Our highly credentialed vocational rehabilitation and life care plan experts write about topics that are important and relevant to our areas of practice. If you have a vocational or life care planning topic you would like to learn more about, please contact us to request a blog post on that topic.
Future Cost Considerations for Organ Transplants
Forecasting the complicated medical needs of individuals leading up to and following organ transplants requires careful attention to detail. Organ transplant candidates are often some of the most acutely ill evaluees life care planners encounter. These patients require vigilant medical surveillance prior to transplant, must endure the stress and fear of being taken off the waiting list, and must be close enough to a transplant center to respond to available transplant organs at a moment’s notice. Given the complexity of the transplant surgery itself, the iatrogenic effects of lifetime immunosuppressant medications, and the multitude of potential complications, collecting reliable cost estimates for transplants can be challenging.
The United Network for Organ Sharing (UNOS) is a private, non-profit organization that manages the national organ transplant system. UNOS through its Organ Procurement and Transplantation Network (OPTN), matches donors to recipients, manages the waiting lists, develops policies, evaluates procedures, and most importantly, maintains a database on every transplant performed in the United States. This comprehensive database allows for detailed research regarding the typical costs for single-organ, double-organ, or tissue transplants.
Milliman is an independent risk management, benefits, and technology firm that publishes the most comprehensive analysis of transplant costs in the United States. The firm issues an updated study every three years, with the most recent being published in January of 2020. The Milliman report includes transplant costs that cover the 30-day period prior to the transplant, the cost for organ procurement, the cost of the actual transplant (includes medical and hospital fees), and the costs associated with the first 180 days following the transplant. The report presents costs in several ways including the PMPM (per member per month) and the “billed” charge. It is the billed charge that is appropriate for use according to generally accepted standards of practice for life care planning.
As costs are limited to specific pre- and post-transplant time frames, it is important to collaborate with the treating or consulting specialist to address likely costs that extend beyond the 180 days after transplant. As mentioned in a previous post, issues such as organ rejection, infectious diseases, and side effects of immunosuppressant medications, can put organ recipients in the position of “trading one disease for another.” Additionally, the issue of mortality rates and life expectancy following transplants requires strong medical foundation and consultation.
Life care planning for transplant cases can be complicated. Future care involves multiple bodily systems, frequent medical complications, and varied side effects from the lifelong medications required to avoid organ rejection. It takes an experienced team to accurately plan for and reliably research the cost of future care.
Amendments to Federal Rule of Evidence 702- Expert Witness Testimony
Life Care Plan Expert testifying expert rule 702
Effective December 1, 2023, Federal Rule of Evidence 702 underwent amendments aimed at clarifying how trial judges determine the admissibility of expert testimony. The Advisory Committee on Evidence Rules identified issues related to interpreting and applying Rule 702 language, prompting these changes. The amendments aim to assist in qualifying and admitting expert witnesses.
Key Points:
Purpose of Amendments: The amendments address the reliability of expert testimony. Previously, judges allowed juries to assess information’s reliability. Under the Daubert standard, an expert was qualified if they followed a method and applied it to the facts.
Main Clarification: Qualified experts may testify if the proponent demonstrates to the court that:
It is “more likely than not” that the expert’s specialized knowledge, data, and analysis will help the trier(s) of fact understand the issue.
The opinion is based on sufficient facts or data.
The principles and methods used are reliable.
The expert’s opinion reflects a reliable application of principles to the case’s facts.
Judicial Role: Judges will now decide more frequently, often through Motions in Limine and hearings, whether expert testimony is admissible. The burden lies with the proponent to establish the reliability of information, methods, and opinions presented to the jury. Judges will assess whether the expert applied analytical methods reliably.
Recommendations:
Early Engagement: Engage an experienced and qualified expert early in the process.
Specialization: Choose an expert with specialization relevant to the case.
Citation of Relevant Standards: Ensure that expert reports explicitly cite professional standards and guidelines that drive methodology and final opinions.
By the Numbers: Using Statistical Data in Vocational Rehabilitation
A strong vocational analysis of potential lost earnings requires reliable and trustworthy data to compare the pre-injury to the post-injury earning capacity. The gold standard for assessing earnings is “triangulation.” Triangulation is a statistical assessment that facilitates the validation of data through cross verification from more than two sources. Tax information, pay stubs, and the claimant’s report of earnings (if a child, the parent’s report of earnings) help triangulate likely pre-injury. In order to increase reliability and validity of assessment of earnings, government statistical wages offer information regarding earnings over a wider sample size. The Bureau of Labor Statistics, the U.S. Department of Labor, and the United States Census Bureau continuously collect information regarding specific occupations and educational attainment with the associated wages.
