Tag Archives: ada

Stigma’s Huge Role in Mental Health Care

The role of stigma for people who are in need of mental health treatment is both profound and devastating. According to a 2011 study by the Association for Psychological Science, only 60% of people diagnosed with mental health problems reported receiving treatment. That means 40% of the millions of people in the U.S. who need professional help are getting no treatment whatsoever. Social stigma, myths and stereotypes play a huge role in limiting both access to care and discouraging people from pursuing mental health treatment. The problem is multifaceted and complex and has a wide-reaching effects on people’s education, employment, health, well-being and relationships.

There are many forms of stigma and stereotypes. First, there is a widespread public perception that people with mental illness are dangerous, unpredictable and responsible for their own illness and not deserving of compassion and care. As a result, people in need of help are excluded from jobs, education and much-needed social interaction.

This problem also plays out in the professional medical setting, where negative stereotypes often lead medical providers to be less likely to focus on the patient rather than the disease and to not place the needed focus on recovery and referral for needed consultation and care.

Stigma in society and lack of awareness among medical providers also contributes to what is known as self-stigma. That is: People in need of help believe these stereotypes themselves and develop low self-esteem, which results in denial, attempts to hide problems, alcohol and drug abuse and a sense of hopelessness — they feel they are unable to recover, so why try? These are the people who make up the 40% not seeking treatment and consultation.

Stigma results in a double problem for many people. They have real underlying symptoms, which lead to an actual disability, while myths and misconceptions lead to stereotypes and prejudice. Too often, people turn against themselves. Depression, for example, has been referred to by mental health professionals as “rage turned inward.” This can lead to fear of rejection, isolation and hostile behavior. The result often is that the needed health care system is replaced by the criminal justice system.

How many people incarcerated today have an underlying untreated mental health condition? My guess is most, if not all. These are the people who did not pursue potential life opportunities for themselves but rather pursued illegal drugs or crime out of a sense of low-self-esteem and hopelessness. The overall result is both devastating to them and society as a whole.

Underlying mental health issues also have a huge impact on both healthcare and disability costs for private and public employers, health and disability insurers and both Medicare and Medicaid and the Social Security disability system (SSDI). How many people collecting private or public disability have an underlying, undiagnosed mental health problem? Nobody really knows, but many disability experts believe the number is staggering. The resulting costs to employers, insurers and taxpayers of untreated or undiagnosed mental health issues is in the billions of dollars.

In 2003, I helped conduct an unpublished study for a major U.S. corporation regarding its active employees out of work on full disability with a primary diagnosis of depression. The analysis cross-referenced these employees’ disability claim data with their health insurance data base. It was found that 80% of the primary treating providers in the healthcare benefit side had no mention whatsoever of a primary or secondary diagnosis of depression. This means that their primary treating provider or “family doctor” was either unaware of the underlying mental health issues or failed to acknowledge or consider the possibility.

What was not able to be studied in this research was how many workers out on disability or workers compensation for a “bad back” really had an underlying mental health issue. The study did determine the No. 1 and 2 co-morbidities for employees out on disability for depression was musculoskeletal conditions and gastrointestinal conditions. The overwhelming number of medical providers treating and submitting claims for these co-morbidities (80%) had no mention of an underlying mental health issue despite the fact that their patient was out of work on full disability with a primary diagnosis of depression. The healthcare and disability costs of these employees out on full disability with a primary diagnosis of depression was staggering and in the millions just to this U.S. corporation. Because this large employer was self-insured for healthcare, disability and workers’ compensation these costs go directly to its bottom line. These costs are then indirectly passed on to corporate customers and the general public purchasing the company’s products and needed services.

What needs to be done to address underlying and untreated mental health conditions?

I do not believe any new federal legislation is required at this time. The Affordable Care Act (ACA), the Americans with Disabilities Act (ADA) and the Mental Health Parity Act are all in place to help people receive needed mental healthcare access. There is no reason people should not seek professional help that they need.

As in most complex public health issues, the answer lies in awareness, education, outreach and research dollars. Educating the public is a very difficult task. As we have learned the hard way with overall prejudices, urban myths and misinformation in society, in general educating people can take generations. Medical authorities in leading medical schools and institutions have also stated that documented research and best practices based on evidence-based medicine can take 20 years to filter down to local medical practices, if ever.

