efforts. 

Florida already has impairment guides. After a long experience with the AMA Guides, we moved to our own Florida Guides twenty years ago. I have heard no explanation as to why those guides are inconsistent a drug formulary. Likewise, while treatment guidelines might well compliment a forumlary there is nothing to support that one cannot be implemented without the other. 

If we adopt a forumlary by legislation or regulation, will that mean a quicker process for recovering workers to obtain their medications from the pharmacy? There is much to discuss. I struggle with the various implications, but I consider myself privileged to be able to learn about these subjects from the industry and professional and regulator luminaries at the WCEC this week. 

Monday, August 24, 2015

The NAWCJ College

This week (08.24.15), the National Association of Workers' Compensation Judiciary (NAWCJ) will present its seventh annual Judicial College in Orlando. I have been privileged to be associated with this organization since it inception. The premise of the NAWCJ and its annual college is a recognition that there were no educational opportunities in the marketplace for adjudicator education focused on workers' compensation.

In developing and presenting curricula focused on filling this need, we have found that there are a variety of distinctions between state workers' compensation programs. There are also a multitude of similarities. The education has been invaluable. The opportunities for collegiality, commiseration, and comparison have been equally beneficial. 

We worked through the day yesterday preparing. A special thanks go out to President Michael Alvey (KY) and Past-Presidents John J. Lazzara (FL) and Ellen Lorenzen (FL). We hold this vent in the midst of a huge workers' compensation conference, perhaps the biggest in the world, #WCEC2015. 

We had 45 of our members kick-off our conference yesterday by volunteering in the 28th annual Earle Zehmer Moot Court Competition. I am proud of that and thankful to these selfless volunteers. I wish I had been afforded the chance that those 22 teams from 15 schools had. it was a great learning opportunity, and each team I saw yesterday was worthy of the competition!

A Mississippi appellate opinion in May, Blackwell v. Howard Industries, which was reported by WorkCompCentral, reminded me of some of the distinctions and similarities among various jurisdictions.

Procedurally, Mississippi has an appellate process unlike Florida's. In Florida, most disputes regarding workers' compensation benefits are determined by a Judge of Compensation Claims (JCC). Exceptions to this rule include medical reimbursement disputes, which are determined by the Division of Workers' Compensation, and workers' compensation liens against third-party recoveries, which are determined by the Circuit Courts. 

Once a JCC decides a case, the parties are entitled to review by the Florida First District Court of Appeal. It is a streamline process. With all cases being considered by one appellate court, the chances for conflicting appellate decisions is minimized. There are those instances in which the First DCA disagrees with itself, which sometimes lead to "en banc" review, where the entire court decides a case. Generally, en banc cases historically provided predictability to the marketplace. 

There are still some other opportunities for conflict. In considering whether worker's compensation immunity applies to a civil suit, Circuit Courts around the state interpret Chapter 440. Violations of 440.105, essentially a "fraud" statute, are prosecuted in Circuit Courts around the state. Appeals of these decisions flow to the District Courts geographically distributed around the state, and the result can be conflicting statutory interpretations, or at least allegations of conflict. Such conflict was recently in the news in Brock v. State of Florida

There are also opportunities for a single court to disagree with itself. Currently, the marketplace waits for Florida's Supreme Court to decide how to interpret 440.15. The First District has published multiple interpretations. The entire court participated (called "en banc") in Employee Leasing v. Hadley in late November 2011. 

About 15 months later (02.13) in Westphal v. City of St. Petersburg, a panel of the Court disagreed with that en banc precedent and concluded that 440.15 is unconstitutional under "natural law." The entire court later heard the case  and issued an en banc decision in September 2013, Westphal en banc. That decision reverses Hadley, and essentially overturns the Westphal panel decision without much discussion of the "natural law" constitutional conclusions in the earlier panel decision.

So, it is possible, though not common, for the Florida marketplace to be presented with conflicting appellate decisions regarding workers' compensation. The Mississippi case in May illustrates the appellate process there. Mississippi has a Workers' Compensation Commission, where Florida has a Division of Workers' Compensation. 

Their Commission hears appeals of workers' compensation cases. If a party wishes further appellate review after their commission hears an appeal, the party may appeal to the Circuit Court (a court of general trial jurisdiction there). If dissatisfied at that stage, the party may appeal to the Mississippi Court of Appeals, and from there to the Mississippi Supreme Court. Though this path and process may seem alien to Floridians, it is not unique. Georgia has a similar process as does Virginia.

A major distinction between Mississippi and Florida is the manner in which decisions are made regarding the admissibility of evidence. Florida applies the rules of evidence to workers' compensation proceedings. As regards admissibility of evidence, the rules in Florida are the same in proceedings before the Office of Judges of Compensation Claims (OJCC) as they would be in the Circuit Courts. 

