Tag Archives: ada

Workers’ Comp: Cost of Doing Business

Most employers, both large and small, consider workers’ compensation “the cost of doing business.” The vast majority of employers that are not covered under federal regulations such as the Longshore and Harbors Workers Act are 100%-controlled by individual state laws, court systems and dispute resolution procedures. The history dates back to over 100 years ago as the “exclusive remedy” for injuries and illnesses “arising out of, and in, the course of employment.” It was also designed as a “no-fault system.” On paper, it is a simple system to understand. In reality, a simple claim can be a potential landmine and can be lost in a myriad of bureaucratic red tape, attorney involvement and litigation through state court systems.

Although workers’ comp costs are typically viewed as strictly a risk management or safety responsibility, the only way for an employer to truly contain both direct and indirect costs is to take a comprehensive approach and view workers’ comp programs in the context of their overall human resource programs. This requires an integrated, pre-planned, post-injury program design along with clearly defined policies and procedures using tools available under both state workers’ comp laws and federal disability laws. This includes the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), Occupational Safety and Health Administration (OSHA) recordkeeping regulations and other potentially specific federal rules and regulations such as medical exams covered under the Department of Transportation (DOT).

See also: The State of Workers’ Compensation  

Two of the most common cost drivers for employers is late reporting of injuries, known as lag time, and poorly designed return-to-work programs. Although both issues involve the core of workers’ comp cost management, neither is really dictated by state workers’ comp law. In fact, state workers’ comp laws and the treating providers working under those laws can be severely detrimental in efforts to improve prompt reporting and return-to-work programs.

Although workers’ comp benefits and systems are strictly governed by state law, the injury or illness is also covered by several federal laws. One of the biggest paradigm shifts in the workers’ comp industry was the result of the Equal Employment Opportunities Commission (EEOC) ruling in 2014 that the Americans with Disabilities Act (ADA) “applies all the time whenever a medical condition has the potential to significantly disrupt an employee’s work participation.” (See ITL article “Is EEOC an Unlikely Friend on Work Comp,” March 25, 2015)

This EEOC ruling took the workers’ comp industry by surprise. Work-related injuries and illnesses are now clearly governed under federal law under the ADA “as soon as notified,” “all the time” and the process is “continuous.” The EEOC stated the only relevant question is, “whether the disability is now, or is perceived as potentially having an impact on someone’s ability to perform their job, bring home a paycheck and stay employed.” Further, the EEOC stated that the ADA applies, “when a medical condition has the potential to significantly disrupt an employee’s work participation.” What workers’ comp claim does not have the potential to disrupt work participation?

The EEOC went much further and stated that the cause of injury is “irrelevant” and that everyone, treating providers, TPAs and employers, should keep that in mind. Further, the EEOC indicated the employer is 100% responsible for the continuing interactive process regarding potential job accommodations and return-to-work policies under the federal ADA law. The following EEOC comment was the knockout punch: “Physicians and TPAs may be putting employers at risk, even if not properly passed along, and would be especially troublesome if the treating physician was selected by the employer.” This means that under the ADA the employer is 100% responsible for job accommodations for the employee “who can perform the essential functions of their job with a reasonable accommodation.”

A truly integrated disability approach and interactive process is required because all medical-related absences, both occupational and non-occupational, are covered under the ADA. Remember, the injury and return-to-work process are covered under the ADA, but the benefits associated with an occupational injury are still covered 100% under state workers’ comp law. Workers’ comp remains the exclusive remedy for claimant medical and lost-wage benefits but is not the exclusive remedy for an employer to gather relevant information such as accident witness information or medical reports regarding cause of injury, comorbidities and pre-existing conditions that can be extremely relevant in the adjudication of a workers’ comp claim down the road.