People suffering with underlying mental health issues don’t have 20 years to wait for proper referral and treatment. Medical professionals on the front line need to be educated today to ask the right questions with their patients about potential underlying mental health issues and help reassure people that the overwhelming majority of mental health issues can be diagnosed and successfully treated.

As a society we can no longer allow people to hurt themselves or others when treatment is readily available for people who need help because of genetic and other environmental causes that are no fault of their own. How many of our major problems such prejudice and gun violence have a root cause in untreated mental health issues? Maybe all of them.

Obesity as Disease: A Profound Change

The obesity rate in the U.S. has doubled in the past 15 years. More than 50% of the population is overweight, with a BMI (body mass index) between 25 and 30, and 30% have a BMI greater than 30 and are considered obese. Less than 20% of the population is at a healthy weight, with a BMI less than 25.

On June 16, 2013, the American Medical Association voted to declare obesity a disease rather than a comorbidity factor, a decision that will affect 78 million adults. The U.S. Department of Health and Human Services said the costs to U.S. businesses related to obesity exceed $13 billion each year. With the pending implementation of ICD (International Classification of Diseases) 10 codes, the reclassification of obesity is is fast becoming a reality and will dramatically affect workers’ compensation and cases related to the American Disability Act and amendments.

Before the AMA’s obesity reclassification, ICD-9 code 278 related to obesity-related medical complications rather than to obesity. The new ICD-10 coding system now identifies obesity as a disease, which needs to be addressed medically. Obesity can now become a secondary claim, and injured workers will be considered obese if they gain weight because of medications, cannot maintain a level of fitness because of a work-related injury or if their BMI exceeds 30. The conditions are all now considered work-related and must be treated as such.

The problem of obesity for employers is not confined to workers’ compensation. The Americans with Disability Act Amendment of 2008 allows for a broader scope of protection for disabilities. The classification of obesity as a disease now places an injured worker in a protected class pursuant to the ADA amendment. In fact, litigation in this area has already started. A federal district court ruled in April 2014 that obesity itself may be a disability and will be allowed to move forward under the ADA (Joseph Whittaker v. America’s Car-Mart, Eastern District of Missouri).

Obesity as an impairment

Severe obesity is a physical impairment. A sales manager of a used car dealership was terminated for requesting accommodation and won $128,000. He was considered disabled, and the essential function of the job was walking, so he was terminated without reasonable accommodation.

The judge ruled that obesity is an accepted disability and allowed him to pursue his claim against his employer. This could have substantial impact for employers as injured workers could more easily argue that their obesity is a permanent condition that impedes their ability to return to work, as opposed to a temporary life choice that can be reversed.

The Equal Employment Opportunities Commission (EEOC) has recently chimed in on obesity. According to the EEOC, severe [or morbid] obesity body weight, of more than 100% over the norm, qualifies as impairment under the ADA without proof of an underlying physiological disorder. In the last year, we have seen an increasing number of EEOC-driven obesity-related lawsuits. Federal district courts support the EEOC’s position that an employee does not have to prove an underlying condition, especially in cases where there is evidence that the employer perceived the employee’s obesity as a disability or otherwise expressed prejudice against the employee for being obese.

Workers’ compensation claims are automatically reported to CMS Medicare with a diagnosis. When the new ICD-10 codes take effect, an obesity diagnosis will be included in the claim and will require co-digital payments, future medical care or continued treatment by Medicare.

There is good news on the horizon. Reporting of a claim only happens if there is a change in condition not primarily for obesity. It is recommended that baseline testing for musculoskeletal conditions be conducted at the time of hiring and on the existing workforce. In the event of a work-related injury, if a second test is conducted that reveals no change in condition, it results in no reportable claim and no obesity issue. In the event of ADA issues, the baseline can serve to determine pre-injury condition or the need for accommodations.

What does this mean to employers?

Obesity is now considered a physical impairment that may affect an employees’ ability to perform their jobs and receive special accommodations pursuant to the ADA.

