Las Vegas, NV (WorkersCompensation.com) – Marijuana, air ambulance fees, and limitations on direction of care are among the “issues to watch” for the coming year. Several workers’ compensation industry government relations pros summed up what likely lies ahead in Congress and state legislatures.
While it’s up in the air how lawmakers may decide to go on any particular issue, stakeholders can have an impact.
“One trend I’d love to see – politicians, they really need to hear form us. They don’t understand workers’ compensation unless they’ve been in it,” said Brian Allen, VP of Government Affairs for Mitchell. “If you have an opportunity to talk to a state legislator or Congress person, share your thoughts. Become a resource for them.”
Allen was among the speakers highlighting likely upcoming legislation and regulations, during a session at the National Comp conference.
“One of the things we’re starting to see a lot of noise on is marijuana,” Allen said. “States struggled with their budgets during COVID; marijuana sales hit record highs in both years of the pandemic and generated lots of revenue. Governors are pushing the idea of passing laws. The federal government is never one to turn off the idea of raising taxes.”
A couple of proposals in Congress could gain traction in the coming year. The Cannabis Administration and Opportunity Act introduced in July would legalize marijuana on the federal level, thereby removing the conflict between the federal and many state laws.
The Safe Banking Act would allow financial institutions to process marijuana transactions. Assigned to a Senate committee on April 20, the proposal has been idle in that chamber ever since. But its passage could change how the workers’ compensation system views the drug.
“Most court decisions denying [marijuana] in workers’ compensation have relied on the Federal [laws], so those rules would go out the window,” Allen said. “Medical necessity, efficacy – those would be the issues.”
Additional Federal Action
The potential federalization of the workers’ compensation system will likely be brought up again. While there was discussion in 2016, the issue died down during the Trump Administration.
“But now it’s back,” said Lisa Anne Bickford, director, Government Relations for Coventry. A congressional committee in September voted to finance a look at the possibility.
“The challenge we have is there are a lot of differences in how states are doing things, and the Federal government doesn’t like differences,” Allen said. “For national players in the workers’ compensation system it might make it somewhat easier, but the reality of it is I don’t see it happening.”
Healthcare transparency in terms of drug pricing is another issue facing lawmakers. Prices have eclipsed traditional inflation, leading to questions about where in the supply chain costs are added to drugs. Insulin, for example, costs 1,000 times more than it did years ago, Allen said.
Air Ambulance Rates
The Federal Airline Deregulation Act effectively preempted states’ rights to regulate air ambulance prices. The result has been exorbitant fees in some areas. Texas has taken an unusual approach to the issue.
“It’s the only state where they have 2,500 disputes and they are letting them sit there, waiting for guidance from the federal Level,” Bickford said. “In Texas we have a 5th Circuit Decision from last month that said ‘no, the Federal Airline Deregulation Act does apply and the state is preempted from regulating [those fees].’ The Texas Supreme Court said ‘absolutely the Texas Division of Workers’ Compensation has the right to regulate fees.’ They are two completely conflicting decisions.”
Bickford said she asked a state attorney what the plan is, with millions of dollars in dispute at stake. “I asked, ‘what are you going to do now?’ They said, ‘nothing. We are going to wait.’”
Some states are taking a new look at who has control over an injured worker’s medical care and when. A couple of proposals in California that did not pass are not necessarily gone. AB 1465, for example, would have allowed for creation of a state-run medical provider network.
“There was a lot of opposition to the idea, however the idea has not gone away,” Bickford said. “It’s a two-year bill and will be discussed again. This is something we’ve never seen proposed before.”
Proposed regulations in Tennessee would expand requirements around peer-to-peer outreach between the provider and reviewing physician, with the goal to improve the quality of utilization review. It would also expand the audit powers and sanction and penalty powers of the director.
Kentucky is looking at a regulatory change to expand its UR to have a state-level appeals process. “It’s well intentioned but challenging to implement from a volume perspective,” said Ben Roberts, VP of UR for Genex Services. “There’s opportunity for significant cost from a state-compliance perspective.”
Among the major changes during the pandemic was the proliferation of presumption laws. A number of states passed, or at least considered proposals that presumed certain workers with COVID-19 had contracted the virus at work, easing their path to obtain workers’ compensation benefits.
“COVID created an awareness of presumption laws,” Robert said. “COVID opened up this window for presumptions.”
Before the pandemic, presumptions that did exist in the workers’ compensation system were narrowly written, and applied to only a small percentage of workers. An example is West Virginia Coal miners who contracted Black Lung Disease.
We will likely see more presumption proposals soon; even ones that have failed. A proposal in California would have expanded the categories of workers eligible for COVID-19 presumptions, such as municipal workers. “It would have [opened it] to people who have public safety-ish jobs,” Bickford said. “It [would put] a lot of risk on the payer side.”
Another proposal that failed but may be resurrected would have added the types of diseases that would create presumptions for lifeguards. “Things like TB, bloodborne pathogens would be presumed for lifeguards,” Bickford said. “So where are presumptions headed? Not sure; more people added or more stuff added. So watch what happens in California.”
Proposals that may be forthcoming could allow some COBID-related presumptions to be retroactive; something the speakers say would not be good news for the industry.
“You can’t go back far, you start messing with reserves, with premiums,” Allen said. “If you add claims not accounted for it creates a real financial mess in the insurance market.”
While it might seem like a sympathetic thing to do “the ramifications would outweigh any sympathetic benefits,” Allen said.