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22, 20 II
Bryan Klipfel Director, Workforce Safety & Insurance 1600 E Century Ave Ste I Bismarck NO 58503 Dear Mr. Klipfel: Undoubtedly, you will recall meeting with me on September 2,2011 and October 13,2011 to discuss the issue of my report of suspected wrongdoing through WSI's online fraud reporting system. I was optimistic following these meetings that prompt action would be taken to address the concerns I had presented. While considerable activity has taken place since our discussions, unfortunately the specific cases that prompted me to report these matters have not been addressed meaningfully at all. Except as to cooperating with the presentation of facts of which I am personally aware, J have not wanted to be involved in any investigation. I like my job and do not want to jeopardize my employment in any way by personal involvement in this matter. My lawyer has advised me that I should not have to be involved as it is the responsibility of others to take internal action and if the issue remains unresolved it should be presented to law enforcement officials charged with legal responsibility in such cases.
1 have been made aware the concerns unresolved. I take my responsibilities North Dakota and I cannot and will continue to insist that action be taken happen I will pursue other legal actions
I addressed in my WSI online fraud report remain completely as a WSI employee seriously as well as my duty as a citizen of not let the matter rest in its current status. I fully intend to to address the specific activity I reported and if that does not to see to it that there is a meaningful response.
The report I submitted to WSI's online fraud reporting system detailed two instances I felt mandated a report from me so that I could not be personally implicated in wrongdoing for failure to report, The first incident involved the decision by WSI Claims Director Kim Ehli to delete a notepad entry, authored by a WSI Nurse Case Manager. The second event involved instances in which WSI staff directed WSI Medical Director Luis Vilella MD to alter two of his medical reviews. Prior to submitting my report, I met with WSI Human Resources Director Bob McConnell and WSI Deputy Director Clare Carlson on August 24, 2012 and August 26, 20 II respectively to discuss the situation and inform them of my intentions to report the incidents. Following my meeting with Mr. Carlson, I provided him a copy of the deleted notepad. I explained to both Mr. McConnell and Mr. Carlson I was pursuing the avenue of the fraud hotline because I believe the issues were simi lar violations in that they involved what appeared to be intentional efforts to conceal records involving injured workers. I also expressed to them I was concerned about the potential of each set of incidents not being isolated but part of a "culture" of inappropriate attitude and behavior regarding the adjudication of claims. After I submitted the report, the decision was made to review the matters internally via the WSI Internal Audit department. The "investigative" work by WSI Internal Audit staff began around September 8, 2011. On September 15,2011 and October 13,2011, J met with the Internal Auditors and YOLl respectively, to discuss, among other issues, my specific concern about whether the deleted notepad entry would be restored as I believed it was a "record" that could not simply be deleted under N011h Dakota Century Code (NDCC) 54-46-02(2). I received a response that it all depended upon
what definition is given in the audit for "a record." A final report of the work completed by WSI Internal Audit, titled File Maintenance Review (Review) was issued October 25,2011. (Attached) The Review presents a broad view of policy compliance but it does not address the two instances I described in my initial fraud report. Specifically it does not address the legality of either the action to delete the specific notepad or the pressure exerted on the WSI Medical Director to alter his documentation. Despite the Review not addressing my specific complaints, some of its findings, as well as additional internal correspondence that was distributed after the Review was released, reaffirmed my conviction that violations of state law and WSI internal policy occurred as 1 describe below. • In Section 1: CMS Notepad Entries Deleting Notepads (Page 4), the Review states "Generally. the notepad entries are deleted if: ... The notepad entry contained inappropriate content. personal feelings 01' opinions." Further, in Section 1: CMS Notepad Entries Recommendations (Page 5) it states "If WSI decides to continue deleting inappropriate notepads, the following should be done ... " The criteria provided in the Review as reasons for deletion of notepads, particularly "inappropriate content" seem contrary to the definition of a "record" that is provided by state law. According to NDCC 54-46-02(2) "<Record' means document, book, paper, photograph, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or ill connection with the transaction of official business. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of records as used in this chapter. " There are no criteria noted in this definition regarding in connection with the transaction of official business which would disqualify a material from being a record. Furthermore, NDCC 54-46-07 states "All records made or received by 01' under the authority of or coming info the CliSfOC(JI. control, 01' possession of public officials of this state in the course of their public duties are the property of the state and may not be mutilated, destroyed, transferred, removed, sold, 01' otherwise damaged or disposed of, ill whole or in part, except as provided by law." Therefore, if no criteria are set forth in state law which excludes a material made in connection with the transaction of official business from being a record and all records are to be preserved, the practice of deleting notepads for the reasons cited seemingly contradicts both of these laws. It seems highly unlikely that even under the criteria for deletion set out in the Review any court would ever find that a medical report, or a portion of a medical report, of the agency's Medical Director was subject to deletion and that this would be especially true where the Medical Director's report supports the right of an injured worker to pursue further benefits. Further, the Review notes, "Injured workers' claim files and employers' account files are included within WSl's records retention schedule: #19010/ Injured Worker Claim File Description: This series contains information regarding injured work claims and the action taken. This includes medical and legal documents and any other general correspondence and documentation relating to the claim. Confidential: NDCC 65-05-32 in review of the retention" Although not included in the Review, the official retention schedule of this class of records is "RETENTION: Retain in office permanently," (per the North Dakota Records Management website ht1p:llwww.nd.gov/itdlfiles/retention/485/485-004/485004 descriptions.pdf.) If information in injured workers files is to be retained permanently, to me it seems linlawful to remove information from them.