Jay Peichel, a principal at Keystone Risk Partners in Media, PA, was intrigued by the various ITL articles on ADA, DOT and OSHA and the federal laws’ relation to the workers’ compensation process and how it may relate to the various barriers that can affect workers’ compensation outcomes such as significant claim reporting lag, limited investigation, poor return to work process and ineffective med-legal determinations. Keystone designed a workers’ comp survey and resultant proprietary scorecard as an assessment tool to quantify how current policies and procedures (including safety rules, accident reporting, supervisor training, medical management, use of provider networks, use of independent medical exams (IMEs) and medical second opinions and return-to-work programs) are integrated to take full advantage of state-specific workers’ comp rules and regulation in coordination with federal disability laws such as the ADA, FMLA, DOT exams, when applicable, and OSHA recordkeeping regulations.

See also: How Should Workers’ Compensation Evolve?  

Keystone saw this tool as a natural fit in their risk mitigation and analytics service platform and also their core platform of captive consulting, captive management and risk placement. Jay Peichel, who specializes in workers’ comp claim analytics and benchmarking for his employer clients, said this new survey was “designed to help isolate hidden cost drivers in HR and workers’ compensation programs. It also provides us the road map to provide recommendations and intervention points not in isolation but rather within an integrated process utilizing best practices in both workers’ comp and disability cost management. Strategically, it links to our analytics platform and our ability to quantify the changes in outcomes and total cost of risk.”

The survey and scorecard are provided for a nominal charge by Keystone Risk Partners. For more information, contact Jay at jpeichel@keystonerisk.com.

New Approach to Mental Health

In recent years, thought leaders in business, government and risk management have developed a sophisticated understanding of the bottom-line impacts of untreated mental illness in the workplace. For example, mental health and brain science dominated the agenda at the Davos World Economic Forum in 2015. And the National Business Group on Health held its first CEO Mental Health Summit in October 2015. Among the costs highlighted in these forums: worker productivity loss, high healthcare utilization rates, skyrocketing disability outlays and employment litigation.

To further advance mental wellness in the workplace, it’s essential for legal and human resources to be part of this collective effort. Here, we explore this disparity in approaches, and discuss why it is so harmful to the interests of all – employers, insurers, employees and their families.

See also: Language and Mental Health

What most thought leaders know about workplace mental health, in a nutshell, is this:

  1. Mental illness is common and treatable, with a 25% incidence rate and an 80% recovery rate, akin to chronic physical illnesses;
  2. Early detection and treatment are the most effective and inexpensive means of helping employees get well and return to full productivity quickly; and
  3. If an employee takes a leave of absence, the longer the absence, the less likely the employee is to return to work.

Thus, the organizational strategic imperative is to create workplace conditions designed to enhance early detection and treatment, restoring the status quo as efficiently as possible.

In stark contrast to this organizational imperative, legal and human resources professionals often advise supervisors, managers and EAP professionals to treat potential emotional and mental health issues exclusively as a performance matter. This advice is usually driven by a desire to “avoid an ADA claim.” However, this approach usually postpones the inevitable and makes a claim under the Americans with Disabilities Act more, not less, likely.

The result is often this pattern: a continuing decline in the employee’s condition and work performance, a severing of trust between employee and supervisor and isolation from others at work. Once a disciplinary action or performance improvement plan is imposed, both parties cut ties, and the result is a toxic cycle of leave of absence, disability claim, a request for accommodation, a failed interactive process, separation of employment and either litigation or a pay package. This is an expensive, disruptive and painful process that can often be avoided.

Employers would do well to consider this as an alternative approach:

Design a mental health policy that will unify executive leadership, legal counsel and human resources around the organization’s strategic approach to overall wellness.

  • This policy defines the vision, and the business case, for improving the mental health of the workforce and using the ADA interactive process as an effective means of achieving early detection and treatment of these impairments.
  • Training for supervisors, managers, legal counsel, HR, EAP staff and healthcare providers will highlight: A timely and collaborative exchange of information and interactive process maximizes success; the ADA does not require a fundamental alteration of any job; work teams and supervisors need to partner with HR on making accommodations work.
  • The policy will establish a confidential process for employees to obtain affordable, accessible treatment (either through existing vendors or through curated referrals).
  • Developing and implementing the mental health policy can stimulate and engage your organization in a discussion of the high incidence of emotional and mental health impairments and how these common, treatable conditions can be accommodated.
  • Mental Health 101 Training should be integrated into total wellness programs, including how to mitigate and address stressors in the workplace, how to respond to a colleague or supervisee who may be struggling and how to seek help confidentially.
  • Mental health champions should be designated, trained and made available as confidential resources to anyone at any point in the chain of command dealing with a mental health issue.

