Tag Archives: dan miller

What Next for GOP Healthcare Plan?

The irony of all ironies. The GOP healthcare plan defeated by the GOP! And I’m glad, given all the well-documented problems with the bill.

The Congressional Budget Office or CBO estimated that 17 million to 24 million Americans would lose their health insurance under the GOP repeal and replace plan. I would have been on top of the list, because I am over 60 but not old enough for Medicare. My grandfather was a Marine in World War I. Both my parents and all of my uncles served in World War II. My grandparents on my mother’s side came to Ellis Island a century ago. I am a red-blooded, patriotic American. How dare they try to take away my health insurance.

See also: Is U.S. Healthcare Ready for ‘All Payer’?  

I get that the ACA has major issues and needs fixes. I, too, have several issues with the ACA, including the employer mandate and how small employers are charged premiums under the ACA. (See: “A Quiet ACA Waiver — and Needed Change,” from April 2014.) I am on board with healthcare reform but not when it’s done on the backs of small employers.

Americans do need sound options for affordable healthcare coverage based on their needs. I get it.

The American public is sick of this political nightmare. The GOP thinks they need to repeal Obamacare to get reelected. Hello, the American public was 56% to 17% against the GOP plan. It is time for a bipartisan approach to healthcare reform. 46 U.S. Democratic senators just signed a letter that they be open to bi-partisan discussions to improve and provide fixes to the ACA, as long as the outright repeal of the ACA is not part of the deal. President Trump also just stated he’d be very open to discussions with the Democrats. Where does it say in the Constitution that to pass a bill in Congress all the votes have to come from one political party?

In addition, several moderate GOP congressmen were not in favor of the bill. My congressman, Rodney Frelinghuysen (R-11th NJ District), and three other Republican congressman from the Garden State announced opposition to the GOP bill for the right reason. It would have hurt the poor, the elderly and working families in their districts. Their offices were flooded with constituents opposed to the plan, along with powerhouses like the AARP.

The bottom line and reality is healthcare costs are never going down. We have an aging population of baby boomers with a ton of health problems, now and coming up. One of the major problems with the ACA is that the costs cannot currently be sustained, and a major reason is that 45% of the millennials ages 18 to 30 have not signed up, even though the overwhelming majority voted for President Obama and the Democratic party.

We have the best healthcare in the world in the U.S. Hands down. However, it is terribly wasteful, inefficient and fragmented. We still rely basically on a fee-for-service system that results in unnecessary and even harmful medical care. (See: “Unnecessary Surgery: When Will It End?” from October 2015.)

The only way to a lasting bipartisan agreement is to find common ground one issue at a time:

–Start with the major premise of the ACA, that Americans cannot be denied coverage for a pre-existing condition. Check.

–Next, help small employers hurt by the ACA and rising premiums.

–There appears to be widespread agreement to allow small employers to ban together in risk pools similar to workers’ compensation.

–Chuck Schumer just indicated a willingness to give the 50 state healthcare commissioners more power and control over premiums in their state. Remember healthcare, like politics, is all local.

–Consider tort reform based on the use of documented medical protocols by medical professionals. Millions of unnecessary tests are performed every day due to medical providers’ fear of a potential malpractice claim.

–Pass a bill to help medical students with their tuition and student loans if they will help serve as primary care providers in poor or rural neighborhoods for a year or two.

See also: Healthcare: Asking the Wrong Question  

There are a ton of good ideas out there that we spend our healthcare dollars on, including prevention and wellness and not sick care.

The time for bipartisan reform is now.

Has OSHA Become a Friend to Insurers?

It may be possible for employers to take a whole new approach to workers’ comp cost containment based on an OSHA regulation that allows an employer to require injured workers to undergo a prompt medical exam outside of the workers’ comp system and to obtain the release of prior medical records.

Most employers are unaware that they can utilize this little-known and virtually untried regulation that allows for employers to pay for second medical opinions under OSHA recordkeeping requirements and regulations.  The regulation can be found in §§ 1904.7(b)(3)(ii) and (b) (4)(viii).