An increasingly unhealthy workforce will pose many challenges for employers in the next few years. Those that can effectively improve the health and well-being of their employee population will have a significant advantage in reducing work comp claim costs, health and welfare benefits and retaining skilled workers.

Recent studies

In a four-year study conducted by Johns Hopkins with an N value of 7,690, 85% of the injured workers studied were classified as obese. In a Duke University study involving 11,728 participants, researchers revealed that employees with a BMI greater than 40 had 11.65 claims per 100 workers, and the average claim costs were $51,010. Employees with a BMI less than 25 had 5.8 claims per 100 workers, with average claim costs of $7,503. This study found that disability costs associated with obesity are seven times higher than for those with a BMI less than 30.

A National Institute of Health study with 42,000 participants found that work-related injuries for employees with a BMI between 25 and 30 had a 15% increase in injuries, and those with a BMI higher than 30 had an increase in work-related injuries of 48%.

The connection between obesity and on the job injuries is clear and extremely costly for employers. Many employers have struggled with justifying the cost of instituting wellness programs just on the basic ROI calculations. They were limiting the potential return on investment solely to the reduction in health insurance costs rather than including the costs on the workers’ comp side of the equation and the potential for lost business opportunities because of injury rates that do not meet customer performance expectations. Another key point is that many wellness programs do not include a focus on treating chronic disease that may cause workers to be more likely to be injured and prolong the recovery period.

Customer-driven safety expectations

There are many potential customers (governments, military, energy, construction) who require that their service providers, contractors and business partners meet specific safety performance requirements as measured by OSHA statistics (recordable incident rates) and National Council on Compensation Insurance (NCCI) rating (experience modifiers) and, in some cases, a full review by 3rd party organizations such as ISNet World.

Working for the best customers often requires that your company’s safety record be in the top 25th percentile to even qualify to bid. To be a world-class company with a world-class safety record requires an integrated approach to accident and injury prevention.

Challenges of an aging workforce

The Bureau of Labor Statistics projects that the labor force will increase by 12.8 million by 2020. The number of workers between ages 16 and 24 will decline 14%, and the number of workers ages 25 to 54 will increase by only 1.9%. The overall share of the labor force for 25- to 54-year-olds will decline from 68% to 65%. The number of workers 55 and older is projected to grow by 28%, or 5.5 times the rate of growth in the overall labor force.

Employers must recognize the challenge that an aging workforce will bring and begin to prepare their workforce for longer careers. A healthy and physically fit 55-year-old worker is more capable and less likely to be injured than a 35-year-old worker who is considered obese.

Treating chronic disease

Employers who want a healthy work force must recognize and treat chronic disease. Many companies have biometric testing programs (health risk assessments) and track healthcare expenditures through their various providers (brokers and insurance carriers).

The results are quite disappointing. On average, only 39% of employees participate in biometric screenings even when they are provided free of charge. For those employees who do participate and who are identified with high biometric risk (blood pressure, glucose, BMI, cholesterol), fewer than 20% treat or even manage these diseases.

This makes these employees much more susceptible to injury and significantly lengthens the disability period. The resulting financial impact on employers can be devastating.

Conclusion

Best-in-class safety results will require a combined approach to reduce injuries and to accommodate new classes of disability such as obesity. It is important that employers focus on improving the health and well-being of their workforce while creating well-developed job descriptions, identifying the essential functions, assessing physical assessments and designing job demands to fall within the declining capabilities of the American workers. It is important for an employer to only accept claims that arise out of the course and scope of employment. This is especially true with the reclassification of obesity as a disease. Baseline testing will play an essential role in separating work-related injuries from pre-existing conditions in this changing environment.

Is EEOC an Unlikely Friend on Work Comp?

The traditional school of thought since the Americans with Disabilities Act (ADA) was enacted in 1990 is that it did not apply to state workers’ comp cases because they involve temporary disabilities and work restrictions. Claimants were not considered “qualified individuals with a disability” under the ADA. Even if the ADA provision for a “reasonable accommodation without undue hardship” is to be taken into consideration, the process would not begin until the claimant reached maximum medical improvement (MMI). But informal EEOC guidelines released in December 2014 stated that these traditional understandings may not be legal.