Mississippi has an evidence code also. But it does not necessarily apply in workers' compensation proceedings. The proceedings in Mississippi workers' compensation are more informal in general. Conferences are held there, in which solutions are suggestions or intimated to the parties, and resolutions are reached through these discussions. Many of these are not recorded, but are "off the record." It is not "mediation" per se, but it is leaning toward alternative dispute resolution. Now back to that May decision in Mississippi.

In Howard, the injured worker was appealing to the Circuit Court. So the administrative process before an ALJ and the Commission had concluded. On appeal, he failed to file a brief, and the Circuit Court dismissed his appeal (appeal I). The Mississippi Court of Appeals reversed that dismissal. Although the Circuit Court had issued a "notice of deficiency" so that Blackwell would know he had erred in not submitting his brief, the Appeals Court concluded that the Circuit Court should have sent "a second notice of defiency"" before sanctioning him, and that "lesser sanctions, rather than dismissal, would have been appropriate."

With the case then back in the Circuit Court, Blackwell submitted his brief, but attached to it an Internet article which Howard (the E/C) contended was "inadmissible hearsay [and] irrelevant, [it] lack[ed a] proper foundation [and it could not] be authenticated." The Circuit Court dismissed the appeal again for failure to comply with procedural rules and for submitting this Internet article to supplement the proof of his allegations.  

That decision led to the Appeals Court decision in May. The Appeals Court concluded that Howard had essentially waived its arguments regarding rule violation because these were not raised by Howard soon enough, and because Howard never argued that it was "prejudiced or unfairly surprised by discrepancies between Blackwell's notice of appeal and the issues . . . raised in his brief."

This is not dissimilar to the law in Florida regarding disclosure of evidence. When evidence is brought to a proceeding here, it should have previously been disclosed to the opposing party(ies). When that does not occur, and someone involved claims "surprise," there is an analysis of whether admitting or considering that evidence would result in prejudice or actual harm to the party complaining about that evidence ("objecting").

But, Mississippi has that analysis of prejudice when a hearsay objection is raised. The question being about the timeliness of the evidentiary objection and the prejudice from the allegedly improper evidence. This is an interesting process and analysis. The logic is apparent, but it is still a bit different that how a Florida case might be considered. 

This morning we will kick off the Seventh Annual Judicial College with an evidence program featuring Florida's undisputed heavyweight on the subject, Professor Charles Ehrhardt of Florida State University. We will have examples of trial on videos produced by judges in Kentucky, Mississippi, and Pennsylvania. It is a great way for us all to know more about evidence as we need to, and to better understand how other jurisdictions deal with these complex and sometimes difficult decisions. 

We will also have a comparative law panel with judges from five states discussing the similarities and distinctions between and among their jurisdictions. Bruce Moore (KS) will moderate and Scott Beck (SC), Glen Goodnough (ME), Kenneth Switzer (TN) and Brian Watkins (WA) will be on the panel. Comparing, contrasting and considering, all of our attendees will grow as adjudicators this week. Welcome to Judiciary College 2015!


Wednesday, August 19, 2015

Electronic Filing Expenditures and More Changes Coming

Florida workers' compensation, the OJCC, was not the first to deliver the promise of electronic filing. It was among the first however. The Florida State Court system lagged behind the Office of Judges of Compensation Claims, which instituted the process early in the Twenty-First Century. 

The OJCC deployed electronic filing in stages. The full system was ultimately available to the public in late 2005, and has been repeatedly revised and updated since. We have been blessed with a dynamic and innovative little team of professionals who are constantly asking "what if" and "why can't." The success of the program is frankly to their credit. 

Some states have sought special budget allocations and built massive programs with the help of national companies. The OJCC has built a program one piece at a time. Practitioners will remember their frustration with the original electronic petition form. It had so many failings. But, today's Tesla would not exist had it not been for the crude experimentation of the Stanley Steamer

The program is what it is today because of the various process tried and developed. Yes, some innovation has been to bring more tools to the end users. Other innovation has been less noticeable, making the program more useful for the OJCC staff. In 2015, the OJCC e-filing system marks a milestone, as one million dollars has now been invested over the last 14 years to bring this system to the marketplace. 

Today, three of the five District Courts of Appeal have even deployed electronic filing. The original platform, e-DCA, was adapted from the OJCC's electronic filing platform, e-JCC. That platform was deployed at the First DCA in 2011, and the Court was recognized with a Davis Productivity Award for that adaptation. The deployment has resulted in extensive savings for the state and customers. Since then, the Fourth and Fifth DCAs have deployed e-DCA.

The Florida Supreme Court has implemented e-filing through the statewide portal used for circuit e-filing. It is curious that the Court has not embraced e-DCA. By adopting that platform, the District Courts took advantage of the dollars already invested by the OJCC and to frankly exploded onto the marketplace with a convenient and ready platform. Despite that, the Supreme Court adoption of e-filing further evidences that e-filing is increasingly mandatory in Florida. 

Recently, there has been vindication for the money spent by various states on e-filing. Florida's success with e-filing, and the minimal financial investment is notable. An audit in California in January 2015, reported in The Sacramento Bee, faulted the California Court system for "wasting hundreds of millions of dollars on an inoperable statewide case-management system." 