One of the most useful datasets is the Occupational Employment and Wage Statistics (OEWS) survey. The OEWS includes roughly 830 occupations and wage estimates for those occupations. The OEWS estimates are constructed from a sample of about 1.2 million employers. The earnings are reported by Metropolitan Statistical Areas, by state, or at the national level at the 10th, 25th, 50th, 75th, and 90th percentiles. These levels are helpful in determining wages as a function of experience and time.
Another useful dataset is the Population Survey Tables for Personal Incomes (PINC). The PINC data is a collective effort of both the Bureau of Labor Statistics and the Census Bureau. The data is organized by educational attainment, gender, race, ethnicity, and amount of time one has worked. The vocational counselor can use this information to assess typical wages for varying educational attainment levels. PINC data is particularly useful in estimating wages for injured minors or others who have not yet established a clear work or earnings history.
By using a broad data set, a claimant’s actual, reported, or anticipated earnings can be compared with the earnings relative to the occupation, geographical area, and educational attainment, or anticipated educational attainment if not for injury. These data sets allow the vocational counselor to assess how the claimant’s wages align with industry standards. By analyzing multiple wage sources, the vocational counselor is able to base their opinions on substantiated data which validates those opinions.
Considering FCEs in Vocational Assessments
A Functional Capacity Evaluation, often called an FCE, is a series of tests to identify an individual's physical abilities, residual functional capabilities, and work tolerances. It is usually conducted over one to two days by trained physical therapists or occupational therapists, and an FCE report is generated with the evaluation's findings.
FCEs help determine whether an individual can return to work in the occupation they held at the time of their injury or if they will need to seek employment in an alternate occupation due to physical limitations. The FCE tests the individual's residual physical strength demand level according to the Dictionary of Occupational Titles (i.e., sedentary, light, medium, heavy, or heavy duty). The evaluator assesses the claimant's current residual abilities and whether they match the physical demands of their job or occupation at the time of injury. Should the residual abilities not align with the past job or occupation at the time of injury, the FCE is also helpful in guiding labor market survey research to identify appropriate jobs congruent with the individual's physical restrictions and limitations.
The physical strength demand level should not be the only factor determining an individual's residual employability. The FCE often outlines specific postural demands, environmental conditions, and the individual's ability to work full-time or part-time hours. While the evaluee may be able to perform a particular job or occupation based on the physical strength demand level alone, their postural capabilities, work hours, and/or environmental restrictions may preclude them from working in a particular job or occupation. Environmental restrictions include working from unprotected heights, operating moving machinery, and exposure to vibrations, outdoor conditions, dust, fumes, and gases.
For example, a welder has experienced a work-related burn injury. He tests at a physical strength demand level of medium, which aligns with the required physical demands for this occupation; however, he can only tolerate limited exposure to heat. The occupation of a welder requires frequent exposure to extreme heat. Based on this environmental restriction, welding is no longer a viable occupational option for this individual.
An FCE is useful in determining an individual's physical abilities and work tolerances. All factors in the evaluation should be considered to determine an individual's residual employability, including the physical strength demand level, postural restrictions, environmental restrictions/limitations, and work hour tolerance.
Vocational Assessments and Wage Loss Analyses for Undocumented Workers
As vocational rehabilitation counselors, we are routinely asked to assess the pre- and post-injury earning capacity of individuals who are not legal U.S. citizens. Addressing earning capacity for this population raises issues including whether the individual has a work visa, the impact of immigration status on employment opportunities, as well as educational background and language proficiency. For example, an individual may have worked in the construction industry where English proficiency is less important. A good work ethic, hands-on skills, and the ability to perform in a detailed, accurate manner can make for a valuable employee who can earn desirable wages. If the worker earned substantial wages pre-injury as a construction worker and lost their earning power due to their injuries, it is ultimately the trier (s) of fact to determine appropriate compensation. However, as vocational counselors, we can assist the jury in making that determination.
Documentation of wages earned, such as check stubs or tax returns help corroborate pre-injury capacity. Statistical wages based on generally accepted government data may also add to the pre-injury earnings profile. If physical limitations are outlined by a physician, we can assess their ability to perform past or alternate work and estimate appropriate wages for those occupations. Considering the entire vocational profile including the person’s age, education, work history, transferable skills, language, and citizenship status is crucial when considering alternate work, as the comprehensive profile can heavily impact the worker’s ability to obtain, maintain, and sustain employment.
Barriers to Active Medical Treatment in Life Care Planning
Life care planning involves evaluating a person's future medical needs on a more probable than not basis and developing a plan to meet those needs. The plan may include various services, such as medical care, surgery, rehabilitation, medications, long-term care, adaptive equipment, supplies, and home care. Active treatment can be beneficial in obtaining recommendations for future services; however, common barriers can prevent a patient from actively treating their condition(s).