In addition to what appears to me to be a violation of state laws noted above, I do not believe the action to delete the notepad J noted in my fraud report was in compliance with WSI internal policy. WST Claims Procedure #906 "File Maintenance and Documentation" states "Notes must reflect FACTUAL OCCURENCES versus unsubstantiated opinions." All of the information contained in the notepad that was deleted in this case was factual. Moreover, 011 November 29, 2011, Ms. Ehli sent an internal email message which stated, "Effective immediately, all requests 10 move or delete a notepad entry should be routed to me via email ... Deleting of NPE (Notepad Entry) should be the last resort. They should be moved rather than deleted if at all possible. However, if a deletion is absolutely necessary, please state your reason for the deletion as well ... " Despite the disagreement I have with the view that any notepads should be deleted (other than instances where information has been entered into the wrong claim) it is inconceivable to me how the notepad deletion in this case meets the criteria of "last resort" or was "absolutely necessary." I would argue the contrary is true. I believe the notepad contains substantive information regarding how the claim was adjudicated and is important to both the injured worker and to WSI employees right and ability to track the decision making process. Moreover, On December 12, 2012, WSI Claims Procedure #906 was updated to reflect, among other changes, the following, "Notepad entries can only be deleted with the approval of the claims director after a briefing with the chief of injury services and WSI director. Upon review and approval the claims director will delete the entry. The person requesting the deletions should provide a written basis for the deletion." Remedy: For the reasons stated above, I believe a legal determination needs to be made whether the deleted notepad I reported in my fraud report is actually a "record" that should be restored to the injured worker's file. In addition, if a new policy was set in place (effective December 12, 2012) to review notepads prior to deletion with the accompanying necessary documentation, I believe the same review should be granted retrospectively to the injured worker file in which the notepad was deleted-since the entire contents of the entry still exists. If it is determined the notepad should not have been deleted, it should be restored to the injured worker's file in accordance with NDCC 54-05-07 which states, "Public record, that have been unlawfully removed must be returned to the office of origin or to the state archivist." Given the "technical" impossibility to restore the deleted notepad back to the electronic file according to the date of its origin, a reasonable alternative would be to recreate the notepad with an explanation preceding the contents to explain why is being restored. Also, it is my opinion that Case Management files are considered medical records and consequently may fall under other retention schedules outside of WSL As such, I believe this should be definitively established and noted in policy. Finally if the injured worker has received a copy of his or her file in which the deleted material did not appear the worker should receive a copy of the corrected document once it has been restored.