Bragging about our system is not new. I was quoted in 2007 comparing Florida to California. I noted then that we had built the future for a fraction of the cost. And just like in the Field of Dreams, you have come. That is "hundreds" of millions, not one hundred; that is "millions" not the one million dollars we have now spent. I am very proud of our process, progress, and success. The efficiency and productivity are simply unparalleled. Florida is fortunate to have the platforms and capabilities, without the expenditure of hundreds of millions of dollars. 

The world is populated by many good people, and some ne'er-do-wells are out there also. Some of the investment we have to make regarding e-filing is protecting data, your data, from those who would do harm to it or with it. Luckily, we are a small target and large targets like the IRS attract much more attention. But we still have to work constantly to protect ourselves and you from the Snidely Whiplashs of the world. 

Soon, we will roll out another layer of security at the OJCC. The users will not see it much. It is one of those investments that have important and tangible benefits, but which will go largely unnoticed. 

There is one thing that our users will notice though, the familiar "http://" that begins our addresses will soon be "https://" instead. To visit our website, you will not use "http://www.fljcc.org" but "https://www.fljcc.org." What a difference an "s" makes. This is part of our servers and your data being more secure. 

The old "http://www.fljcc.org" will still work if you have that as a shortcut or a link on your computer. However, it will work because when you use it, we will be "redirecting" you to "https://www.fljcc.org." That "redirecting" won't happen without you knowing; your computer will display a message to let you know that you are being redirected. You should expect that and understand that is normal. 

As we head into the fall season, watch the URL box (that address box at the top of Internet Explorer, Chrome, or Firefox) for the change in our address. When you get that message that you are being redirected, create a new shortcut and change your links for the future. 

With every innovation and improvement, I have asked your patience and accommodation. The Florida market (YOU!) has been unbelievably cooperative with the development and implementation of this program. We appreciate that, and your trust in us. We look forward to continued improvement in both the way the programming helps you and creates efficiencies for the state. 

Email me if you have questions about this change in cyber-address that is coming, david.langham@doah.state.fl.us.

Monday, August 17, 2015

Medicare Billing and the Revolving Door

In April, Yahoo News reported providers who were "Banned from Medicare. Still Billing Medicaid." They cite examples of physicians who billed for services that were not rendered or who "took kickbacks." The result was that the providers were "kicked out" of a particular "state's Medicaid system, or the Medicare system, and then showed up being paid by some other state's "Medicaid health insurance program." The story is not going away, and was in the news again in May.

The report says that the Affordable Care Act "requires that states suspend the billing privileges of most providers who have been terminated or revoked by another state or Medicare." The study cited in the story found that about 20% of those "prohibited from billing Medicare are still able to bill state Medicaid programs." 

The volume of payments was not inconsequential. Those on the list of studied "revoked providers" were paid "a combined total of at least $874,000 while revoked." The article says that data could extrapolate to "Medicaid payments to banned providers" which "could easily reach into the hundreds of millions of dollars."

The article cites examples of efforts by various states to recover funds from banned providers. Minnesota is seeking about one-half million dollars, Nevada about half that. 

There is supposed to be an effort to share data in a more meaningful manner. The Centers for Medicare and Medicaid Services (CMS), the folks who have been responsible for the approval of Medicare set-aside approval in workers' compensation settlements, is "to set up a data-sharing system that would allow states to identify providers terminated" by other programs or jurisdictions. 

CMS concedes that their new system "roll out" was less than stellar. It abandoned the effort in "early 2014" because "several states were unable to access it for at least four months." They have instead begun providing "an Excel file updated every two weeks" to allow some modicum of data sharing among the states. 

The article describes how each state is permitted have its own Medicaid rules, and definitions of the reason for banning a doctor might be characterized in a way that would alert another state not to reimburse, but might not. There will be interpretation and definitional issues.

CMS assures that it is "working to harmonize states' interpretations" regarding provider termination. It concedes that interpretation differences remain. It seems to concede that the data-sharing effort has not yet been all that it can be. 

There are efforts to stop the abuse of Medicare and Medicaid. Anyone that has settled a case in the last ten years knows that CMS can be somewhat hard to deal with, and their mandate has been to protect Medicare's interest. The goal of that process has been to assure that costs for injuries are not inappropriately shifted to these federal programs.  

In the digital age in which we live, it is difficult to understand why an agency of CMS' scope cannot program a computer to provide accurate data-sharing about providers which have been determined ineligible for payments. This should not be hard to define, standardize, collect and distribute. There need not be multiple variables. 

Whether for too many speeding tickets, reckless driving, or otherwise, virtually any state can tell what it needs to know about my driving record, revoked or not? The provider database could provide the same information, eligible or not? Certainly it could take some time to provide more information, as to when and how deemed ineligible. but eligible or not is a very simple question. 