One common barrier to care is the cost of medical services. Individuals who lack insurance or adequate finances may be unable to afford the out-of-pocket expenses for medical treatments, modalities, and procedures. Due to high costs, patients who lack proper funds to receive ongoing treatment are impacted.
The lack of paid time off or paid leave can complicate care. Treatment for chronic conditions can include frequent office visits, physical therapy visits multiple times weekly, and downtime following pain interventions or surgeries. An individual may not have enough paid leave or time off from work to seek appropriate medical treatment for their condition(s). If the injured party is undergoing treatment and lacks paid time off, they may be forced to choose work and maintain a steady income versus pursuing active treatment.
Another issue may be treatment hesitancy or a fear of future surgical intervention. Treating and consulting providers often recommend surgical intervention for individuals with orthopedic injuries. Even though a patient has been declared a candidate for a surgical procedure and will likely require surgery within their lifetime, they may be hesitant to undergo the treatment. Appropriate patient education of the individual's condition and the risks and benefits of procedures can provide the patient with informed information and assist in future medical treatment and decision making.
Active medical treatment can be an important factor in the development of a life care plan. Consistent follow up assists treating physicians in their medical decision making regarding likely future care. Common barriers can prevent injured patients from pursuing ongoing treatment. A life care plan can provide information for future probable treatment as recommended by either treating or consulting providers even if certain barriers prevent an individual from actively treating their condition(s).
The Standards of Practice and Performance for Life Care Planners
As life care planning continues to evolve, standards of practice and performance continue to be evaluated and revised. The Standards of Practice and Performance for Life Care Planners were updated in September of 2022. The most recent published standards of practice and performance intend to follow an objective, thorough process that is inclusive of as many practitioners of life care planning as feasible (Journal of Life Care Planning, Volume 20, No 3). The standards reflect the growing diversity of professional backgrounds and expertise within the life care planning community. The standards guide the diverse professionals engaged in life care planning with concise, streamlined methodology. The standards include both Standards of Performance and Standards of Practice.
The Standards of Performance are intended to outline competency levels, skills, and behaviors that are expected of a life care planner. They include:
The life care planner has an educational background and professional preparation suitable for life are planning.
The life care planner practices within their professional scope of practice.
The life care planner must have skill and knowledge to understand the health care needs addressed in a life care plan.
The life care planner shall practice in an ethical manner and follow the Code of Ethics of their respective professions, rules, certifications, and credentials.
The life care planner uses the scientific principles of medicine, rehabilitation, and health care as a basis for life care planning.
The life care planner considers cultural and linguistic factors that may influence the assessment, development, and implementation of the plan.
The above Standards of Performance provide ways that the life care planner demonstrates compliance with the below Standards of Practice.
The life care planner facilitates understanding of the life care planning process.
The life care planner establishes working expectations with the referring party.
The life care planner performs a comprehensive assessment through the process of data collection involving multiple elements and sources.
The life care plan analyzes data using a consistent, valid, and reliable process.
The life care planner uses a consistent, valid, and reliable approach to determining the evaluee’s needs.
The life care planner seeks collaboration.
The life care planner uses a consistent, valid, and reliable approach to costs.
The life care planner communicates their opinions.
The life care planner ensures that opinions and work product are congruent, consistent, and follow accepted methodological practices.
The life care planner, as an educator, facilitates understanding of the life care planning process, the life care plan, and work product.
The life care planner may engage in forensic applications.
Following the Standards of Practice and Performance eliminates the potential for adverse outcomes, including the inadmissibility of the life care plan. By following the standards, all life care planners, regardless of professional training or background, have a solid foundation to ensure their work products are credible, usable, valid, and reliable.
Assessing Vocational Capacity of Plaintiffs Receiving Social Security Disability Benefits
When conducting vocational evaluations in personal injury claims, there are instances where the plaintiff is receiving Social Security Disability Income (SSDI) benefits. If the plaintiff has been deemed “disabled” by the Social Security Administration (SSA), the question is whether the individual is permanently disabled from all employment. It is vital to make this assessment in personal injury cases with claims for lost wages or loss of wage-earning capacity.
The Social Security Administration defines disability as “the inability to engage in substantial gainful activity (SGA) due to any medically determinable physical or mental impairment resulting in death or lasting for no less than 12 months.” SGA amounts are usually adjusted annually, with the 2023 amounts for non-blind individuals set at $1,470.00 monthly. Those awarded SSDI benefits can still attempt to work and continue to receive benefits if their earnings do not exceed the SGA amount.
