THE TRANSFERABLE SKILLS ANALYSIS SCAM

Certified Rehabilitation Counselors (CRC) - The Insurance Industry's "Hired Gun" performing transferable skills analysis in disability claims?  Has the CRCC let the Insurance Industry have their claim denial cover?

Transferable Skills Analysis (TSA)- The Insurance Industry's "weapon" in disability claims?  Are there any studies supporting the effectiveness of TSA's with input solely from an Insurance Company? No.  In fact a transferable skills analysis prepared with biased input is a crooked and unethical enterprise:

The methodologies for performing TSA's have not been independently tested and TSA's are not considered scientifically reliable.  Transferable Skills Analysis is a useless tool if it is not accompanied by ethical standards for input and a labor market survey.  The fact that Insurance Companies and Certified Rehabilitation Counselors use these scientifically unreliable TSA's to render claims decisions is risky, unethical and borders on being dangerous.

There are numerous methodologies used to perform a TSA however none of them can correct for poor data collection, poor data input, unethical behavior, financial incentives to produce a result for the insurer, selective review and bias.  There isn't a single academic in the rehabilitation counseling field that would make the claim that a transferable skills analysis, with input solely from an insurance company, is an empirically supported "reliable" methodology.  Certified Rehabilitation Counselors that engage in and endorse this type of scientific bias act in contravention of their ethical charge to the disabled person (client).

If a Certified Rehabilitation Counselor is asked to review a disability case for an Insurance Company the claimant should be very worried.  The Insurance Industry goes where they think they will get the result they desire.  That usually leads the Insurance Industry to the CRC's inclined to stretch the boundaries of their competence and the limits of their ethical obligations.  The Insurance Industry knows that they only need a small number of ethically challenged Certified Rehabilitation Counselors to do their dirty work.  One hundred ethically challenged CRC's out of some 16,000 can save the Insurance Industry 100's of millions of dollars in claims. 

The Insurance Industry is fully aware of the fact that different results can be achieved with selective input.  The problem is the  body charged with overseeing and certifying certified rehabilitation counselors has done little to institute or adopt TSA standards and stop this ethical rot amongst their certificants.  That leads one to believe the unholy alliance between the Insurance Industry and CRC's comes with a wink and nod.  The words "skills" and "analysis" have nothing to do with the goals of a "Transferable skills analysis".  It's all about money and denying claims.

The Insurance Industry knows their reputation rates the equivalent of a used car salesman on the trustworthy meter.  By partnering with CRC's they can cover themselves with the CRCC Code of Ethics when they deny folks their benefits.  Unfortunately, what usually happens is the Insurance Industry, driven by its greed, demands more and more ethical concessions from CRC's to justify additional referrals.  A cycle of dishonesty is born, the CRCC Code of Ethics is rendered a sham and the person with disabilities ends up in the cross-hairs. 

The CRCC Code of Ethics must be tightened.  All CRC's should be on equal footing.  Right now the Code of Ethics contains far too much gray area that allows ethically challenged CRC's to game it for their own financial gain at the expense of ethical CRC's who genuinely care about folks with disabilities (Clients).  The rehabilitation counseling profession has a real  problem and it needs to be addressed.

THE REHABILITATION COUNSELOR ETHICAL DILEMMA

Certified Rehabilitation Counselor's (CRC's) must decide whether their Code of Ethics has meaning or if they have let the Insurance Industry render the  CRC designation a sham.  This website is dedicated to exposing how one of the Insurance Industry's favorite tools, the transferable skills analysis (TSA), is  unscientifically used to deny disabled individuals their hard-earned earned ERISA benefits.     The first case study is located under the tab "case studies" and it should raise some questions.

Certified Rehabilitation Counselors (CRC) play a very important role in our society however a number have potentially besmirched  the profession by selling their professional designation to the Insurance Industry despite being ethically charged with objectively evaluating their client, defined as the disabled person.  This web site will endeavor to illustrate how some rehabilitation counselors may be letting themselves become pawns of the Insurance Industry.  Far too many ERISA disability cases are unnecessarily being forced into the courtroom due to the unethical preparation of a transferable skills analysis.  Worse yet, the weakest disabled individuals with too little resources to even reach a courtroom, are being worn down in a rigged and sick game of dishonesty by an Insurance Industry flowing with legal resources, shielded by a maze of ERISA regulations and armed with their most lethal weapon ---unscientific TSA's prepared under the guise of "objectivity" and "expert opinion".