If it is too large a nut to crack, perhaps we should start with a central system under CMS that would exchange data among a "starter set" of states. Then additional states could be brought into the fold over the course of months until it is seamless, national and integrated?

Perhaps states should begin to require providers to certify in order to receive Medicaid payments? Something like "under penalty of perjury, I certify that I have never been deemed ineligible for reimbursement by Medicare or any state Medicaid program." Perhaps some potential of criminal prosecution would help.

The inability of CMS, an agency of extraordinary magnitude, to develop and deploy a database of this importance is not encouraging. It is hoped that better news is coming soon on this front. Perhaps in the meantime, the states can figure out how to stop or at least slow the revolving door?

Wednesday, August 12, 2015

If Workers Compensation Were Nationalized

In 1972, the Report of the National Commission on State Workmen's Compensation Laws was published. This link leads to a page that provides access to the various portions of the report, There are those who advocate a return to the table for reconsideration of the subject of workers' compensation, from a national perspective. 

There are those who are critical of the workers' compensation system. More aptly put, they are critical of the various and diverse assortment of workers' compensation systems across North America. Distinctions and perceived failings have been highlighted this year by ProPublica and OSHA; some have been critical of those recent stories, suggesting they are curiously timed, coincidental, and lack a broad perspective. Others applaud the fact that comp is getting some attention. 

Some in the market advocate reform while others seem not as eager. When the subject is discussed, reverence of the reform seems to wax and wane depending on what "reform" might mean. It is a term that is open to interpretation. Does that mean an "opt-out," more benefits, larger benefits, changes in evidence, alteration of decision making, etc.? It seems to me you cannot decide if you support "reform" until that is defined. 

I had the opportunity years ago to give a speech about workers' compensation adjudication. In it, I noted that two critical elements of an adjudication system are transparency and predictability. Given a significant volume of information regarding possible and potential outcomes of disputes, parties may be empowered to resolve many of their differences through negotiation or an alternative process such as mediation. This is an adaptation of an old quote whose source I have not found "know the law, know the facts, but more importantly know the judge."

After the speech, I was asked by a member of the audience about enforcement of uniformity. That is, how could the Florida adjudication system be changed so that outcomes would be more similar or even identical regardless of which judge the case happened to be assigned. The inquirer wanted to know why I could not mandate particular outcomes, essentially telling judges how they would rule in particular instances or situations. 

I cautioned that this outcome might not be as desirable as one might think. Without judicial discretion, all outcomes might well be identical. Depending on personal perspective regarding the outcome, that could mean identically favorable or identically unfavorable. In other words, the decisions might all be the same, but that might mean you individually either love them all or hate them all. So uniformity might not be that desirable.

By the same token, if decisions are reduced to some formulaic calculus with unwavering predictability, then why would judges be needed? If we simply need a series of values assigned, formulas defined, calculations performed, then it is likely that the good folks at IBM could build a machine to replace judges. Nearly two decades ago, their machine "Deep Blue" defeated the world's chess champion. Jon Gelman recently wrote a piece where he suggested that Judges could be replaced by ATM machines; similar prognostication?

If the United States instituted a national workers' compensation process, what would it look like? Before one advocated for or against such a process of nationalization, would it be important to know what it would look like? There are those that argue that a federal system, or at least federally mandated minimum standards, is the only solution for the variations that are workers' comp in America. But do you wonder what that federal system would look like? Would it look like what you perceive as the best or the worst of the current state systems (regardless of how you arrive at your personal perspective of what is best or worst)? 

In other words, is it rational to advocate for uniformity before you know whether the result is likely to be uniformly desirable or uniformly undesirable from your particular perspective? Plato purportedly once said "I am trying to think, don't confuse me with facts." And those who advocate change without any expressed perspective, any enunciation of what change means, remind me of that quote. 

Recently, Barry Thompson advocated in his blog that we begin a nationalization process by shifting all medical care provision in work injuries from state workers' compensation to Medicare. A national solution that he contends solves a world of ills associated with delivery of medical care. Certainly a concrete proposal. One advantage he missed is that this would bring the delivery of medical care within the federal whistleblower statute. Under this tool, individuals can pursue fraud lawsuits against doctors, hospitals, chiropractors, etc. Some doctors and other providers have learned difficult lessons from that statute. 

The subject of nationalization is not limited to discussion up here in the United States. It has recently been the subject of some discussion down under in Australia. A recent article in the Sydney Morning Herald, comments on proposed changes to the Australian "national workers' compensation scheme." These changes are attributed to Prime Minister Tony Abbott, and are under consideration in the Australian Senate. 

One side of the Australian debate says that the amendments to the program will "cut unnecessary red tape" in the process. The other side says that the changes are "little more than a favor to big business."  Dr. Joanna Howe, a "law lecturer at the University of Adelaide" says that "this legislation represents the worst type of law-making - ad-hoc, evidentially flawed and kowtowing to a powerful interest group, in this case, big business." She is the author of a report that was published recently by the McKell Institute, a non-profit that studies "critical areas of public policy." 

