Key takeaways from the WCI virtual conference

The Workers’ Compensation Institute (WCI) is a nonprofit educational organization and its annual conference is considered one of the largest comp education events in the country. Although it was postponed this year, they offered a virtual mini-educational forum. Here are some of the key takeaways:

  • Claims processing. Changes in the industry in response to COVID-19 is forcing insurers to change their claim review model and focus more on those claims that drive costs, not the less-expensive injuries, according to Danielle Lisenbey, president of third-party administration solutions for Broadspire Insurance. The widespread adoption of video conferencing and telemedicine suggests that the comp industry should allow more injured workers to self-report certain types of claims. There’s also been discussion about automated adjudication or “light-touch” claims handling, reducing the man-hours involved in claims management. Medical-only claims, up to a certain threshold, could be processed without human intervention.
  • Modernizing AMA guidelines. American Medical Association’s (AMA) has a new way of devising impairment rating guidelines. The decades-long practice of releasing a hardcover edition of the AMA Guides to the Evaluation of Permanent Impairment every ten years will be replaced by online guides that could be updated as often as once a year in a format that allows easy comparison to previous guides, and is searchable and can be annotated. Importantly, stakeholders who disagree with impairment ratings will be able to petition a panel of experts to make changes, much like the rulemaking process employed by state and federal regulators.

    The plan not to create the 7th edition but continuously update raises legal issues – would state legislatures have to pass on each change? How does it affect Pennsylvania and Oklahoma that have had significant court cases involving the 6th edition and 18 other states that use earlier editions?
  • Injured while working from home. Several defense attorneys discussed why they expect to see more cases of employees claiming they were injured while working from home. Defending such claims can be difficult since they usually lack video evidence or witness testimony to confirm or deny the details. Attorney Emily Edwards, of the Los Angeles firm Manning & Kass, suggested employers establish strict, enumerated guidelines that spell out exactly what constitutes an appropriate work environment, including sending workers an ergonomic checklist and requiring employees to send a photo of the work setting they’ll be using at home.
  • Medicare set asides. John Jenkins, who manages the Medicare contracts with workers’ compensation review contractors for the Centers for Medicare and Medicaid Services, advised that documentation is key to avoiding set-asides problems. Common problems include failure to send in full documentation with the terms of the agreement when a settlement is reached, beneficiaries declining procedures without documentation in the record, and failure to indicate conflicts with state laws regarding medical procedures allowed in workers’ comp. Also, sometimes medical and pharmacy records don’t match payment histories. Actual medical records must be included; independent medical exams cannot substitute for treating physicians’ medical documents.
  • Fraud and misrepresentation cases. Recent court decisions in Florida show that adjusters need to do an extra level of investigation to avoid attorney fees. Surveillance video without other evidence, inadequate documentation of drug tests, and failure to disprove medical necessity were examples of lost cases. Michael Laseter, technical claims specialist with Helmsman Management Services, said the lesson is to uncover solid evidence or to consider the fraud to be part of a larger strategy, such as a smaller settlement. Communication between the carrier and the employer can also be important in avoiding some attorney fees.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

New guidance from EEOC on opioid addiction plus drug testing trends in age of COVID-19

EEOC issues two new technical bulletins

Amid the pandemic, there have been reports of increased drug use and fatal opioid overdoses. Isolation, uncertain job security, family distractions, and a lack of access to traditional support networks present unique challenges for employees who battle with substance abuse.

On August 5, the EEOC issued two technical bulletins on accommodation issues under the Americans with Disabilities Act (ADA) for employees who use opioid medications or may be addicted to opioids. Although the bulletins were created for employees and healthcare providers and do not provide new information (the stated purpose is to provide clarity), they do provide valuable insights to employers when dealing with an employee who legally uses opioids.

Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” makes clear that current illegal drug use is not a covered disability and clarifies that individuals who are lawfully using opioid medication, are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT), or have recovered from their addiction, are protected from disability discrimination. Also, the document answers questions about reasonable accommodations that may be available to employees who legally use opioids, as well as what to do if an employer has concerns about the employee’s ability to safely perform his or her job.