When executive leadership, legal counsel and human resources unify behind a strategic, business-savvy approach grounded in total wellness and ADA compliance, everybody wins.

See also: Why Mental Health Matters in Work Comp  

Insurance Thought Leadership’s continuing series of articles focused on suicide prevention is written by the Workplace Task Force of the National Action Alliance for Suicide Prevention, the public-private partnership championing suicide prevention as a national priority.

Industry Trends for 2017

Every day, our colleagues take care of people facing uncertain situations. Whether they have a workplace injury, need time away for the birth of a child, experience a medical situation that will lead to time off, are in an auto accident or suffer product or property damage, we are here to let them know that it’s going to be okay.

Part of our job in caring for these people is to simplify and clarify the process and to explain what consumers can expect. An evolving system, shifting regulations, rapidly advancing technology and economic uncertainties add to the complexities they face. Key areas in the spotlight for the coming year include good health empowerments, regulation transformations, consumer-centric progressions, risk circumventions and tech modernisms.

We will continue to offer our insights as we monitor the following business advancements and challenges throughout 2017:

Good health empowerments

Accessing care via technology

Technology advancements will continue to influence healthcare delivery. Connecting a specific injury or condition with a quality provider in a virtual setting for more immediate treatment will make these advancements more readily acceptable and increase demand.

Balancing the scale of pain management

Increasing opioid addiction and the legalization of medical marijuana will ensure pain management remains at the forefront of industry discussions. Increased education about the dangers of opioid abuse, the availability of marijuana as a medical alternative and the introduction of alternative pain management techniques will continue to dominate the conversation.

Supporting mental health initiatives

The pressures to reduce stigma and strengthen initiatives aimed at psychosocial issues and behavioral health will continue to mount. The linkage between absence at the workplace and mental health will continue to be highlighted.

See also: 10 Insurance Questions for 2017  

Regulation transformations

Compliance enforcement

Employers will continue to manage compliance-related issues as they respond to changes in the ADA/ADAAA, FMLA and other federal and state laws affecting our industry. Political reorganization and shifting administrative priorities may also create regulatory shifts for OSHA and the EEOC.

Navigating regulatory changes

Assessing the impact of provisions introduced by newly elected officials from the federal and state level in the areas of healthcare, workers’ compensation and parental leave will be at the forefront. It will be necessary to monitor newly introduced legislation in key states such as California, New York and Florida to determine how best to respond and comply with new regulations.

Workers’ compensation strategies

Primary steps among industry leaders include finding common ground and developing strategies focused on benefiting all key stakeholders. Those who favor a federal workers’ compensation option point to inconsistent benefits, rules and regulations among the states. Others believe the state systems have proven to be effective and simply need to be updated. By understanding what should be changed or replicated, legislators can work to revitalize workers’ compensation and help ensure that it continues to fulfill its original purpose.

Consumer-centric progressions

Enhancing the claims experience

The current claims paradigm will continue to shift and be characterized by an increasing focus on the consumer. The needs of injured or ill employees and other consumers will assume center stage. Claims expectations will be established early on; information and resources to support the consumers’ needs will become more readily available; and care and concern will drive and transform the claims experience.

Bridging benefit models

Integrated benefit plans have long been discussed, but not widely implemented. Pushing the boundary between various benefit providers, administrators, payers and employers through advanced online platforms could be at the forefront of many discussions. In addition to technology advancements, there is a renewed health, wellness and compliance mindset that is fostering increased interest in integration.

On-demand consumerism

Consumer and customer expectations are on the rise, and providing an immediate response has become expected in many industries. Increased connectivity and immediate communication are now the standard. In the past, it was enough to provide claim and case details through push technology, seamless payment processing and direct bank deposits. Now, the gold standard is to provide a consumer-focused experience where access to resources and data are a click away. With enhanced consumer engagement comes faster resolution, reduced litigation and reallocation of resources to focus on more complex matters.