Dr. Howe contends that the plan to expand the availability of self-insurance to big business could lead to massive abandonment of the Australian states' workers compensation programs. She says that "only multi-state employers can move to the national scheme, reducing the premium pool of the state and territory schemes." She explains that these smaller programs will then only include the smaller employers and that premiums would have to be increased for those entities. Does this sound familiar? There are those who have made similar criticisms to the "opt-out" debate right here in America. 

If a national process or even standards are advocated, would it be important to know the details? Is a volume of study and consideration critical to considering such a change, as is ongoing in Australia, or is everyone willing to concede that nationalization or national standards, regardless of what they may end up being, are a positive outcome in their own right because they would be consistent? Is consistency enough?

Monday, August 10, 2015

What is the Maximum Rate Payable?

Last winter I spoke at a national conference presented by the WCRI. It had a compelling array of speakers, as detailed in a post, WCRI's Annual Workers' Compensation Conference 2015. Following one of the sessions, Peter Rousmanier posed a great question to an expert panel, which had discussed indemnity payments. His question, "why is there a maximum compensation rate?" left the room in silence. 

I highly recommend reading The Secret Life of the Corporate Jester. In the same way that Who Moved My Cheese helps with comprehension of change in our world, the Corporate Jester is a management book that has a message for all employees. It describes the role of the jester as having that "rare ability to illuminate and eliminate blind spots in thinking and action that impact decisions and results." One role of the Corporate Jester is to ask those questions like Mr. Rousmanier did last winter. 

Early in my career I learned that people can be creatures of habit. Asked "why" we do something or why we do it a certain way, the answer is all too often that "that is how we have always done it." It is refreshing to hear people both acknowledge that "answer" and ask the imperative question, "but why?" If more people asked the "but why" question, it is possible our industry, and world, would  be the better for it. 

This does not presuppose that asking that question would lead to change necessarily. It may well be that this question leads to a very fruitful and logical answer that clearly validates whatever element or practice is being questioned. That some particular practice can be validated does not mean we should not ask the question or take the time to validate it. 

The value then is in the explanation. Can we validate practice and process with something more thoughtful than "that is how we have always done it." That, to me, rings like the old parent stand-by "because I said so." If we can be more thoughtful, then the exercise has value in our reassurance that the passage of time has not left us with some antiquated and unnecessary process or practice, some "vestigial tail" of our business. If we cannot come up with a better answer than "because," then it is perhaps worthwhile to delve deeper into how could the goals of the system be better accomplished.

Premiums, the cost of workers' compensation coverage, are based on the risk associated with the work being performed. Some of that risk is measured based upon the occupation in which one is engaged. Certainly, insurance companies charge more to insure higher risk occupations. In Misclassification - What it is I refer to the most dangerous occupations. Being a logger or a roofer is just more risky than being a judge. That makes sense, and it therefore makes sense that an insurance carrier would charge more to insure a logger than a judge. According to OSHAcademy, the various industries are rated and assigned "classification codes" to assist in this process. 

Insurance ratings are also dependent upon payroll. The calculation is expressed as "a dollar figure per $100 of payroll." The OSHAcademy example is "ABC Trucking has a $453,000 payroll and is classified as Code 7229, Trucking-Long Haul. Their manual premium would be $453,000 X 13.71% or $62,106." From this example, we could then question: "if the premium is being charged on the total payroll, why wouldn't the benefits paid be likewise calculated on that full payroll?" 

For 2015, Florida's maximum compensation rate is $842.00. This is the "statewide average weekly wage." It is calculated by Florida fiscal year (July 1 through June 30). So this 2015 maximum rate became effective January 1, 2015, but was calculated using the period July 1, 2013 through June 30, 2014. Then in December 2014 it was published for use in 2015. This is all described in the Division's bulletin each year, last year's is here

The calculation of an injured worker's average weekly wage (AWW) is reasonably simple. It is set forth in Fla. Stat. 440.14. The Florida indemnity provisions are in Fla. Stat. 440.15. These provisions generally provide for payments that are 66 2/3 or 66.67% of the injured worker's AWW (the challenges of mathematics lead to the addition of the alternative 66.67% just a few years ago, an attempt to make calculations less difficult). 

Fla. Stat. 440.12 provides that "if the employee's wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is: (a) equal to 100 percent of the statewide average weekly wage," which is currently $842 in Florida. In What is Comp Worth I provided some examples of where other states have limited benefits using similar processes.

So, if a Florida worker was injured in 2015 while earning $1,000.00 per week, the "compensation rate" would be $666.67 ($1,000 x 2 = $2,000, $2,000/3 = $666.67). That employee would receive benefits of $666.67 per week.

However, if a Florida worker was injured in 2015 while earning $3,000 per week, the "compensation rate" calculation would yield $2,000.00 ($3,000 x 2 = $6,000, $6,000/3 = $2000.00). That employee would not receive benefits of $2,000.00 per week; instead they would be paid $842 per week. That is the current "maximum."