It is necessary to understand the medical basis of SSA’s determination of disability. For many plaintiffs, the award of disability may be based on a combination of impairments that rendered them disabled and not a specific injury or incident, which vocational experts must consider in personal injury claims. For example, a motor vehicle collision resulting in neck or back injuries may limit an individual to sedentary or light-level work. There may also be pre-existing conditions such as diabetes, heart problems, and depression (exacerbated after the MVC), which SSA will consider in evaluating the person’s overall claim for disability. Disability status may be based on multiple impairments and not solely on the injuries to the neck and back.
Another factor is that a plaintiff receiving Social Security benefits may be rendered disabled for a closed period. For example, medical evidence documents that spine surgery was recently performed, and a recovery period of 12-24 months is medically necessary per the records of the treating or consultative physician. Benefits may be awarded for a specified time (closed period). SSA will re-evaluate the claim to determine if significant medical improvement will allow them to perform some substantial gainful activity. In this instance, the disability status is considered temporary.
The SSA’s determination of the claimant’s ability to work is equally important. In addition to any specific restrictions or limitations that may be assigned, transferable skills become a significant factor after the age of fifty. For example, claimants limited to sedentary-level work who do not possess transferable skills for sedentary employment in the regional or national economy may be awarded benefits even though they may be capable of working in unskilled, sedentary occupations.
When evaluating a personal injury case for potential lost wages/loss of wage-earning capacity where the plaintiff receives SSDI benefits, we do not assume the plaintiff is totally disabled from all work. A thorough evaluation by a vocational expert can benefit by offering opinions concerning the vocational outlook, employability, and earning capacity of the plaintiff.
What Is A Life Care Plan? Breaking Down The Definition, Part 2:
To recap Part 1, the definition of a life care plan is “a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.” The term dynamic was discussed. The second part of the definition states that a life care plan is “based upon published standards of practice, comprehensive assessment, data analysis, and research which provides an organized, concise plan for current and future needs with associated costs.” So, what exactly does this mean?
Certified life care planners abide by published standards of practice, with the most recent standards being the 4th Edition, published on November 3, 2022, in the Journal of Life Care Planning. These standards guide the work of life care planners from various disciplines, whether providing life care planning services locally, regionally, nationally, or internationally. The published standards outline expectations of those practicing life care planning and provide a means for evaluating the quality of work practices and work product.
According to the Standards, life care planners should conduct a comprehensive assessment of the evaluee and note if an interview did not occur. Life care planners collect data regarding health/medical, biopsychosocial, financial, educational, and vocational history and current treatment needs. Life Care Planners also gather information from relevant treating and consulting allied health professionals. The assessment can help the life care planner determine the need for additional evaluations and expert opinions. Life Care Planners analyze all relevant data using a consistent method to assess the evaluee’s needs and to identify current functioning, disability, and health, supporting future medical care recommendations. Age, geographical location, and gender are other factors that should be considered when formulating a life care plan.
Life care planners conduct research to determine appropriate costs for recommended items and services. When performing research in developing a life care plan, the life care planner must use a consistent method to determine costs for various categories of available/needed services. The costs should be geographically relevant and identified from reliable sources. The life care planner should use a consistent method for organizing and interpreting data for projecting costs, and the cost research should be presented clearly.
Standards of practice help to guide life care planners, the assessment and analysis provide determining factors, and the cost research for current and future care needs define what life care planners need to produce an accurate and reliable product.
Vocational Rehabilitation Considerations in Burn Cases
Many factors influence the vocational prognosis of individuals who have experienced burn injuries, including residual functional limitations, the environment of the job(s), the need for ongoing scar revision and treatment/therapies, and unique clothing needs/requirements. These should all be considered when determining an individual’s ability to return to work.
The first step in vocational planning is to assess the level and nature of residual impairments. For example, many individuals with burn injuries experience scarring and contractures, which can impact their range of motion, especially in the joints. If burns are to the upper extremities, grasping, handling, and reaching issues can further affect the likelihood of returning to work. Facial burns can also be a deterrent when working in customer-facing roles or in an interview setting with potential employers. Treatment typically involves various types of therapies, which could also affect their ability to maintain employment due to frequently missing work because of appointments.
The physical environment where the individual was working pre-injury should also be considered when determining if a position fits within post-injury limitations. People with burn injuries usually cannot return to work in environments that require outdoor work, exposure to high temperatures, open flames, and chemicals. These restrictions typically rule out many welding jobs, construction jobs, or other occupations requiring outdoor work.
Unique clothing is often needed to protect an individual’s skin following a burn injury. This clothing may or may not be compatible with other clothing requirements outlined by an employer. The vocational counselor can be integral in determining if any accommodations need to be made in the workplace to allow for the clothing necessary to return to work.
A vocational rehabilitation counselor should know the factors that must be addressed when working with individuals who have experienced burn injuries. The counselor should consider the impairment and any restrictions of the individual, the need for ongoing treatment and therapy, environmental aspects of the job, and special clothing requirements needed when determining an individual’s ability to return to work.