There are two major facets to this statute. First, employers must pay 100% of the medical exam costs outside of the workers’ comp system. Second, insurance companies and third-party administrators (TPA)s cannot schedule such exams or pay for such exams because they cannot work outside the state workers’ comp system.

The costs of such exams are not included in an employers’ overall workers’ comp claim costs, nor are they included in experience modification calculations. The costs for such a program would have to come out of another budget, like risk management or safety.

Of major significance is that, while the regulation states such exams are outside workers’ comp regulations, with proper procedure they and the related medical records are discoverable. They may be released and used in workers’ comp claim adjudication.

This approach would not necessarily require any change in how medical professionals provide exams for injured workers. What would change is how these exams would be scheduled and paid for, outside workers comp.

A key issue is that these employer-directed exams would have to be contemporaneous.” OSHA defines this as, “no change in workers’ condition” between the medical exams.

There would be a very short window, in my opinion, to utilize this OSHA prompt medical exam. These exams would need to be scheduled at the same time as the initial injury reporting.

The intent of OSHA is to allow employers to choose between two conflicting medical opinions (employee medical provider vs. employer medical provider) as to whether an injury or illness is “recordable” under OSHA regulations based on “authoritative” medical opinion.

OSHA regulations are silent on two fronts:  1) the actual timelines beyond “contemporaneous” and 2) whether these medical exams and prior medical records can be used through subpoena to question the need for continuing medical treatment and lost time under state workers’ comp.

But I see no reason why the results of such an exam could not be used even after a claim is determined to be “recordable” under OSHA regulation, because the prompt medical exam and second medical opinions and reports are “discoverable” under proper procedure in state work comp systems, according to OSHA.

The employer can simply say, “We paid for a prompt medical exam under OSHA regulations, and this is what we found out.” The employer would then have the right to share this information with its insurance company or TPA because the injured worker must agree to the exam and release of prior medical records.

This approach would be a great tool for employers in states such as Illinois whose workers’ comp laws allow the employee to select the medical provider.

The recent federal court case in Illinois decided against Fed Ex may well have had a different outcome if the company had used federal OSHA regulations to support its policy of requiring employees to promptly report medical care.

Illinois state workers’ comp law, among many others, clearly gives the employee the right to select the treating medical provider. Most people in the industry would say, “case closed!” But OSHA regulations (federal law) clearly also give employers the right to schedule a prompt medical exam and to choose between two conflicting medical opinions to determine the “most authoritative.” OSHA also refers to Department of Transportation exams as an example of intermediary exams available to employers. Those exam records and results are not part of the comp record, but, with proper procedure and use of subpoena, records may become discoverable in work comp cases.

Employers have always felt powerless in states that allow the injured worker to select the treating medical provider, such as Illinois and New York. By using OSHA regulations, employers may very well have a powerful management tool in their arsenal that they didn’t even know about to address potential fraud, abuse and inappropriate medical care and lost-work time.

Hence, I believe a little-known, rarely utilized outside of state workers’ comp is available to employers under OSHA and could be very powerful.

Stay tuned.

Why Is Workers’ Comp Managed Care Hard?

There are many reasons why workers’ compensation managed care is so difficult, ranging from general economic cost pressures to the regulatory complexities faced by many large employers with multi-state work locations. Issues such as the ability to direct medical care, fee schedules, dispute resolution and the use of treatment protocols and provider networks vary from state to state.

Workers’ comp medical costs have continued to outpace overall medical inflation for years. Twenty years ago, the typical ratio was 60/40 indemnity costs (lost-wages benefits) to medical costs. Today, that ratio has reversed.