Risk circumventions

Crisis plans

Building resiliency through new predictive models in pre-catastrophic events and using new technologies in post-disaster recoveries is on the mind of many employers. Whether the emergency is natural or man-made, cyber- or product-related or a supply chain interruption, having the right pre-catastrophe plan in place continues to be a discussion among employers, brokers, carriers and payers.

Geo risks

More organizations are likely to consider an enterprise-wide response to growing political, economic and global risks as customer markets expand. There is also an increasing need to address travel risks for employees servicing global customers on a short-term or interim basis, and ensure preparedness plans are in place.

Talent strategies

There continues to be a need to attract, train and retain new talent as baby boomers enter retirement years. Employers must learn how to accommodate multiple generations with varied preferences – from telecommuting to technology – and ensure successful integration with the existing workforce. Creating strategies and using new tools for knowledge sharing will help enhance communication and understanding.

See also: 2017 Priorities for Innovation, Automation  

Tech modernisms

Artificial and emotional intelligence

The rapid advancement of technology has led to conversations and interest in artificial and emotional intelligence. Developments in these areas and others such as new connected health technologies, Internet of Things, drones, driverless cars and services using virtual technology are contributing to privacy law and ethical guideline debates.

Explosion in actionable data

With today’s technology advancements and increasing number of connected devices come an explosion in actionable data, creating a need for more data miners. There is a growing demand for data scientists and engineers who can interpret actionable information. The use and expectation of having more refined predictive analytics to drive decisions will continue to increase and underscore the need for this specialized talent. Deciphering actionable insights as more data pours in from various connected devices will continue to be an important topic of discussion.

Self-service innovations

Having been introduced in the banking and airlines industries early on, consumer self-service options are becoming increasingly popular in the risk and benefits industry. Consumers of claims services are seeking the same user experiences that they have become accustomed to in the B2C world, including instant information access, connectivity to tech support and two-way communication when and how they want it.

You can find the original report here.

ACA: Complication for Websites

On May 18, 2016, the Department of Health and Human Services (“HHS”) issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act (ACA), which prohibits discrimination on the grounds of race, color, national origin, sex, age or disability in certain health programs and activities. Effective July 18, 2016, the final rule, “Nondiscrimination in Health Programs and Activities,” required entities covered by the rule to comply with certain accessibility requirements applicable to their use of technology in the provision of services.

See also: AI: The Next Stage in Healthcare  

The rule applies to: (i) to every health program or activity, any part of which receives federal financial assistance provided or made available by HHS; (ii) health insurance plans and marketplaces; and (iii) HHS itself. The rule defines “HHS financial assistance” broadly, to include almost all types of financial benefit transfers, among them grants, loans, credits, subsidies or transfers of real or personal property (but excludes Medicare Part B payments). Key points of the rule include the following:

First, the rule requires entities covered by it to make all programs and activities provided through electronic and information technology (e.g., a website) accessible for individuals with disabilities, unless doing so would impose undue financial or administrative burden. In addition, such entities must provide appropriate auxiliary aids and services when necessary to ensure an equal opportunity for persons with disabilities to participate in and benefit from the entity’s health programs or activities. Auxiliary aids and services include qualified sign language interpreters, captioning, large print materials, screen reader software, text telephones and video remote interpreting services. In short, entities covered by the rule must take appropriate steps to ensure that communications with individual with disabilities are as effective as communications with others, in accordance with Title II of the Americans with Disabilities Act of 1990 and related regulations.

Second, entities covered by the rule must take reasonable steps to provide meaningful access to individuals with limited English proficiency eligible to be served or likely to be encountered in their health programs and activities. This includes providing language assistance services, such as oral language assistance or written translation, free of charge and in a timely manner.

Third, entities covered by the rule must comply with certain procedural requirements. Specifically, the rule requires applicable entities with 15 or more employees to have a grievance procedure, to identify at least one individual accountable for coordinating the regulated entity’s compliance and to have a written process in place for handling grievances.