The Importance of Updated Records for a Life Care Planner and Vocational Expert
Typically, the first step after being engaged as life care planning or vocational experts is to review the available records. Medical records guide the direction of the life care plan and frame potential restrictions that influence vocational assessment. Step two in the process is the evaluation with the plaintiff to determine which treating or consulting providers with whom to confer. Occasionally, evaluees have difficulty recalling important treatment history, and documentary evidence becomes even more essential.
Occasionally, the medical documentation will contain information about pre-existing treatment, which assists the expert in determining if a recommendation is appropriate for a life care plan or if future treatment needs would be related in whole or part to a pre-existing condition.
Having the most recent medical reports before a physician conference is essential to understand the recommendations better and know if the physician and life care plan expert should discuss specific topics.
It is also helpful to have updated medical documentation and treatment records even after a consultation has taken place. The physician may alter their treatment plan during treatment, which could affect the life care plan recommendations. Therefore, receiving updated medical documentation and treatment records before court appearances or depositions is essential, as the physician’s new medical opinions may justify an updated assessment and report. Providing updated records promptly should ensure the life care planner has time to review the updated information and possibly re-consult with the physician, if necessary. Updated medical documentation is also essential when the life care planner and vocational expert are not permitted or able to evaluate the plaintiff.
Equally crucial to medical documentation are deposition transcripts of treating and consulting physicians. These depositions can contain many treatment recommendations or opinions that confirm or deny information required to complete a life care plan or aid in writing vocational opinions.
In conclusion, referral sources can assist the life care planner and vocational expert by ensuring they receive updated medical documentation, reports, and deposition transcripts of physicians as soon as possible to supply the most accurate, up-to-date information.
Costing Techniques Lessons from the Life Care Planning Summit
The International Association of Life Care Planners (IALCP) is the Life Care Planning section of the International Association of Rehabilitation Professionals and arguably one of the most active life care planning professional organizations. For 22 years, the IALCP has facilitated Life Care Planning Summits to foster collaboration and consensus on standards of practice in the field. For example, in May of 2022, seven representatives of Stokes & Associates participated in the most recent Summit, which intended to develop a position statement regarding the presentation of charges or costs in a life care plan. Over time, similar Summits have resulted in the seminal resources we rely on as life care planners, including the Consensus and Majority Statements.
In preparation for the Summit, Dr. Jamie Pomeranz and Dr. Nami Yu collected survey data from active life care planning professionals regarding typical costing strategies for generating life care plans. Data was collected via Survey Monkey, and 264 life care planners completed the survey (80% response rate). Results of the survey were presented at the 2022 Summit and recently published in the Journal of Life Care Planning (Johnson, C.B., Pomeranz, J.L., Yu, N.S., Robert, E., Davis, E., Woodard, L. & Penilton, D. 2022 Life care planning summit: Costing techniques, survey results and development of a costing framework in support of the life care planning specialty. Journal of Life Care Planning, 21(1), 31-68).
Below are some significant findings:
Overall, respondents were quite experienced, with 64% writing life care plans for ten or more years and 39% for over 20 years.
64% of the sample reported a Certified Life Care Planner (CLCP) as the primary certification related to life care planning; Certified Nurse Life Care Planner (CNLCP) 22%; Certified Rehabilitation Counselor (CRC) 21%, and Certified Case Manager (CCM) 18%.
42% of life care planners obtain fees and prices by telephone 81% to 100% of the time.
62% of life care planners use a database to determine costs 81% to 100% of the time.
Most life care planners (81%) use a combination of sources to determine costs 81% to 100% of the time.
93% of life care planners identify the sources of the costs in their plans 80% to 100% of the time.
43% of life care planners who use databases for costs report the 75th percentile; 22% report the 80th percentile.
64% of plans do not rely on Medicare fee schedules to determine costs.
51% of life care planners consider prices less than 12 months old valid.
As life care planners, learning that we generally agree with our colleagues regarding actual best practices was encouraging and validating. The most current edition of the Standards of Practice for Life Care Planners (2022, Journal of Life Care Planning, 20(3), 5-24) provides strong guidance regarding general principles and minimum standards for clinical practice. However, as evident from the survey results, there is much room for interpretation of the guidelines. Stokes & Associates strives to employ peer-reviewed and generally accepted methods in the field. The published results from this most recent survey strongly support our company-wide methodology for generating life care plans.
Back to our Roots
When composing our monthly newsletter, we attempt to educate readers on the practice of Vocational Rehabilitation and Life Care Planning. This month, however, we would like to elicit your input. In response to last month's email newsletter, we were contacted by readers who gave us feedback about how our services impact decisions and outcomes in the litigation process. This sharing of information is essential. Therefore, to keep an open dialogue, we offer information from the Tenets of Life Care Planning and ask if you have a comment or question, don't hesitate to contact us. We welcome the exchange.