The EEOC release stated that it is “not true” that MMI should be considered the trigger for ADA-related protections for employees and obligations for employers. Employers must begin the ADA interactive process for return to work (RTW) much sooner than commonly thought. The EEOC is saying that workers’ comp and the ADA process are to run simultaneously, not sequentially. In addition, the worker must be an active participant in the process. This is a major surprise to many in the industry.

I have been a proponent of using “the spirit of the ADA” to implement return-to-work practices in workers’ comp programs for 25 years. (See previous ITL article, “Return-to-Work: A Success Story,” June 25, 2014.) However, these new “interactive process” guidelines may change the whole practice of RTW in workers’ comp because most employers and their third-party administrators (TPAs) or insurers typically postpone attempts at a reasonable accommodation until the claimant reaches MMI. That may now be construed as a violation of employee rights and employer obligations under the ADA.

In addition, the EEOC guidelines give a very broad definition of disability and when it applies under the ADA. The EEOC spokesperson said the ADA applies “all the time” and “as soon as notified” when “a medical condition has the potential to significantly disrupt an employee’s work participation. . . . 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.”

That is a mouthful to swallow and think about. The ADA would apply if the disability is “perceived” as having an impact on the ability to perform a job. Perceived by whom? The employer? The employee? The physician? What physician?

What does this mean for employers?

The EEOC stated that its biggest concern is the employee who has a disability but who can perform the essential functions of a job with a reasonable accommodation. The cause of the disability is considered irrelevant under the ADA. It will now be very difficult for employers to say that a worker is not a “qualified” individual under the ADA because the person obviously held the job prior to the disability.

The EEOC stated that everyone, including treating physicians, TPAs and employers, should “keep that in mind” but that only the employer is accountable for complying with the ADA. Treating physicians and employer vendors who fail to communicate with employers during the “stay @ home” process may be exposing the employer to increased risk and liability, and the EEOC spokesperson said this failure would be particularly troublesome if a treating physician who is picked by the employer doesn’t tell the employee about adjustments that might allow her to work. The employer may be liable for failing to provide that accommodation even if not properly passed along. The EEOC spokesperson went on to say that physicians and vendors should be educating employers. But who, may I ask, is educating the physicians and employer vendors?

How should employers react to these EEOC process guidelines for workers’ comp and other non-occupational disability programs? Employers should embrace them!

Most that is truly considered workers’ comp managed care and RTW best practices are encompassed in these interactive guidelines: prompt, high-quality medical care followed by 24-hour contact between workers, treating providers and supervisors. Safe return to work, with or without reasonable accommodations, should be the goal from day one and documented in each case, even without intervention by the EEOC.

Sebastian Grasso, CEO of Windham Group in Manchester, NH:

sgrasso@windhamgroup.com

which specializes in “failed return-to-work,” agrees and argues that the EEOC action should be a “wake-up call” for employers. Grasso, like several other industry experts interviewed for this article, said that in his 25-year career in the RTW business his employer/insurer clients have never brought up the ADA in workers’ comp cases. He said the two problems faced on a daily basis in the workers’ comp industry that severely hamper RTW efforts are erroneous job descriptions and inflexible employers who won’t take injured workers back unless they are “100%.” This traditional mindset and passive approach to RTW may now be considered an ADA violation, so employers and insurers may have to re-think their RTW policies and procedures.

Grasso stated; “We get injured workers back to their original jobs; it’s what we do every day. It’s the right thing to do; it’s non-adversarial and benefits all the players in the process.” This approach appears to be both within the spirit and now actual guidelines of the ADA, according to the EEOC.

Ted Ronca (medsearch7@optionline.net), a leading workers’ comp and disability attorney based in New York, also stated that he never saw the ADA brought up in a workers’ comp case in New York in the past 24 years. Ronca also feels employers should “champion” the new approach for workers’ comp RTW programs. He recommends the first thing for employers is to establish job requirements and bring the employee into these preliminary discussions. Ask the worker for his input on reasonable accommodations and document the discussion.