The AWW break-point represented by the $842 compensation rate. would be $1,263.00 ($842 x 3 = $2,536.00,  $2,536.00/2 = $1,263.00). Any Florida worker making more than $1,263 would receive less than 66 2/3 of the AWW following a workers' compensation accident/injury, because of the limit imposed by the maximum compensation rate. 

So, when the premium is calculated, is the insurance company collecting a premium (in the second example) on payroll of $3,000.00 per week (actual, payroll) or $1,263.00 per week (the payroll upon which benefits would be due)? If the premium is calculated on $3,000 and benefits paid at $1,263 is that equitable for everyone? 

Warren Buffet earned $12.7 billion last year, that is about $244,230,769 ($12.7/52) per week. If he were a Florida worker and was injured in 2015, his compensation rate would likewise be $842 per week. No matter how much an injured worker makes, the benefits are nonetheless capped at the statewide AWW. 

Should the insurance company charges a premium based on Mr. Buffet's wages of $244,230,769 per week or on the $1,263? Since the calculation is based on how much the insurance carrier may pay in the event of an accident, it is logical that the premium would be much higher if there were no maximum comp rate. 

To see this more clearly, if you were agreeing to provide auto coverage would you charge the same to insure a ten year old Pontiac G6 and a brand new BMW? If the law capped how much a carrier had to pay for a totalled automobile (at the statewide average auto value), would that provide more certainty in pricing the policy?

The Australian reported recently on Kathy Jackson's workers' compensation claim in Australia. She is pursuing a mental stress claim. Reportedly, she is seeking "80 per cent of her then $287,000.00 salary as the Health Services Union's East branch executive president, capped at the maximum benefit of $110,760 a year."  

So the Australian benefit would seem more generous at 80%. The maximum cap is also notable. That is about $2,130 per week compared to Florida's $842 per week (an annual Florida limit of $43,784 compared to Australia's annual limit of $110,760).  That is a significant difference. Though in either setting, it seems likely that people will have adopted a lifestyle that is consistent with their earnings. If you suddenly found yourself receiving income half of your regular take-home pay, could you pay your mortgage, make car payments, etc.?

Back to Mr. Rousmanier's question, why is there a cap? Is it a conclusion that injured workers do not need what they might have earned before? Is it a method to restrict and restrain premium cost by excluding payroll beyond certain parameters? Is it a convenience that allows carriers to calculate premium with less than perfect information (knowing someone earns more than $1,263 ($65,676 annual) is enough information and there is no need to know exactly how much more)?

His question is a fair one. Why do we have a maximum compensation rate? It deserves more than "that's the way we've always done it." I appreciate Peter asking the question and making me think about it. 

Wednesday, August 5, 2015

Time for that Bake Sale?

In June 2014 I penned The First Social Program Bankruptcy is Upon Us. The math in that analysis interested me. The Social Security Disability program is consuming about $12.4 billion per month, or $150 billion annually. There are 200 million Americans working full time, so each needs to pay about $750.00 annually to support this program. 

Bob Wilson at WorkersCompensation.com suggested at that time that there may be multiple reasons for the growth in the volume of disability recipients in recent years. The total is currently over 11 million Americans receiving these benefits. That is about 5% of the working-age population (200 million) cited in my Bankruptcy article. Mr. Wilson suggested that we hold a bake sale to raise money for the Social Security system. He proposes that we have "5.5 million people, baking, say 6 dozen cookies each, and selling them for $5.00 a dozen to raise about $165 million dollars." He then admits this would fund the Disability program for about 9 hours. 

I do not know how many people read Mr. Wilson's analysis, but my story drew almost 20,000 readers. By far, it was the most read Internet post I have ever written. 

With little fanfare (I noticed this story on only one of the national news sites I frequent), a story came out in early June 2015 titled Social Security Overpaid Nearly Half Receiving Disability Benefits in Past Decade. The story says that over a ten year period, "Social Security overpaid beneficiaries by nearly $17 billion."

According to The Hill, this figure is based upon a random sampling study performed by the inspector general. The audit revealed that "45 percent of the beneficiaries were overpaid at some point during the decade." Payments were made "to people who either were no longer disabled or earned too much money to qualify. Some payments went to people who were in prison or had died." US News says that Social Security has been able to recover about "$8.1 billion, but it often took years to get the money back." 

The Hill notes that the report on overpayment woes comes "just a year before the Social Security Disability Trust Fund is projected to be exhausted" (in 2016). It reports that "lawmakers on Capitol Hill are divided over how to handle the shortfall." The default solution, should Congress fail to take action, appears to be a "nearly 20 percent cut in benefits" for those receiving Social Security Disability. 

Some advocate diverting more funds from Social Security retirement benefit programs to cover the shortfall in the disability program. But, there is an argument that Social Security retirement is likewise going bankrupt, though not as rapidly. A recent article recites that "nearly a quarter of Americans expect to receive no benefits from Social Security. That article says that the retirement "trust fund reserves will run out in 2034." If money were diverted from that program to fund the near-term shortfall in the disability program, it would seem likely that this could hasten the bankruptcy of the retirement program. Some might argue this is a short-term solution to a larger problem. 