Tenet - "All plan recommendations should relate to patient-specific evaluation data. Each recommendation must be carefully tied to the data collected in the clinical interview, the history taken with the patient and family, and the review of all medical/health-related professional records. The basis for each item citation should be clear to others who review the life care plan. No one should be left to wonder why specific recommendations were made."
Discussion - Breaking this down means that all life care plan recommendations must also be related to the specific indexed incident or event that causes the need for the recommendations. The word "all" is emphasized because of its high importance. This tenet insists that no opinion or recommendation can be omitted if it can be tied back to the case, regardless of who generated it, unless it is outside the scope of practice. This tenet compels the consideration of recommendations, whether from treating or consulting physicians, plaintiff, or defense. Life care planners are not in a position to challenge a recommendation's validity on that basis.
The life care planner should also consider general medical conditions that require treatment but are not included in the plan if unrelated to the event. Physicians struggle with differentiating included items as they are generally in the practice of treating the patient as a whole. We consistently inform treating and consulting physicians or allied health professionals that we include treatment recommendations only if they are causally related to the indexed event. This tenet requires the basis for inclusion to be reported in the plan, which we accomplish by attributing recommendations to the professional who made them in the comment section of the life care plan.
Attendant Care in Life Care Planning
When developing a life care plan for catastrophic injuries, attendant care may be warranted and recommended by a treatment provider to bridge the gap of functionality caused by the indexed incident. There are tiers of attendant care depending on the patient's level of need, and it is helpful to understand the services each provider can appropriately provide. Each level of care will have a different impact on the overall lifetime cost in a life care plan. See below from least to most involvement:
Personal Care Aide (PCA)/Caregiver:
Educational requirements: none
Training requirements: varies by state (some states have no requirements)
Work setting: typically, within the homes of individuals
Duties: assistance with activities of daily living (ADLs), light household chores including meal preparation, accompaniment to doctors' appointments
Home Health Aide (HHA):
Educational requirements: none
Training requirements: minimum of 75 hours depending on the state plus certification exam
Work setting: typically, within the homes of individuals
Duties: ADL assistance, measures and charts vital signs, administers medications, wound care, etc.
Certified Nursing Assistant (CNA):
Educational requirements: high school diploma/GED
Training requirements: minimum of 75 hours depending on the state plus the passing of certification exam
Work setting: typically within nursing/residential care facilities and medical facilities
Duties: ADL assistance, communicates/alerts emergencies to nurses, measures and charts vital signs, tends to equipment such as pumps, dressings and catheters, etc., works under the supervision of a registered nurse (RN) or nurse practitioner (NP).
Licensed Practical Nurse (LPN):
Educational/training requirements: high school diploma/GED plus graduation from an accredited LPN program and passing of NCLEX-PN exam
Work setting: typically within residential care facilities and medical facilities, and in-home health
Duties: measures and charts vital signs, wound care, administers medications/injections/immunizations, tube feedings, etc., and works under the supervision of RNs, NPs, physicians, or other superior figures depending on state requirements.
Registered Nurse (RN):
Educational/training requirements: at least an associate degree plus the passing of NCLEX-RN
Work setting: typically, nursing care and medical facilities
Duties: administers medications and treatments, creates and maintains medical records, and oversees and collaborates with other treatment professionals when/as applicable.
As educational, training, credentialing, and task requirements increase, so do the costs of services. According to the U.S. Bureau of Labor Statistics 2021, national hourly rates for PCAs and HHAs range from $10.72 to $17.79 per hour. For CNAs, hourly rates range from $11.48 to $21.27 per hour. For LPNs, hourly rates range from $17.86 to $30.67 per hour. For RNs, hourly rates range from $28.58 to $58.71 per hour.
When a treating physician recommends attendant care, the life care planner will confirm the level of care needed, the required hours per day of assistance, and if the number of hours per day would increase with age/time. In addition to the life care planner consulting with the treating physician concerning attendant care, a clinical evaluation with the evaluee (or another individual who can speak on their behalf) is essential to understand their limitations and subsequent needs to determine the level of care that is appropriate.