Back when the ADA was enacted in 1990, many believed a slew of litigation would result from workers’ comp cases. This has rarely, if ever, happened. Most experts I have spoken to are not aware of any cases, but the original fears may now come to fruition. As Ronca noted; “75% of the cases in the New York work comp system involve cases where the claimant’s attorney is claiming total disability and seeking a lump-sum award.” Getting that injured worker back to work is not on the claimant’s attorney agenda but should be on the employer’s.

Employers should not fear the ADA but embrace it. The ADA has built-in protections for employers such as that any accommodations must be “reasonable without undue hardship.” This means significantly difficult or expensive. In addition, employers are not required to eliminate or reduce the essential functions of a job even temporarily. The EEOC is simply saying that employers may choose to reduce job demands and productivity expectations on a case-by-case basis and that no blanket policy is appropriate.

However, the EEOC goes on say that the ADA cannot be used to deny a benefit or privilege to which an employee is entitled, such as time off under the Family and Medical Leave Act (FMLA), workers’ comp, disability, sick leave, accrued vacation or any other leave and benefits. The EEOC considers the ADA “civil rights for people with disabilities.”

I just loved the EEOC comment that an employer’s stay @ home policy is not a reasonable accommodation. Not only is an interactive process the right thing to do for disabled workers, it will save money, improve productivity and protect employers from potential ADA violations and obligations.

It may be time to rethink your return to work program. It’s about time!

IME: Success or Fishing Expedition?

Independent medical exams (IMEs) are widely used throughout the workers’ compensation insurance industry. However, as with any tool, you generally need a good carpenter or mechanic to get the best results. Because of the time required to arrange these medicolegal exams and because of the complexities of determining causation, pre-existing conditions, degree of impairment, etc., most insurance companies and third-party administrators (TPAs) outsource this function, which generates findings that can be used in the formal claims adjudication process.

The problem with outsourcing IMEs is that it typically removes from the process the only stakeholder who actually knows the injured worker: the employer.

The employer can make better decisions about whether to request IMEs — which are very expensive — by looking for red flags that, in many cases, only the employer could know about.

The most basic reason is if there is a legitimate question as to whether an injury or illness was caused by a work-related accident or industrial exposure. Red flags that might indicate the need for an IME include: The accident/injury wasn’t witnessed by other employees; reports of how the injury occurred are vague; or the injury was not promptly reported. Other triggers that only the employer would know include: a history of disciplinary, attendance or other HR issues; prior work history and the possibility that the employee is working a second job; or participation in sporting and recreational activities outside the workplace.

Other flags could be: Healthcare providers indicate that the employee may not be able to return to work, based on subjective complaints, or have proposed treating plans that are open-ended, with no clear-cut goals.

Other key issues that should be identified early in the claims process are: pre-existing conditions; any unauthorized medical treatment; any treatment by known “provider mills”; all litigated or potentially litigated claims; any potential subrogation opportunities; any doctor shopping; prescriptions for opioids; recommendations for elective surgery, such as on the back or for carpal tunnel issues; and any plain, old-fashioned tips from other employees.

IME providers often miss three fundamental questions: Can this injury or illness be caused by the workplace? Under what circumstances? Did these circumstances exist in this case?

Medical providers performing IMEs often make decisions in a vacuum, with little, if any, input from the employer. Leading medical experts who routinely perform IMEs state they are often “flying blind” and would have conducted a whole different physical exam or diagnostic testing if they only had more information. They tell me that they often have no idea why an IME has been scheduled. Miscommunication is common, and prior medical reports are often delayed or even lost.

IMEs should be conducted within a well-planned strategy at both the local level and the corporate level, between an employer and its insurer or TPA. The success or failure depends on active involvement and strong communications by all involved, including employers, IME providers, injured workers and insurance carriers and claims administrators.

As noted in previous articles, employers may consider using an OSHA-sanctioned “contemporaneous” medical exam – conducted at the moment of injury/illness notification but done outside the workers’ compensation system. Employers may consider this approach when they suspect a difficult or potentially litigated claim in states where they have little control over the choice of medical provider or face other jurisdictional or claim-specific challenges.

