The agendas of all the big workers' compensation seminars agree. Controlling costs is the biggest and most pressing issue. Some might say it's the only issue. But I wonder if this emphasis isn't counterproductive….
The regulatory side
From a regulator's point of view, cost control is accomplished by imposing restrictions, by establishing fee and treatment schedules and, occasionally, by providing incentives that encourage the desired behavior. At bottom, the basis of regulation is distrust.
Controls are generally set to make everyone play by a single set of rules that allow the illusion of predictability and fairness.
I say “the illusion” because a clear understanding of the most common style of regulation shows a dysfunctional relationship. The regulator issues a regulation controlling, say, billing by physical therapists. The physical therapists will always collectively understand their business better than the regulator and will soon find a way to “work around” any portion of the regulations that they find objectionable. The regulator will eventually become aware of the “hole” in the regulations. The regulator will then move to reassert control by tightening the regulations, only to start the cycle all over again.
In the meantime, the regulator comes to believe that the stakeholders (physical therapists in this example) cannot be trusted. The stakeholders have to be ever more closely controlled. When that fails, it “must be” because those pesky PTs are trying to make excess profits; the belief that they are self-serving becomes entrenched. Multiply this phenomenon by all of the various groups of stakeholders and service providers, and you see the atmosphere of “us against them” that is all too common in regulatory circles.
The trouble with this pattern for controlling costs is that it really is a cost driver. Every time the regulations change, two things happen.
First, the change itself is costly. Computer programs have to be changed. People have to be retrained. Time that used to be spent doing the work of the industry is spent doing the work of the regulator. At the end of the day, the passive-aggressive resistance of the industry will win, and the cost of cost controls will outweigh the savings.
Second, the services to the injured get constrained by the cost controls, and the ability to provide individualized services suffers. One size does not fit all in injury management, and attempts to make it so usually end up fitting virtually no one.
The claims side
When the claims payer tries to impose control costs, the result is a different kind of cost driver. Once again, the whole system is based upon distrust. The claim must be investigated before it is accepted –even though only about one in 20 of the claims reported for suspected worker fraud justifies a finding of illegal behavior.[i1] Rehabilitative services that the research clearly shows are most effective if provided within the first days of the claim are delayed because this claim just might be the one in 20 (or worse, in a cynical attempt to save money by getting the injured worker with a legitimate claim to “just go away.”) Unfortunately, the delay of necessary services makes the claim more likely to become complex, more likely to attract the ungentle ministrations of the lawyers[ii], and less likely to resolve uneventfully.
Not only does the delay hurt, but the process of investigating the claim creates its own opportunities for adverse outcomes. Investigation is a statement of distrust. Tell the worker that you question whether she is really as hurt as she claims, and the natural reaction is to push back and try to prove that the injury really is severe. Sometimes, in that process, workers become attached to the belief in the seriousness of their injury, with unfortunate results.
Medicalization of the claim often occurs in the process of seeking a diagnosis. The diagnosis is not necessary for treatment of the injury in many cases – conservative care for, say, lower back pain is the same for the first few weeks whether it has a diagnosis or is just unspecified pain. Yet, because of the payer's distrust of the claim, we routinely get a diagnosis even though that risks losing control of the claim.
Once the claim has been accepted, the scrutiny and distrust continue, again in the name of cost control. Adjusters and third-party payers have to justify their work, so claims are scrutinized. Frustration, delay and anger may be created in another self-perpetuating cycle of distrust.
The outcomes of this dysfunction are often visited on the injured worker, in the form of reduced or curtailed injury management and lack of time for patient education that has proven value in durable recovery.
We fail to realize that many cases of failure to recover as anticipated are caused by distrust, expressed in the system as cost-control measures. Moreover, the evidence is overwhelming that claims with unexplained failure to recover make up a large percentage of the 20% of claims that result in 80% of our loss costs. We might save a few dollars on some claims with our cost-control scrutiny, but at the risk of creating unnecessary complex, long-tail claims. We also risk pushing some of the cases into becoming one of those relatively rare cases of genuine misconduct, as people try to make the system work for them, in any way they can.
So, where are the savings?
A way forward
There are many other ways that cost controls actually become inadvertent cost drivers in the system. I'm not going to belabor the point further, because the important take-away is that an alternative exists. If 20% of claims create 80% of costs, then any efforts to prevent claims from falling into that 20% are heavily leveraged in their cost-savings impact.
If we want durable and sustainable cost control, the first step is to understand the dynamics that allow some people to recover and thrive while others with similar injuries spiral down to despair and dependency. While there isn't the space to discuss that topic here[iii], a better understanding about what helps injured people to avoid becoming “disabled” almost certainly leads to real and sustainable cost savings. And the distrust that currently permeates our systems isn't any part of it.
We created our situation, so we ought to be able to control it. Einstein said: “Any intelligent fool can make things bigger, more complex and more violent. It takes a touch of genius – and a lot of courage – to move in the opposite direction.” Our current fixation on cost controls certainly makes the system more complex and full of new players eagerly selling us the latest magic bullet. The understanding to move us in the opposite direction also exists, if we can find the internal fortitude to use it.
[i1] The 5% average comes from presentations at the National Workers' Compensation College, International Association of Industrial Accident Boards and Commissions, 2004-2006, and from the author's own personal observation while supervising the New Mexico Workers' Compensation Administration fraud investigation unit over the course of five years.
[ii] See Aurbach, R. “Suppose Hippocrates had been a Lawyer,” Psychological Injury and Law, Volume 6, pages 215-237, 2013.