In addition, entities covered by the rule that operate websites must post on the website notices of nondiscrimination and taglines that alert individuals with limited English proficiency to the availability of language assistance services. Such taglines must be posted in at least the top 15 non-English languages spoken in the state in which the entity is located or does business.

See also: Digital Insurance, Anyone?  

For healthcare providers operating in the digital health industry as well as for software and other technology vendors working with health care providers, the rule may create a number of challenges. Website accessibility has likewise been the focus of increasing litigation, and a number of high-profile settlements have emphasized the potential risks entities may face by failing to address technology-based accessibility issues. Providers would be well advised to review their websites and other customer-facing technology with counsel to determine the applicability of the rule to their activities, as well as any broader accessibility considerations and exposure.

This article is from Jones Day Digital Health Law Update.  For more like this see: http://www.jonesday.com/digital-health-law-update-vol-ii-issue-4-08-08-2016/.

Will Your Website Get You Sued?

Plaintiffs’ attorneys have discovered a new, rich litigation vein to exploit, potentially yielding a treasure of targets to sue. Using Title III of the Americans with Disabilities Act (ADA) and applying it to a modern societal institution (the internet) that was not in existence or contemplated when that law was enacted, lawyers may have hit pay dirt again by claiming that websites are not accessible to the disabled.

Title III of the ADA requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any company that permits “entry” by the public. Although traditionally Title III of the ADA has been applied to physical structures, recent cases have raised issues as to whether these rules may apply to websites, as well.

To date, the case law addressing these issues is very limited and has been mixed. Case law from the Seventh Circuit has applied the ADA to websites, and the First, Second and Eleventh Circuits have applied the ADA beyond physical structures, providing ground for plaintiffs to argue that the ADA can extend to a virtual space such as websites. Meanwhile, the Third, Fifth and Ninth Circuits have applied the ADA provisions to physical locations only.

See also: Broad Array of Roles for Disability Coverage  

The Department of Justice, which is responsible for interpreting and enforcing Title III of the ADA, says that Title III does apply to websites. However, in typical government fashion, the DOJ has delayed releasing its “accessibility” guidelines for webpages, with an anticipated release date in 2018.

While the regulations and laws on website accessibility may be unclear, a few law firms are nonetheless sending out demand letters targeting specific industry sectors nationwide (for example, private universities and real estate brokerage firms) and demanding compliance with onerous website standards. The letters ask the recipient to hire the plaintiff’s law firm (or their preferred vendor) to help reach an “acceptable level” of compliance. In addition, several national retailers, including Patagonia, Ace Hardware, Aeropostale and Bed Bath & Beyond have been named in lawsuits regarding accessibility to their sites. According to Bloomberg’s BNA reports, 45 of these type of lawsuits were launched in 2015. That number is expected to increase substantially in 2016.

With the law so unclear on this topic, how should businesses navigate these murky waters? First, if you receive one of these demand letters, you should consider contacting an attorney and should avoid engaging in discussions with the plaintiff or their law firm without representation. Then, along with your attorney and an IT representative (in-house or a vendor), develop a strategy to bring your webpage into accessibility compliance. Although there is no “one-size fits all” approach to move toward compliance, depending on what is on your website, businesses can consider providing audible text on each webpage and providing audible captions for pictures. Ultimately, to play it safe you may want to take all reasonable steps to improve navigation and access on your website.

See also: New Products and Combined Approaches

Takeaway

Lawsuits related to website accessibility could likely be next cash cow for plaintiffs’ attorneys. As the early case law on this issue is so mixed, there is little guidance as to who has to be compliant and what exactly compliance would look like. Until the DOJ gets around to issuing guidelines (assuming they provide much guidance), businesses should consider reviewing their websites and documenting reasonable efforts to make the sites accessible to the disabled. Further, companies should consider purchasing a robust employment practices liability (EPL) policy with broad third-party coverage that can potentially pick up the defense of claims related to website access claims.

This article was co-written by Marty Heller.