<strong><u>NEW PROCEDURE FOR RECOUPING OVERPAYMENTS AND EDI</u></strong>
On 6/10/20, the board published proposed changes to 12 NYCRR 300.22 and 300.23, “to reflect updates to the eClaims process that incorporate EDI version 3.1.”

The proposed changes address the procedure following a disability event when compensation controverted and when no controversy (12 NYCRR 300.22) and the Requirements relative to suspension or reduction of compensation benefits (12 NYCRR 300.23).

The change to the language in 12 NYCRR 300.22(f) is a change to the Second Reports of Injury that carriers, TPAs and employers file and specific to a situation where there is a resumption of benefits.

In 12 NYCRR 300.22(f)(2), the significant change is that if a payor is not making payments in a situation where payments would otherwise be due but for a credit or an overpayment on the file, the payor must indicate on the SROI, “the amount of such total amount claimed and the amount credited by the carrier, special fund or third-party administrator from the payment due.” Hence, where an employer or carrier takes the position that it has an overpayment on the file the SROI which relieves it of an otherwise ongoing obligation to make payments, the SROI must now indicate the amount of the overpayment and how much is being credited against the payment that is otherwise due.

The second substantial change to §300.22 addresses summary reports of payments. As was the case before the changes, the reports must include compensation payments, payments for medical care and wages pain instead of compensation where the claim is not disputed.

The new language of 12 NYCRR 300.22(f)(3)(i) requires a payor to file an Initial Summary Report:
<ul>
 	<li>Within 180 days of the date of the disability event or, if there is no known date of disability event, the date of the initial first report of injury; or,</li>
 	<li>If the board directed continuing payments prior to 180 days of (A) herein, then within 180 days of such award. If the case is closed with no continuing payments, a summary is due within 180 days of closure. The initial summary shall be due within 180 days of the initial direction to continue payments or the initial closure.</li>
</ul>
Hence, the Initial Summary Report must be filed within 6 months of the “disability event” or FROI, or within 6 months of a CCP if the award is before expiration of 6 months after the disability event or FROI, or within 6 months of the closure.

Subsequent Summary Reports, of 12 NYCRR 300.22(f)(3)(ii), must be electronically filed:
<ul>
 	<li>Every 180 days from the initial award directing payment while such benefits continue.</li>
 	<li>Additionally, following a reopening of the case in accordance with section 300.14 of this Part when payment(s) have been directed pursuant to such reopening, a summary report shall be due within 180 days of the subsequent closing of the case following direction of the Board; or if awards are continuing, every 180 days from the initial award directing payment while such benefits continue.</li>
</ul>
Subsequent Summary Reports must be filed within 6 months of an initial payment and every 6 months thereafter, or within 6 months of the closing of a case that is reopened pursuant to §300.14, or within 6 months of an award after a reopening under §300.14.

The proposed change to the requirements relative to suspension or reduction of compensation benefits, (12 NYCRR 300.23), is the addition of a new subsection which creates a regulatory framework for recouping an overpayment.

The new 12 NYCRR 300.23(g) provides:

In the event that the carrier, self-insured employer or third-party-administrator seeks to recover for an alleged overpayment of benefits to the claimant, such carrier, self-insured employer or third-party administrator must file notice to the Board in the format prescribed by the Chair that identifies the amount of such overpayment. Such prescribed notice shall be due as follows:
<ul>
 	<li>When a request for further action is submitted to the Board by the carrier, self-insured employer or third-party administrator, such prescribed notice requesting recovery of an overpayment shall be submitted on the same day as the request for further action.</li>
 	<li>When a hearing is scheduled and the carrier, self- insured employer or third-party administrator will request recovery of an overpayment at the scheduled hearing, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment no less than ten days before the date of the hearing. The Workers’ Compensation Law Judge will not consider any requests to direct recovery of an overpayment that are not timely made.</li>
 	<li>When the Board directs recovery of an overpayment, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment within ten days of such decision.</li>
</ul>
Hence, in a situation where there is an overpayment, a Board promulgated form will have to be filed.

If the payor is requesting a hearing on the overpayment by filing a Request for Further Action, RFA-2, the overpayment notice must be submitted on the same day as the RFA.

If a payor is going to be requesting a recovery at a hearing, the notice identifying the amount of the overpayment must be filed at least 10 days prior to the hearing. Judges are directed not to address overpayments if the requisite notice is not filed at least 10 days prior to the hearing.

Lastly, if the Board directs recovery of an overpayment, the payor must file the notice identifying the amount of the overpayment within 10 days of the decision establishing the overpayment.

The proposed changes to the regulations are subject to a public comment period for 60 days after publication.  To submit comments email <a href="mailto:regulations@wcb.ny.gov" target="_blank" rel="noopener">regulations@wcb.ny.gov</a>. The 60 day comment period will end on August 7, 2020.