In Section 1: eMS Notepad Entries Deleting Notepads (Page 4), the Review states " ... the Help Desk received and completed 20 requests for notepad entries to be deleted within the eMS system. Three requests were received from individuals within the Claims Department, in which 2 had approval from the Claims Director; 10 requests were received from an individual within the Legal Department; 3 requests were received from an individual within the Decision Review Office; 3 requests were received from (In individual within the Claims Technician Department; and, 1 request was received from an individual within the Return-to- Work Department." WST Claims Procedure #906 "File Maintenance and Documentation" states "Notepad entries can only be
deleted with the approval of the claims director. Upon review and approval the claims director will delete the entry." The finding from the Review indicates that apparently only 2 of the 20 requests to the Help Desk contained the proper authorization from the WSI Claims Director. The need for approval from the WSI Claims Director was further substantiated by the agency-wide email issued November 29, 2011 referenced above. Remedy: Because the great majority of the deleted notepad entries presumably did not receive the appropriate approval, I believe further investigation and subsequent findings should be conducted to provide an official accounting of the notepads that were deleted. • In Section 1: CMS Notepad Entries Deleting Notepads (Page 4-5) the Review states" Thirteen of these 20 requests indicated the deletion was due to being entered all the wrong claim; I was due to confidentiality reasons; and, 6 had no documented reason for the deletion within the request." There are apparently at least five records, other than the one of which I was made aware, that were deleted from the files of injured workers without accompanying documentation to explain the reasons for deletion. Remedy: In light of the information presented above regarding the definition and retention of record from the perspective of state law, I believe this finding warrants further investigation to discover the reasons for the deletion of the six records with no documentation and subsequent official documentation of the findings. (Disturbingly, despite the Internal Auditors possession of a copy of the notepad entry that was deleted, the Review did not validate the reason(s) for its deletion.) • In Section 2: WSI Medical Directors' Medical Reviews (Page 6), the Review states "WSJ's 'Medica/ Director indicated during the beginning of calendar year 2010 (February 5, 2010 through April 9, 2(10). there lvere discussions held with Management on including/not including counterargutnents within the conclusion section of his reviews. WSJ Management wanted this section to be excluded." This implies that only "discussions" occurred between the WSI Medical Director and Management, when in reality, specific instances occurred in which the Medical Director was pressured to alter his documentation. It is my understanding the Medical Director refused the directives and the medical documentation in these claim files remained unaltered. However, if the Medical Director would have conceded to the directives given to him, I believe his actions would have been in violation of NDCC 12.1-11-05 which states, "1. A person is guilty of an offense if he: a. Knowingly makes CI false entry in or false alteration of a government record." Similar to the Internal Auditors knowledge of a specific notepad being deleted, they were also aware of the specific events involving the Medical Director via my fraud report. Remedy: In this situation, I believe there should be an investigation to determine whether WSI staff acted illegally in their attempts to pressure the Medical Director to alter his documentation, potentially causing him to commit a felony. Also, I believe a determination should be made to establish whether medical documentations composed by the WSI Medical Director are considered medical records. This should also be addressed in policy, similar to the documentation involving Case Management stated above. In addition to the violations described above, in both of the suspected fraud incidents I reported believe the actions that have taken place were in violation of the fundamental ethical beliefs outlined in internal policy. According to WSJ Policy 1.6 Code of Business Conduct, no employee is exempt from the following:
TYe must ensure that all WSJ records, reports, vouchers, electronic or paper, are reliable, accurate, and complete.
bills, or timesheets,
We must never lie or make misleading oral or written statements, or attempt other employee to provide false or misleading statements or information.
Policy 1.6 also states, "All employees have the responsibility for 1101 only engaging in appropriate business conduct, but also for reporting any activity which, in good faith, is believed to be a violation of laws, regulations, or policies." As stated above, as a result of the findings of the Review, it is my understanding that a few policy changes regarding notepads have been developed. However, no action appears to have taken place to directly address the specific instances of concern outlined in my initial report. On the contrary, I believe WSI will not be addressing these specific issues as indicated by the following events. October 28, 2011 WSI Human Resource Manager Bob McConnell sought me out to have a meeting with him. During this meeting, I was essentially told the Review is complete, that I needed to accept the outcome and "move on" and if I continued to ask questions and "visit here and there," it will "get me in trouble." Furthermore, on November 29,2011, I was made definitively aware ofWSJ's intention not to restore the deleted notepad, per a telephone conversation with WSI Internal Audit Director Micole Kvas. She stated the reason for this was that all of the information in the deleted notepad is covered "factually" in other notepads, as identified in a separate "special report", not part of the Review. I met with her and WSJ Internal Auditor Krisi Kunz to review this report. At this time I expressed 1 adamantly disagreed with the assertion that all the information in the deleted notepad exists in other places in the file, and that regardless of this, I still held the notepad that was deleted was actually a record. I asked them the question, if the deleted notepad is not a record, what is it, to which the response I received was everything a public employee writes can be construed as a record. It was also stated by the Internal Auditors that WSI has the authority to determine what information ultimately becomes part of a record. To say the least, this whole ordeal has been very emotionally disturbing to me and I have found it difficult to witness how this situation has been handled. This is especially true in view of WSl's stated values of Respect, Empowerment, integrity, Trust, Dedication, Compassion, and Selfless Service by which you ask us to carry out our duties. It also flies in the face of the Servant Leadership concept you personally have asked us to embrace as employees. Initially, J was very encouraged that you decided to adopt this particular model of leadership. However, it seems hypocritical to me to say WSI stands for Patience, Kindness, Humility, Respectfulness, Selflessness, Forgiveness, Honesty and Commitment when it has demonstrated here that it is willing to act as it has toward injured workers and its own employees. In submitting the fraud report, it was my hope that WSI would take appropriate action. This has not happened and 1am not willing to let the matter rest. The specific instances that have affected both the injured worker and WSI employees that I reported must be addressed or I will pursue remedies outside of WSI internal procedures.