This site is hoping that current or former ethical rehabilitation counselors step forward to challenge and educate their colleagues.  The web site should serve an additional resource to the rapidly diminishing ranks of attorneys who are  currently fighting the Insurance Industry's ERISA claim denial machine.  The time has come to awaken State Regulators and Attorneys to the deceitful claim processes utilizing unethical transferable skills analysis reports.

Background Items Of Interest:

Rehabilitation counselors are ethically charged in their Code of Ethics with objectively evaluating their client (the disabled person), even in forensic settings.  The Insurance Industry is not the client and never has been. Rehabilitation counselors should not allow themselves to be coached, prodded, directed or influenced by the Insurance Industry when preparing a transferable skills analysis in an ERISA setting.  When rehabilitation counselors lose sight of their CLIENT they become pawns in a systemically rigged review that is unquestionably biased toward the Insurance Industry.  CRC's should know that  Congress did not promulgate the ERISA administrative process to be adversarial.  Consistent with the CRC Code of Ethics the ERISA review is supposed to be "full", "fair" and "objective".

• Many times the Insurance Industry will instruct a rehabilitation counselor "this" or "that" is not part of the disability contract, "do not evaluate it."   Rehabilitation counselors are not lawyers charged with deciding what is or is not in the contract and they should not permit this unethical influence to occur.  Unfortunately, many transferable skills analysis performed at the behest of the Insurance Industry are showing signs that this type of undisclosed influence has become commonplace.  The certifying agencies and professional organizations must help their certificants in this regard and add clarity to the Code of Ethics.  The Codes of Ethics must reinforce the requirement that any contractual coaching, guidance along with when it occurred and by whom must be  clearly disclosed in the transferable skills analysis document.   There have been many cases where contracts, definitions and Summary Plan Description's differ in language.  The Insurance Industry's interpretation is not always correct.  It is not the role of the rehabilitation counselor to decide the legality of contractual issues.   Moreover, it is also not in the client's best interest for rehabilitation counselors to assume that the Insurance Company will produce all relevant documents. Disclosure within the TSA report is both ethical and extremely important.

• Rehabilitation counselors are not permitted to choose sides between treating physicians and IME physicians.  In November of 2006 the Commission on Rehabilitation Counselor Certification issued an ethical advisory 10/06 (2) that strictly prohibits the practice:

The Committee considered a request for an advisory opinion with regard to two dilemmas with the first pertaining to the appropriate course of action to take when there are conflicting opinions about a client’s ability to return to work, as determined by a treating physician and a physician conducting an IME.  The Committee responded that it would be outside of the scope of practice of a CRC to determine which set of restrictions or recommendations apply.  Further, a CRC would need to limit or discontinue services until the conflict is resolved so as to be able to recommend and conduct appropriate job placement activities that are not harmful to the client.  Should such a situation arise, the CRC would need to inform the client of the conflict and disclose to the client the need to alert the referral source so that the conflict may be resolved.  The client should also be advised of any limitations, delays or discontinuation of services. (A.1.c., A.3.a., D.1.a.)

• Rehabilitation counselors are not qualified to make "return to work" decisions in the absence of a clear determination that the CLIENT's (disabled person's) evaluating medical providers have done so.  Many rehabilitation counselor's are taking liberty with their boundary of competence to appease the Insurance Industry.  Rehabilitation counselors  are not permitted to cherry-pick or selectively review medical reports  in order to render "return to work" decisions that they are not qualified to make:

The CRC code of ethics states - Rehabilitation counselors will practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. Rehabilitation counselors will demonstrate a commitment to gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population. Rehabilitation counselors will not misrepresent their role or competence to clients.

CRC Ethical Advisory 06/02 (4) states - The Committee considered a request for an advisory opinion as to whether it is appropriate that certificants do not request information from medical service providers when developing a vocational plan.  The Committee responded that a CRC who lacked current medical information would be unable to develop a vocational report because they are unqualified to render an opinion about an individual’s ability to return-to-work or about their functional capacities absent such documentation from qualified service providers.  Furthermore, requiring that individuals prepare vocational reports without the use of information from medical service providers appears to be inconsistent with Federal and state guidelines.  (A.1.c, D.2.a)

• The Rehabilitation Counselor is obligated to request ALL medical information pertaining to a client.  If rehabilitation counselors do not then they are not living up to their Ethical obligations to their client. The Insurance Industry recognizes the lack of ethics in the the rehabilitation counselor profession and has been exploiting it with a great deal of success.  A selective set of documents can produce one evaluation while a full set of documents can produce another. Rehabilitation counselors must take a stand against the Insurance Industry's exploitation of their profession in ERISA cases.  The Code of Ethics  must be modified to help the rehabilitation counselors.  Any Transferable Skills Analysis that is performed for the Insurance Industry (or the Legal  Industry for that matter) in an ERISA case should be accompanied with a provision that states "in the event information is brought to the attention of the rehabilitation counselor that material documents (containing conflicting information as defined in CRC Ethical Advisory 10/06 (2)) were withheld by the referring party this transferable skills analysis shall be void."