Employers must allow employees to provide information about lawful opioid use, determine if there is a way to do the job safely and effectively with reasonable accommodation, document safety risks, provide accommodations to recovered employees, such as flex time to attend support meetings, and don’t automatically disqualify job applicants if they are in a treatment program.

The second document, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed” informs health care providers about their patients’ legal rights in the workplace. When employees who use opioids qualify as individuals with disabilities under the ADA, it could be necessary for employers to interact with their health care providers to determine whether a reasonable accommodation would enable the employee to do the job without risk of substantial harm to themselves or others. Besides describing the coverage limits under the ADA, the document outlines the types of information employers may need to decide whether the employee has an ADA disability and requires a reasonable accommodation.

Drug testing trends

Even before the pandemic hit, workforce drug testing positivity rates were climbing, reaching a 16 year high in 2019. In its annual drug testing index, Quest Diagnostics Inc. found positivity rates in the combined U.S. workforce increased in urine drug tests, climbed to 4.5%, the highest level since 2003. In the general U.S. workforce, marijuana positivity grew from 2.8% in 2018 to 3.1% in 2019 – an overall surge of 29% since 2015, according to Quest’s data.

In addition to overall increases in workforce drug positives, specific regions of the United States, particularly the Midwest, experienced dramatic increases in positivity for cocaine and methamphetamine, as well as marijuana. For an interactive map with positivity rates and trend lines by three-digit zip code in the United States, visit DTIDrugMap.com.

The analysis of overall drug use also found that in the first few months of 2020, drug deaths increased about 13% compared with last year, “attributable partly to social isolation and other disruptions caused by COVID-19. “Retail Trade had the highest overall positivity rate and Accommodations and Food Services had the highest workforce positivity for marijuana.

There is concern that the stress and anxieties associated with the pandemic will push these numbers even higher. In many states where marijuana is legal, sales have reached record highs during the pandemic. In the press release regarding the report, Dr. Barry Sample, senior director of science and technology at Quest Diagnostics notes, “There is no question that before COVID-19, rates of workplace drug positivity were trending in the wrong direction, based on our Quest Diagnostics data. The enormous strain caused by COVID-19 may prove to be an accelerant on this disturbing trend. Organizations will need to consider the impact of COVID-19 not only on workplace safety but also as a health concern for their employees for some time to come.”

While the industry has done a good job in reducing opioid prescriptions for injured workers – the share of all workers comp claims receiving opioids declined from 55% in 2012 to 34% in 2018 according to NCCI, employers should not relax their vigilance about prescribing behaviors during the pandemic. A recent comprehensive review of 13 studies with more than 13 million participants with musculoskeletal disorders (MSDs) funded by the National Safety Council (NSC) and published by McMaster University in Hamilton, Ontario, found that musculoskeletal disorders can be treated more effectively by medications and therapies other than opioids.

Yet, the difficult logistics of drug screening during the pandemic has led some employers to forgo pre-employment drug testing or postpone to a later date, if it’s allowed under state law. Still others have used mobile testing services, rather than a clinic.

Some employees refuse to report for a drug test based on COVID-19 concerns. Determining if this is truthful or a way to avoid being tested is tricky. It’s important to have a plan and a refusal to test policy. Drug testing may require new rules and new precautions that need to be communicated to those being tested. Further, if a drug test is positive employers should ask for an explanation to ensure compliance with the ADA.

For companies regulated by the Department of Transportation (DOT), staying abreast of the changing notices is key.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Workers’ Compensation and COVID-19: Regulatory, legislative, and guidance updates, trends in claims and lawsuits

Regulatory, legislative, and guidance updates – federal

Expansion of the federal Public Safety Officers’ Benefits Program (PSOB)

The new act, Safeguarding America’s First Responders Act of 2020, creates a general presumption that a public safety officer who dies or becomes permanently disabled from COVID-19 or related complications sustained a personal injury in the line of duty. It extends the benefit payments of PSOB, a one-time lump sum payment of $359,316 and/or monthly education assistance of $1,224, to the children or spouse of a deceased or permanently disabled first responder.