Some disagree about Social Security retirement solvency. John T. Harvey in a Forbes article argues that Social Security could never go bankrupt. That is an interesting read. These arguments, for and against the retirement program being used to bail out the disability program, are interesting. The bottom line in both is essentially that more money is required to keep the disability payment levels where they are. Rather than raising (taxes) or finding (divert from other programs like retirement) more money for the disability program, some advocate "integrity initiatives to weed out fraud and abuse to find savings." That is, becoming more efficient with the use of the funds that the disability program already has, and putting more of the existing money to good use. 

According to US News "a spokesperson for the Social Security Administration says the agency has a high accuracy rate for its payments and a comprehensive debt collection program for over payments." But, the Auditor report says that nearly half (45%) of beneficiaries received over payments. Of that total over payment volume of $17 billion, the agency has recovered less than half, about 48%. So the agency makes errors with just less than half of their beneficiaries and recovers almost half of their mistaken payments. Some may question whether half represents "high accuracy" or effectiveness. 

From a mathematical standpoint, that $17 billion in overpayments represents about $85.00 each for the 200,000 million working-age Americans. If that $17 billion were all collected, it would fund almost one and one-half months of the Social Security Disability payments ($12.4 billion paid out monthly). So, $17 billion is a significant amount of money, but eradicating overpayments will not cover the shortfall that looms in 2016. 

The U.S. Department of Labor is interested in the overall subject of disability; it was recently in the news. The DOL is considering national policy issues related to disability. It says that disability is a subject worthy of broader discussion and proposes two questions it finds pertinent: (1) "how can we establish widespread recognition that paid work is a positive life outcome following a health challenge" and "how can we ensure that the parties with the most direct influence become more accountable for delivering positive SAW/RTW (stay at work/return to work) outcomes?"

The suggestion seems to be that involvement of the federal government is the (or "a") solution to the broader disability question. The "stakeholders" are called to action, described as "health care professionals, health insurers, employers, and the workers' compensation and private disability insurance industries" that "operate in a fragmented system that does not encourage coordination or collaboration." The suggestion seems to be that these stakeholders can change disability in America, if there were less fragmentation and more leadership. 

Bob Wilson blogged about the current initiative in The Feds are Looking to Act on Disability and RTW. He notes that one of the policy recommendations is to "designate a responsible federal entity." His remarks on the subject are interesting, and worth time to read. The online dialogue says that this "designation" means to "direct an existing federal entity or establish a new one to be responsible for leading an interagency effort to prevent adverse secondary consequences of health problems and chronic conditions, such as avoidable impairment and disability, job loss, and workforce withdrawal . . .." In other words, the leadership that is needed, according to the DOL, is federal leadership. 

The idea of the federal government involvement, in light of the 50% success of Social Security disability may be curious to some. WorkCompCentral reported on the policy proposals in the online dialogue. It cites statistics from "the Mathmatica Center for Studying Disability Policy" that support some portion, perhaps 13%, of those drawing Social Security Disability "are able to engage in substantial gainful activity but don't."

Does that mean that 13% of the $150 billion spent annually on Social Security Disability could be saved instead? That would mean almost $20 billion annually. If that 13% of recipients were not receiving disability, would the savings be sufficient to keep the current level of benefits for other recipients, without a tax increase, and avoid the "nearly 20 percent cut in benefits" for those receiving Social Security Disability that looms in 2016?

Mark Walls was interviewed for that WorkCompCentral story. He contends that the job done by Social Security in managing disability may not be the best exemplar for others to follow. He says that system is marked by "lax investigations, low standards for eligibility, and . . . little to no effort to assist workers receiving these benefits in seeking employment." he closed with the thought that "getting a federal agency involved is never the right answer."

So a year later, and a year closer to the insolvency of the Disability program, the questions remain. Will America raise taxes to provide the current level of disability payment to the current population of disabled? Will America decrease the benefit level for disability to avoid raising taxes? Will America defer the decision by diverting remaining "reserves" from a retirement program that is already projected to itself be insolvent in 19 years? Will America address the definition of disability and refocus efforts on retaining those individuals in the workforce? Is there some solution other than tax more, spend less per beneficiary, decrease eligibility or borrow?

Will other disability programs like workers' compensation be further regulated or directed by federal policy? Will a new agency be formed, or an existing one be designated to lead a federal charge to address disability, and if so will that be a specific or broadly scoped effort? Will that federal effort be more effective than the Social Security program that allegedly awards disability to a significant volume who are able to engage in "substantial gainful activity but don't." Will that effort produce better performance than the 50% performance of Social Security Disability in making payments?