Employers, whether they are fully insured or self-insured, should ask detailed questions about how IMEs are handled on their behalf. Most insurers and TPAs outsource some, if not all, of the process of scheduling and arranging IMEs. There are dozens of questions I would ask about IME panel selection and quality assurance, including; credentialing, board certification, training, continuous education, experience, expertise, reputation, affiliation with university-based teaching hospitals or sports teams, along with knowledge and utilization of AMA impairment guidelines, evidence-based treatment protocols and application of disability guidelines from state workers’ comp, the Americans with Disabilities Act  (ADA) and others.

The only true stakeholder in what can be a very expensive, time-consuming and frustrating process to obtain quality IMEs is the employer. It is the employer that should be asking about “other” workers’ compensation costs and whether IMEs, which often include “hidden” costs, are actually having a positive outcome in successfully denying, closing or settling difficult and contentious workers compensation claims.

The 80/20 rules applies in both workers’ compensation and healthcare — 20% of claims will generate 80% of the costs. Employers need to have strategies in place both early and often to help confirm the relationship between reported injuries and illnesses and the workplace.

The employer’s ability to obtain credible and authoritative medical opinions is key to containing workers’ compensation costs from medical, indemnity (lost-wage replacement), permanent disability awards and administrative, legal and other fees.

Employers need to take a much more active role in ensuring high-quality healthcare while addressing waste, fraud and abuse in the system. Employers should avoid fishing expeditions but rather use these expensive tools wisely and put them in expert hands. If you are going fishing, make sure you have the right bait, deck hand and captain.

IMEs can be a great tool or waste of time and money. It’s more up to you than you think.

Are Annual Physicals Really Worthless?

Dr. Ezekiel Emanuel wrote a contrarian opinion piece in the Jan. 8, 2015, issue of the New York Times titled, “Skip Your Annual Physical.” Dr. Emanuel is an oncologist at the University of Pennsylvania and was an adviser to the Obama administration regarding the design of health reform. He is also the brother of Rahm Emanuel, a former presidential chief of staff.

As you can guess from the title of the opinion article, Dr. Emanuel believes that annual physicals are not worth having because they do not reduce mortality. He cites a Cochrane Review study to back up his statement. Click here to read a summary of the study by the American Association of Family Practice.

Dr. Emanuel’s comments bring the following question to mind: How is one to have the evidence-based screenings recommended by the U.S. Preventive Services Task Force (USPSTF) without an annual physical?

Here is a list of some of the USPSTF screenings and interventions that studies have shown to be of value by reducing morbidity or mortality that could be accomplished at an annual physical:

  1. Screening for Type II diabetes
  2. Screening for hypertension
  3. Screening for lipid disorders (e.g. high cholesterol)
  4. Screening and counseling for alcohol abuse
  5. Screening for cervical cancer every 3-5 years
  6. Screening for obesity
  7. Potential use of aspirin for the prevention of heart attack
  8. Counseling on folate vitamin supplements for all women capable of pregnancy to prevent neural tube defects
  9. Counseling overweight and obese patients to improve their diet and exercise habits

Source: American Association of Family Practice

Many of these conditions are not rare.  For example:

  • 9.3% of the U.S. population has diabetes-of whom, 9 million are undiagnosed (Click here for ADA source). Assuming a U.S. population of 300 million, 9 million is 3% of the population, so three in 100 screenings would find undiagnosed diabetes. In a company with 1,000 employees, screening for diabetes would result in identifying 30 new cases of diabetes.
  • 29% of the adult U.S. population has hypertension-17% are undiagnosed (Click here for CDC source). 17% of 29% is about (again) 3% of the adult U.S. population, so three in 100 screenings would find undiagnosed hypertension. In a company with 1,000 employees, screening for hypertension would result in identifying 30 new cases of hypertension.

An annual physical is a great way to address these nine proven screening tests and interventions that will lengthen life and reduce suffering. This is only a representative sample from the USPSTF.  There are actually more than nine. You would not “technically” need an annual physical, but you would have to have some other mechanism for having these screenings and interventions performed.  A similar point is made by the American Academy of Family Physicians in its review of the Cochrane study. However, the use of the doctor’s office as the setting for the screening means that if an abnormality is found (i.e. diabetes, hypertension, etc.), then the doctor can prescribe an intervention.

To skip an annual physical and to not have the screening performed some other way-and followed up on-is hazardous to your health