Loss of Earning Capacity Versus Economic Loss
Typically, vocational rehabilitation counselors are engaged to assess loss of earning capacity following an injury. However, in some cases, earning capacity may not be the best measure of damages when assessing work and the ability to earn. For example, vocational rehabilitation counselors may have to take a different approach when assessing economic damages for business owners. John Doe owns his own scrap metal business. Before his injury, he could perform all of his business's essential job duties, including managerial responsibilities and heavy manual labor (processing metal machine parts). Following a motor vehicle collision, John was restricted to a light physical demand level and subsequently hired a laborer to perform the heavier aspects of the business. He has continued to run the company, and his 1040-Schedule Cs show that his business profits remain unchanged. The vocational rehabilitation counselor must now consider the additional cost of labor versus the profitability of John's business (i.e., earning capacity). While John's company is not losing profitability due to his injuries, he is incurring a higher cost to own and operate his business and maintain profits. If John is the company's sole owner, this extra expense directly impacts his income. Similarly, if additional equipment or supplies are needed to keep the company's profitability related to the indexed injuries, these items would also be considered compensable damages.
Vocational rehabilitation counselors need to approach each claimant's vocational situation individually, and work to determine the appropriate metrics to measure economic losses.
Neuropsychological Evaluations in Life Care Planning
Life Care Planning for individuals with a suspected brain injury requires specific information about residual functioning, cognitive deficits, and expected course of rehabilitation to help determine future medical, cognitive, emotional, and supportive care. Physicians commonly request neuropsychological evaluations for diagnostic and treatment planning purposes, which can be crucial in preparing a Life Care Plan.
Neuropsychological evaluations are typically performed by board-certified neuropsychologists and can take many forms. It is common to see brief neurocognitive screenings done earlier in a patient's recovery to set a baseline while the individual may still be healing from neuro-insult. These quickly administered screening tools include the Mini-Mental State Exam, the Cognistat family of tests, or the Montreal Cognitive Assessment (MoCA). Allied health professionals can administer them. Due to their brief nature, it is customary to readminister these measures to chart improvement with active care.
Once an individual with a brain injury has stabilized medically, it is common to see comprehensive test batteries administered by a board-certified neuropsychologist. The typical exams include reviewing available medical records, clinical interviews with patients and family members, and psychometric tests. For example, test batteries may consist of personality measures, intelligence testing, memory testing, tests of attention and concentration, manual dexterity tests, and others. This comprehensive assessment aims to confirm organic injury's presence (or absence) and identify emotional and psycho-behavioral issues affecting functioning. Results of the neuropsychological evaluation allow the ordering physician or the neuropsychologist to recommend cognitive rehabilitation/therapy, inpatient/outpatient neurorehabilitation treatment, financial management services, case management services, household assistance, attendant care, and/or additional neuropsychological evaluation/testing.
Neuropsychological evaluations can benefit vocational rehabilitation counselors when considering whether an individual can return to work in the occupation they held at the time of their injury, work in alternate occupations, or work with or without accommodations. The information reported in a neuropsychological evaluation addresses issues related to the mental capacity to perform work-related tasks, including interacting appropriately with the public, meeting deadlines and completing assignments, maintaining attention and concentration for extended periods, and responding appropriately to changes in the work setting.
Overall, neuropsychological evaluations can provide a rich data set for diagnosing neurocognitive functioning, tracking improvement with recommended treatments, and forecasting likely future medical and vocational needs.
CRPS and Life Care Planning
A life care plan (LCP) is a dynamic document based on published standards of practice, assessment, and research that outlines future needs and costs for individuals with catastrophic injuries or chronic health needs. Developing a plan for individuals diagnosed with Complex Regional Pain Syndrome (CRPS) can be challenging, as physicians’ opinions on the most effective treatment plans for CRPS can vary greatly.
CRPS is a form of chronic pain that typically involves the arms and legs and develops following an injury. The pain is generally out of proportion to the severity of the initial injury and may spread from its source to other parts of the body. Many people with CRPS describe burning and throbbing pain, sensitivity to touch, swelling, changes in skin temperature, color and texture, joint stiffness, and atrophy.
Before developing a life care plan, life care planners should carefully review all available medical records, paying particular attention to recommendations offered by treating physicians and consulting medical examiners. When consulting with physician(s) to obtain their opinions on future care needs, the life care planner should be aware of different treatment options that should be discussed during consultation.
Treatment options currently being recommended for CRPS are typically multi-faceted. They may include medication, physical therapy, nerve blocks, epidural steroid injections, platelet-rich plasma injections, stem cell injections, radiofrequency ablation of the painful sensory nerves, neurostimulation, and infusion therapies. It is also important to consider psychological factors often experienced by people with CRPS, as psychotherapy or psychiatric treatment may be warranted. Anxiety and depression are often common psychological/psychiatric diagnoses associated with CRPS.
Life Care Planners can also look at the literature to understand the typical treatment needs of those with CRPS. When using published research, it is vital to ensure that the studies or publications involve a sufficient sample size of study participants who closely resemble the demographic qualities of the subject with CRPS, and information regarding frequency, duration, and probability of occurrence would be beneficial.