Putting Safety to l'Vork
1600 East Century Avenue. SuHe '1 PO Box 5585 Bismarck NO 58506-5585
January 25, 2012
Ms. Barbara Frohlich Provider Relations Specialist Workforce Safety & Insurance 1600 East Century Avenue Bismarck, ND 58503 Dear Ms. Frohlich: I am responding to your December Workforce Safety & Insurance. 22, 2011 letter and urn addressing this response to you as an employee of
The specific incidents for which you raised concerns through have been thoroughly reviewed. It has been determined unlawful nor a violation of internal agency policy. Further, placed on the medical director to change his reports. information from a report generated on behalf of WSI is not
a report through the WSI online fraud reporting system that the "deletion" of the notepad entry was neither the investigation revealed that no undue pressure was The legal recommendation to el lrninate unnecessary unlawful or contrary to WSI policy.
A lthough your characterizations have not been validated, the investigation presented an opportunity for the organization to address the broader issue of managing the in formational content of records in this electronic age. I believe the changes thut have been implemented are positive ones thut will help alleviate the misunderstandings that have resulted. All employees of this organization are encouraged to mise issues or concerns they have relative to existing policies and procedures. Positive changes and better ways of approaching the work that we perform often can result. Your suggestion that you do not want to jeopardize your employment is unfounded. 1 will not tolerate an overt or implicit retaliation towards any employee for having raised a concern such as you did through the online fraud reporting system, You are likewise free to present your concerns to others as you suggest in your letter should you continue to disagree with the legal determination that has been made and you face no repercussions for doing so. I take my responsibilities us Director or WSI seriously and at all times strive 10 make correct decisions with input and advice Irom those with knowledge and expertise on the matter at hand. J have done so in addressing the concerns you raised in your report and I do not feel it is necessary or approprlate to debate over the correctness of these decisions. Apart from the specific concerns you raised, I W[1S disappointed to read the attacks you level against your fellow employees at WSI. The unfounded accusations of lnappropriate unltude and behavior regarding the adjudication of claims by claims personnel is unsettling. You are, of course, free to believe whatever you wish and express those beliefs to whomever you want, but you will be expected to refrain from creating conflict and dissension while performing your job, 1 urn confident Sincerely, we have appropriately investigated and addressed your concerns.
Bismarck: 701-328-3800 • 1-800-777-5033 • Fax: 701-328-3620 • Hearing Impaired: 1-800-366-6888 • Fraud & Safety
February 27, 2012 Good morning, Yesterday's Fargo Forum contained two stories concerning our agency. http://www.inforum.com!event!article!id!352186! http://www.inforum.com/event! a rticle/id/352187
I and otherWSI employees participated
We were aware of these stories would be forthcoming. in interviews with reporter Patrick Springer last week. In my view, this is not a "news story". workers and employers.
Last fall the WSf Internal Audit department
conducted a that,
review on the adequacy of internal controls and procedures in maintaining files for injured Among other recommendations, Internal Audit recommended
"For consistency, WSI develop a standard policy/procedure on completing medical reviews, which should be followed by all physicians. This policy should contain a standard format for what should be included/not included within a medical review and where medical reviews should be documented once completed. While developing this policy/procedure it may be helpful to gain input from the physicians and/or the North Dakota Medical Association. (Memo, October 25, 2011, page 6)
Development of this policy is nearing its completion. We have a draft policy which is being reviewed by interested parties at WSI and elsewhere. It is hoped that we can develop a standard policy that benefits internal users who ultimately serve our injured worker clients. We will continue to handle this matter in a professional manner. New developments or progress will be communicated to everyone as quickly as possible. Again, it was not our intention forthis to be a "news story". If you have any specific questions please ask me.
Bryan Klipfel Director
VVorkforce Safe~ & Insurance
Putting Safety to Work
1600 East Century Avenue, Suite 1 PO Box 5585 Bismarck ND 58506-5585
To: From: Date: Subject:
Bryan Klipfel 2/29/2012
On 2/28/2012 YOLl reported an incident to the agency regarding inappropriate verbal communication which you felt was related to the complaint that you had previously made regarding one of the agency's processes and practice. Workforce Safety & Insurance does not condone nor will the agency tolerate acts such as you described occurring on 2/2812012. A formal written warning was given to Mr. Solberg and placed in his personnel record on 2/29/2012 Should you encounter any further incidents of this nature please report them to the Human Resource Director or myself immediately.
• Fax: 701-326-3820
• Hearing Impaired: 1-BOO·366-6888
• Fraud & Safely HolLine: 1-800-243-333"
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