Furthermore, workers’ comp has always been susceptible to considerable cost-shifting both by injured workers and medical providers. Many injured workers without health insurance or with limited coverage have been suspected of submitting claims under workers comp to receive 100% “first dollar” coverage with no co-pays or deductibles. This is often known as the “Monday Morning Syndrome” — weekend injuries from recreational activities get reported first thing Monday morning as “work-related.” The support for this theory is that for years it was documented that the No. 1 time of reported injuries is between 9 and 10 Monday morning. In addition, if an injury or illness is reported as work-related the employee may be entitled to lost-wage replacement benefits, which results in a double incentive.

Medical providers also historically have had an incentive to shift costs to workers’ comp. The best example are HMOs financed by pre-paid capitated rates for group health benefits. Work-related injuries are not included in group health plan coverage, allowing HMOs to bill additional charges on a fee-for-service basis. My former HMO had a large sign at the registration desk that read, “Please let us know if your medical care is work-related.”

I was once hired by a major defense contractor during a competitive bid process and was told that all the other consultants had recommended it run its workers’ comp program through its HMOs. My response was, “That is the last thing you want to do.” The risk manager had a big smile on his face.

Many people in the industry were hoping that the ACA and the goal of universal coverage would eliminate the incentive for cost-shifting in workers’ comp. In theory, that may be true. In reality, the ACA may have limited impact or, worse, actually create more incentives for cost-shifting.

The ACA has no direct impact because the various federal mandates for health insurance do not apply to workers’ comp laws. Unlike Clinton-era health reform efforts, the ACA did not attempt to roll workers’ comp into “one big program.”

The ACA may exacerbate cost-shifting if health coverage costs will rise significantly for both employers and employees, which is widely predicted. The ACA premium rating factors virtually eliminate experience rating in favor of community rating for small employers, which helps pay for the added costs and mandated benefits. This will significantly drive up costs for many employers, with estimates as high as 50% above normal yearly premium increases.

Employees are also faced with the prospect of narrower networks and increased incentive to cost-shift, including the growing trend of consumer-driven health plans with high deductibles and other out-of-pocket costs.

Medical providers under intense cost pressures under the ACA may very well continue to cost-shift to the state workers’ compensation systems and “first dollar” coverage to increase revenues. I fear that the high hopes that the ACA will help eliminate cost-shifting may go the way of “if you like your current health plan you can keep it.”

One prominent proponent of the ACA just predicted that 80% of employers will actually eliminate company-paid health benefits by 2018 in favor of directing employees to the state exchanges because paying the $2,000 fine under the ACA for not providing health coverage will be cheaper than providing coverage.

Workers’ compensation managed care is far more complex than managed care in group health benefits for many reasons, including; 50 different state laws and jurisdictional requirements, cost-shifting, fraud and abuse, overutilization of unnecessary or even harmful health services, excessive litigation and friction costs, historical animosities between labor and management, bureaucratic state agencies and an insurance industry and claim administrators who get a grade of C+ from many industry analysts.

If employers think the answers in containing workers’ comp medical costs are in Washington, D.C., or the various state capitals in which they operate, they need to think again. The answer is in the mirror. Many employers are still searching for the cheapest claims administrator and not the best. Remember that “you get what you pay for.”

The same goes for the overwhelming popular use of PPO “discount arrangements.” If employers think they are saving money by looking for the cheapest doctor in town they couldn’t be more misguided. The treating physician plays a key role in diagnosis and treatment, helps determine causation, degree of impairment and the length of disability and return-to-work. Family physicians and other primary care providers are rarely trained in occupational medicine or workers’ comp laws and requirements and are notorious for granting indiscriminate time off work.

Employers must take a much more active role and provide the best and most appropriate medical care for sick and injured workers from the moment of injury or illness and establish better real-time communications between injured workers, medical providers, work supervisors and insurance companies and claims administrators.

Unfortunately, there is no magic bullet. But there is a rule of thumb: Do not even discuss medical cost containment with outside vendors or consultants who recommend broad-based group health networks and strategies. They simply do not apply to workers’ comp and will do nothing but hurt an employer’s ability to address the real cost drivers and complexities of state workers’ comp laws, requirements and systems.