Probable vs. Possible Costs in Life Care Planning
Life Care Plans are designed to present information regarding anticipated medical expenses throughout one’s life expectancy. These costs are calculated and based on “today’s dollars.” They have not been adjusted to include factors such as inflation or discounted value, usually the purview of a forensic economist or CPA.
Generally, a probable vs. possible level of medical certainty must be met for an item/recommendation to be included in a life care plan. Probable recommendations are determined to have a greater than 50% chance of being medically needed and thus likely to be incurred within an individual’s lifetime. Possible recommendations cannot be determined on a more probable than not basis. These items are usually stated as “may, possibly, or if” statements by the treating or consulting health care providers. Once recommendations have met the inclusion criteria, cost research can be conducted to reflect usual and customary charges for the identified care. If the treatment or service does not meet the criteria for inclusion, they are not included in the life care plan.
Although possible recommendations and costs should not be included within a life care plan, it is often helpful to acknowledge these treatment possibilities in some instances. For example, suppose the final course of care has not yet been determined at the time of trial or deposition. In that case, it may be helpful for the trier(s) of fact to have information regarding future costs associated with each treatment option being considered. Although the costs for possible treatment and services are not included in a life care plan, these costs are typically researched for “informational purposes only.” The life care planner can present the information to assist the court if treating or consulting physicians change their opinions between their deposition and trial testimony. It is incumbent on the testifying life care planner to reiterate that the informational costs are not included in the life care plan summary totals but are presented for the above contingencies.
Determining Work-Life Expectancy: A Case Study
Vocational rehabilitation counselors are often engaged to assist attorneys in determining pre-injury and post-injury earning capacity. Work-life expectancy is central to determining earning capacity, or the average number of years an individual participates in the labor force. Work-life expectancy estimates can help calculate final numbers for litigation or settlement purposes; however, the available research regarding work-life expectancy is outdated. The United States Department of Labor/Bureau of Labor Statistics uses research from 1986, and the Markov Model of Labor Force Activity utilizes research from 1997 to 2004. The vocational rehabilitation counselor must determine if the available resources are valid and reliable in today's job climate, where many individuals choose to work longer than retirement age.
For example, work-life expectancy was the issue in Barto v. Shore Construction (2015). The plaintiff reported that he had planned on retiring at age 67; however, the defense argued that this was greater than the average work-life expectancy for a seaman, and there was no indication that he could have worked until that age. The defendant contended that an individual's work-life expectancy cannot be based solely on their report and that other factors must be considered. The defendant further argued that an individual's work-life expectancy should be based on the average number of years an individual both works and lives and should consider elements such as an individual's health and occupation. An appellate court determined that the trial court used an above-average work-life expectancy. Therefore, the plaintiff's award was reduced from $300,000.00 to $209,533.00 based on his ability to work as a security guard until the noted age of retirement (58.2 years of age), beginning at age 55.8. The plaintiff did not note how they arrived at the range for work-life expectancy but that the age of 55.8 was based on a table of statistical work-life expectancies prepared by other economists.
As vocational rehabilitation counselors, it is important to gather as much information relevant to work-life and be aware of the statistical data, even if outdated. The vocational expert alone may not be able to determine such information, and collaboration with an economist can be beneficial.
What Is A Life Care Plan? Breaking Down The Definition, Part 1
In testimony, life care planners are often asked, “what is a life care plan?” According to the International Academy of Life Care Planners, a life care plan is “a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.” Questions often arise regarding the different components of this definition. Life care planners are often asked, “what do you mean by dynamic?”
Dynamic refers to “continuously changing or developing.” Life care plans are considered dynamic or “needs-based,” and individuals’ needs are subject to change. Various circumstances may result in a modification to a life care plan, such as potential complications, new technology, a shift in medication regimen, or the continued need or removal of an item or service. What was once future medical treatment needs becomes past medical treatment when the patient has undergone or received some of the services previously outlined.
A life care planner should consider the risk for potential complications; however, specific complications the individual may experience may not be known on a more probable than not basis. Should an individual experience a complication directly resulting from the injuries identified in the life care plan, the life care plan would need to be amended to include the treatment related to those complications.
Technology is constantly evolving, and more efficient treatment options may become available in the future; however, it is challenging to determine or account for the future advancement of technology. This may necessitate a change in a life care plan over time.
Treatment options, in general, may change for the individual based on their needs at any given time. For example, the treating physician may recommend spinal injections for a certain number of years; however, the physician may determine that additional injections, procedures, or surgery may be needed at the end of that duration. A common change in future treatment involves the individual’s medication regimen. The types of medication may change as well as the dosage and frequencies as time progresses or as new medicines become available.
Respecting that the life care plan is a dynamic document, life care planners routinely reserve the right to amend plans based on updated information from physicians and the individual’s changing needs.