While the program already covers infectious diseases, the difficulty of proofing the virus was contracted on the job made it difficult to receive benefits. President Donald Trump signed the law on August 14 and the presumption runs from Jan. 1, 2020 through December 31, 2021. It will require diagnosis or evidence that the officer had the virus at the time of death and that the diagnosis came within 45 days of their last day on the job.

Executive order makes permanent telehealth rules, excluding PT

The expansion of telehealth services in workers’ compensation beyond the pandemic got a boost from an executive order that makes permanent an emergency funding measure, which temporarily waived restrictions on 135 services delivered by telehealth to Medicare beneficiaries. The order is of particular interest to Texas and other states that tie workers’ comp medical fees to the methodologies and values used by Medicare.

Although this was lauded as an acceptance of telemedicine, many were disappointed it did not permanently include physical therapy and rehabilitation as telehealth services. Since therapists are not listed as eligible telehealth providers in the federal Social Security Act law that governs Medicare, the Centers for Medicare and Medicaid (CMS) concluded it did not have the authority to do so.

Public comments are due by October 5 on the proposed rules .

CDC: Guidance for employers on COVID-19 case investigation, contact tracing, workplace violence in retail, and more

In the guidance, Case Investigation and Contact Tracing in Non-healthcare Workplaces: Information for Employers, the CDC notes, “Quick and coordinated actions, including case investigation and contact tracing, may lower the need for business closures to prevent the spread of the disease.” It offers tips on how employers can partner with health departments and work with their employees to control the spread of the virus.

Intended for use by employers and employees in retail, services, and other customer-based businesses, Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses, offers strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers.

Other new guidance relates to testing, schools, pediatric patients, laboratory personnel, veterinary clinics, and transit station workers.

For OSHA updates, see the OSHA Watch section.

Regulatory, legislative, and guidance updates – state

Georgia joined several other states in enacting a law, the Georgia COVID-19 Pandemic Business Safety Act, designed to protect healthcare facilities, businesses, and other entities from civil liability related to the spread of COVID-19, except in limited situations where there is a showing of gross negligence or intentional misconduct. The law went into effect August 5, 2020 and extends to July 14, 2021.

Nevada passed legislation that provides immunity to certain businesses, governmental entities, and nonprofits from civil liability for personal injury or death resulting from exposure to COVID-19 as long as they adhere to requirements promulgated by local, state, and federal agencies, and refrain from acting in a grossly negligent manner. It is retroactive to March 12, 2020 and expires on July 1, 2023. Notably, public-school entities (including preschools, K-12, charter, and private schools), as well as hospitals and other healthcare providers, were specifically precluded from liability protections.

The legislation also imposed additional mitigation requirements for public accommodation facilities in Las Vegas and several other areas of the state, directing the Director of the Department of Health and Human Services to adopt regulations requiring public accommodation facilities to limit the transmission of COVID-19. A “public accommodation facility” is defined as a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility, or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily, or weekly basis. The legislation also authorizes the Nevada Gaming Control Board to require casinos under its domain to submit written copies of its COVID-19 prevention protocols.

The New Mexico Environment Department filed an emergency amendment to require employers to disclose positive COVID-19 cases among their employees to the state within four hours of being notified of the test results.

The New York State Workers’ Compensation Board adopted a new rule that applies to reimbursement codes and values for COVID-19 testing when a workers’ comp claim has been filed or when testing is part of a pre-operative protocol in keeping with health department guideline.

The Board also published an emergency rule allowing telemedicine technology to be used in emergency settings. Reimbursement already had been authorized for many other medical services in the state. Because it was adopted on an emergency basis, without the public comment period, the rule will expire on Oct. 18.

The Pennsylvania Department of Health issued a new order requiring the development and implementation of policies and procedures related to the distribution of personal protective equipment, specifically N95 masks, for direct care workers in long-term care facilities. Under the new order, nursing homes, personal care centers, assisted living homes and private intermediate care facilities must develop and implement policies for obtaining and distributing personal protective equipment.