There will be questions as this discussion moves forward. These are some of them, but I expect there will be others. Can America do a better job dealing with disability in its broadest context? Can Social Security Disability do a better job with making proper payments in a greater volume of cases, and collecting overpayment in a greater percentage than it currently does? It will be an interesting discussion to watch. This is likely to be on the minds of the marketplace as we gather for #WCEC2015 in Orlando this month.


Monday, August 3, 2015

Half the Job is Showing Up

Recently, The Florida Bar News reported on a lawyer that failed to show up at a hearing. It was not a good idea. The Supreme Court suspended the lawyer from practicing law for ten days after that, and administered a public reprimand.

The attorney apparently assumed that filing a motion for continuance meant that the hearing would not proceed. As a young lawyer I once presumed that filing a motion for protective order would keep a deposition from occurring until I could get a hearing. Rapidly, we learn that assumptions and presumptions can be mistaken. I found this article illuminating for a couple of reasons.

First, the paper notes that the the attorney "did not indicate in his motion that the state agreed with his motion." That is probably a bad idea in any context. The Workers' Compensation Rules of Procedure are clear on the "good faith" requirement for motions. See 60Q6.115(2). Recitation of the other side's position on the motion, or of the efforts expended to attempt to learn their position is mandatory in our system and advisable in all systems.

Second, the attorney "failed to set a time to hear his motion." In the workers' compensation practice, you need not worry about setting a hearing in most instances. The judge is going to decide the motion without a hearing most of the time. See 60Q6.115(4). When this becomes a concern though is when the deadline or the event (a hearing) is approaching and there has not been a ruling. 

Whose problem is that? How do you address it? It may seem to be the moving party's problem. but it may be something that could cause  harm to either side. 

Think of the deposition that you cannot attend. You move for a protective order or to quash. Without an order, the other side may proceed with the deposition, trying to protect their record. There is potential for harm to both sides. A deposition you did not attend might later be in evidence, or there might be a continuance and the other side might have the expense of conducting it again. To solve the dispute, how about a joint call to the Judge's staff to remind of the issue and to ask for a hearing?

Third, in this instance, "the judge traveled from another county to preside," as did the state attorney, and "the defendant was transferred from jail to attend." These are inconveniences. And as important in a profession like the law, these are discourtesies. Time is wasted by a judge, opposing counsel, parties, and in many proceedings perhaps witnesses. In today's world of vast communication alternatives like email, cell phones and voice mail, there is just no reason you cannot make an effort to keep people from wasting their time. 

In this context, it is appropriate to remind ourselves that nature can conspire against us all sometimes. I sit this morning and wonder what the effects we will all suffer from this weekend's unusual rainfall in the Tampa area. In Florida, it can be a hurricane sometimes, but weather can work against us even when the storm is not named. It is possible that attorneys went home Friday with every expectation of a hearing this Monday morning. As the weather occurred, how could they assess the possible effects. The OJCC has a published weather closure policy.

How do we prepare for weather emergencies? This is an ideal time of year to focus on that question. We are in the active portion of the Atlantic cyclone season. In May, I compiled some resources in Its that Time of Year Again. It is helpful to review those periodically. Are you as prepared as you can be?

Simply put, you can find out from the news if the OJCC will close an office due to emergency. You can communicate with opposing counsel and witnesses, and clients. Perhaps the communication will be unsuccessful, that you cannot control, but in today's world you can text them, email them, call their cell. There are those among us who are harder to contact, but those people can be instructed in advance to contact us in the event of an urgency.

An intriguing element of the Bar news story was the attorney's argument that discipline was "not justified because the client ultimately suffered no harm." However, the referee and the Court concluded that nevertheless "the attorney showed a lack of diligence in not properly seeking a continuance." In short, discourtesy and failure to communicate is not excusable just because, in the end, there is no harm to your client.  

The Court concluded that the "misconduct was relatively minor," but was "harmful to the administration of justice" and "cannot be tolerated by an officer of the court."

When you have a hearing, show up. If you cannot show up, make arrangements in advance for someone to cover your absence or to appear by telephone or to move the hearing. The same applies equally to mediation, discovery, etc. Will it always work? The short answer is no, we will have miscommunication, missed calls, etc. But we owe it to one another to try to communicate. Something unexpected? Send and email and a text and leave a voice mail. Make the appropriate efforts. 

Need an order? Do more than file. Follow-up, communicate with other counsel in the case. Ask for a hearing when time is short. Keep everyone in the loop. It is about making the effort. Once everyone shows up to a hearing that cannot proceed, it is too late. 

Take from the Court's ruling that the harm to your client is not necessarily the "gold standard" test. The Court here considered whether the failure affected "the administration of justice" and that is a far broader questions. 

It never hurts to say you are sorry. If you make an error, fail to show, forget an appointment, etc., make it a point to graciously, sincerely, and rapidly apologize to all involved. We all make mistakes. Life happens to us all sometimes. Admit it, own it, and apologize for it. It is amazing what a sincere apology can do to smooth over our mistakes and to build professional relationships in which we will be involved over our careers.