• Many Rehabilitation Counselors are lazily resorting to the use of software programs to perform transferable skills analysis reports without performing a labor market survey.  An interesting article was written entitled Use of transferable skills analysis software in forensic vocational rehabilitation:  Does this common technique withstand a challenge under Daubert? (Journal of Vocational Rehabilitation, 2002) by Stephanie Sleister.

The majority of research conducted on TSA software has focused on ease of use and whether these programs accurately assess transferable skills and earning capacities.  To date, no research has examined whether these programs identify occupations that actually exist in the labor market.

Despite the widespread use of these programs by vocational specialists and the reliance insurance carriers place on information generated by these programs to award or deny disability, it does not appear that use of these programs alone will withstand a Daubert challenge.  A traditional labor Market Survey of employers should be conducted to determine whether occupations identified by the software actually exist within a certain labor market.

• While many physical restrictions/limitations are easy to assess the Rehabilitation counselor is obligated to perform a transferable skills analysis taking into account the "Mental and Behavioral Capacities Needed to Perform Work"  outlined in the American Medical Association endorsed manual entitled Disability Evaluation - Second Edition (Demeter & Andersson) Chapter 45 The Role of the Vocational Rehabilitationist.  (This is important for many cases involving pain management and narcotic medications):

1. Ability to remember locations and work procedures

2. Ability to understand and remember very short and simple instructions as well as detailed instructions

3. Ability to carry out simple and detailed instructions

4. Ability to maintain attention and concentration over extended periods

5. Ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary work tolerances

6. Ability to sustain an ordinary routine without special supervision

7. Ability to work in coordination with and proximity to others

8. Ability to make simple or complex work decisions

9. Ability to complete a normal work day or week without interruption from psychologically based symptoms and to perform in a consistent pace without unreasonable rest periods

10. Ability to interact appropriately with peers and supervisors, including accepting criticism about work performance

11. Ability to respond appropriately to changes in the work setting, including potentially hazardous conditions

12 Ability to travel to and from the workplace or to alternative work settings with private or public transportation

• In Commission on Rehabilitation Counselor Certification (Ed.)by L. Gordon MS, CRC is instructive to those  CRC's who presently deviate from the Code of Ethics:

For example, a recurring problem in private practice is the fact that it is often the insurance carrier or self-insured employer who hires a rehabilitation counselor to provide services to an individual who suffered a loss. This approach may lead to situations where the financial concerns of the “customer” are in direct conflict with the best interest of the “client.” According to the Code, the client’s interest must come first, even at the expense of the customer. Doesn’t sound very good for business, does it?

Nevertheless, if we examine a sampling of the Standards of Ethical Practice from a business perspective, I think you will see that diligent conformance to the Code’s mandates would always be good for business.

Adhering to the Code can have an immediate financial impact on your business. Demonstrating that you adhere to a consistent code of professional ethics can result in a reduction in your liability insurance premiums. Carriers who know practitioners are subject to oversight and peer review of their professional conduct by an objective organization, such as the Commission on Rehabilitation Counselor Certification (CRCC), can offer those individuals a lower premium because claims experience show the insurer’s liability exposure will be reduced.

Another advantage is what I call the “level playing field.” In other words, practitioners who follow the same code of professional ethics are required to operate their business according to the same high standards of conduct. (No bushwhacking allowed.)

The Code requires that the counselor’s primary obligation be to the client. The referral source must be informed of this, which allows the counselor to avoid possible conflicts with a payer by indicating upfront that the client’s interest must come first. From a business standpoint, it’s always best to avoid potential misunderstandings instead of trying to clear them up after the fact.

• The Third Circuit has described the goals of a Transferable Skills Analysis as follows while tossing out the unscientific work product of a rehabilitation counselor.  This is one of many cases that should have motivated the CRCC to adopt standards however they have sat on their hands to keep the referral money flowing:

The irreducible logical core of finding that a claimant is capable of performing alternative occupations is a finding that claimant has a residual functional capacity that equals or exceeds the functional requirements of a feasible alternative occupation.  These two determinations – the claimant’s capacity and the occupations requirements – must together be detailed enough to make rational comparison possible.  Otherwise, the finding that the claimant can perform alternate occupations is nothing but a bald assertion.......