The Tennessee COVID-19 Recovery Act was enacted, providing broad protection to individuals and businesses from claims arising from COVID-19 unless there is clear and convincing evidence of gross negligence or willful misconduct. Health care professionals and facilities, businesses, non-profits, religious organizations, public institutions of higher learning, and all other individuals and legal entities are protected from liability under the Act.

A bill that would have made COVID-19 an occupational illness failed in Tennessee’s Senate Commerce and Labor Committee.

Texas became the final NCCI state to officially approve NCCI’s payroll rules relating to paid furlough due to COVID-19 and allowing for reclassification of employees who have changed jobs and are working from home.

Claims: a potpourri of approaches but higher denial rates than other claims

While claim data by state is limited, claims are being handled differently in different states.

Moreover, some businesses are encouraging sick or quarantined workers to use paid time off or have kept paying salaries to avoid claims, feeling it is better to assist virus-stricken employees than create an adversarial situation. Yet, denial rates are relatively high.

The Division of Workers’ Compensation in Florida reports a denial rate of about 46% of the 5,693 claims that had been filed as of the end of June. In Georgia, 44% of the 1,827 claims have been denied as well as almost two-thirds of claims in Colorado (1,200 of 1,923). Of the 11 fatality claims in Colorado, only one has been accepted. First responders and health care workers who contract COVID-19 at work may be eligible for workers’ compensation benefits under Florida law, but the other states mentioned do not have presumption for COVID-19 exposure.

Through July, COVID-19 claims represented 10.2% (31,612) of all California injury claims. This number is projected to grow to about 56,000 since there are time lags in filing, reporting, and recording. Claims include 140 death claims, up from 66 reported as of July 6.

Health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.7% of the claims recorded for the first seven months of this year, followed by public safety/government workers, who accounted for 15.8% of COVID-19 claims. These were followed by retail trade (7.9%), manufacturing (7.0%), and transportation (4.7%), according to the analysis.

California’s executive order of presumption was retroactive to March 19, 2020 and extended through July 5, 2020.

In Pennsylvania, there were 5,354 initial workers’ compensation claims received between March 11 and August 7 that were related to COVID-19, according to the state Department of Labor and Industry. Virginia reports over 6,300 claims as of mid-August, most of which are still pending. Ninety-four have been denied.

During a recent webinar, Health Strategy Associates’ Joe Paduda and Bickmore Actuarial’s Mark Priven, noted FAIR Health, a medical data firm, reported that the median hospital charges for COVID patients, for most age groups, were less than $40,000. The median allowed amount of reimbursement was about $20,000. Further, a recent survey of third-party administrators and insurers shows that most virus claims cost less than $3,500 for medical and indemnity. The costs are driven by just four percent of the claims.

Lawsuits on the rise

According to the employment and labor law firm Fisher Phillips LLC, 319 lawsuits relating to COVID-19 were filed in July, up from 122 in June. As of August 25, there were 532 cases. California leads all states with 100 filings, followed by New Jersey (60), Florida (54), Texas (39), New York (37), Ohio (25), and Illinois (21). Many of the cases involve workers claiming unsafe or unsanitary work conditions or retaliation. Some lawyers speculate that employees may feel it is difficult to win their comp claims and turn to lawsuits. Work comp accounts for only about 15% of the P&C claims related to the virus.

Also emerging are third party suits from family members, alleging wrongful death of a loved one or spreading of the virus to family members, because employers failed to keep employees safe.

new NCCI report compiles some recent COVID-19 workers’ comp lawsuits. While the cases are still pending, they provide a glimpse into the type of behavior and policies that lead workers to sue during the COVID-19 pandemic. Given the common theme of employee safety, the best way for employers to protect themselves from litigation is to follow and enforce public health and OSHA guidelines, provide adequate protective equipment and training, and carefully communicate all protocols. Make the focus of communication the well-being of employees, not production. Steep jury awards are common in emotional cases and there is much emotion surrounding COVID-19, so take steps to avoid going to trial.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com