Who thought the much-feared Federalization of workers comp would result in this.

A new regulation finalized by the US Department of Labor on April 1 overturns state requirements for workers’ compensation, while limiting employers’ liability for occupational injuries or illnesses. President Trump alluded to the pending change in his speech in Ohio earlier in the week.

The speech was supposed to focus on infrastructure, but it appears Trump had the new DOL regulation in mind when he noted the maze of workers’ comp laws makes it very hard for businesses to operate across state lines. Removing these “burdensome” constraints would “unleash all American businesses.”

One newspaper account noted

“a key part of his plan, he said, is to reduce a burdensome regulatory approval waiting time from as long as a dozen years to a year, by establishing one federal point of contact for a yes or no answer on a project.”

While there have been many far-reaching cutbacks in regulations directly or nominally affecting employers, this latest is undoubtedly the most significant seen to date.

According to a statement from Acting Associate Deputy Secretary for Policy Aprille Pfuehle; “The regulation essentially sets a Federal Maximum Standard for coverage and benefits for occupational illnesses and injuries. Employers with workers in any state with benefits greater than a to-be-determined Federal Maximum Standard can opt to be regulated by DOL and not that state.”

Employers who choose DOL regulation evidently will have additional protection from liability as well. While I’m no employment law expert, it appears the Trump Administration is relying on ERISA pre-emption as the lever to dis-engage occupational coverage from state regulation.

The regulation was reportedly developed and written by DOL’s Office of Congressional and Intergovernmental Affairs, under the direction of the Assistant Secretary; no other information was provided as to the rationale behind this.

No details on what entity is going to develop the Federal Maximum Standards were provided, nor was there any timeframe given. Given the magnitude of this change, we can expect it will take months to make any progress, and any change will certainly result in legal challenges.

Part of the Trump Administration’s ongoing effort to reduce the impact of ‘unnecessary regulations” on businesses, this follows earlier moves to delay or eliminate a host of workplace safety regulations, including beryllium exposure standards, medical benefits for US Energy Department workers exposed to radiation, and cutbacks on enforcement of wage/hour regulations.

While we knew the Trump Administration has been very business-friendly, this latest goes much further than these earlier efforts.

 

 

 

 

 

 

One of the best conferences of the year is CWCI’s annual get together in Oakland California.

More information is packed into a morning than you’ll find in most multi-day events – and in a more entertaining format – and no one is more informative and entertaining than CWCI’s Alex Swedlow (I’m fortunate indeed to count Alex as a good friend and colleague).

First question – As Alex noted, way back in the pre-Triangle Shirtwaist fire days (no, I wasn’t around then), business claimed 95% of injuries were considered to be the fault of the workers – what is the actual number?

And why do many claims organizations/processes seem to operate as if that statistic is true today?

Okay, back to key takaeaways…

• Average drug spend dropped 34% from 2012 to 2015 – Rx and DME combined amount to 8 percent of total spend of med payments at 24 months after inception
• Opioid spend dropped dramatically, while NSAIDs went up.
• Compared to all claims reported, Cumulative Trauma injuries have increased – a lot – since 2009. CWCI thoroughly debunked the contention by others that CT cases have decreased.
• IMR decisions continue to uphold UR determinations more than nine times out of ten, a rate that’s held steady since 2014.
• UR decisions on compounds are upheld in 99.2 percent of all cases.
• Work comp administrative expenses are higher in California than any other state – by a lot. Part of the answer is the outright abuse of the IMR process by a handful of scummy providers in SoCal…and a couple up north too.

Gary Franklin MD gave a compelling, passionate, and pointed argument that opioid manufacturers are at fault for the disaster that’s killed more than 200,000 of us. Gary never hesitates, never waivers, and is the individual who has done more than anyone else to confront the opioid issue.

More to come next week.

 

I still have a sports jacket I bought years ago because it was a great deal. It’s ugly and doesn’t fit right, but oh, what a deal. I keep it to remind myself that it’s not about the deal.

(I know, I can’t believe I spent money on this)

Most work comp buyers focus on the deal they get on medical expenses, paying little attention to the quality of care delivered, or what that care actually costs.

Reality is, most buyers measure their performance by how much they’ve “saved”, not how much they’ve spent – or what they got for their dollars.

Some, like Albertson’s, are focusing on what matters – quality. But most don’t, relying instead on “savings” reports that purport to show how many gazillions their vendors “saved” by not paying duplicate bills, slashing charges to fee schedule (!), applying state rules to bills, assessing relatedness and using clinical edits.

These buyers are saving themselves to death.

Instead of bill reductions, payers should be looking at medical cost per claim. Replace network penetration with physician performance evaluation, based on total outcomes. Stop looking at denied procedures and start identifying the providers who do a great job, send claimants to them, and leave them alone.

What is scary is that many in the industry think they are making progress. They are plodding deliberately along, reading bill review savings reports, studying, evaluating, debating, discussing, re-organizing, considering, meeting, presenting, recommending other ways to “save”.

They are mistaking activity for progress, when they should be focusing on what matters – measure and reward quality. 

So, you may want to ask yourself, would you buy medical care for your family the way you buy it for your employees or insureds?

What does this mean for you?

If you do want to dig into medical, here are a few ideas.

 

I’ve had a number of conversations of late with self-insured employers about their workers’ comp “savings” reports; one thing that keeps coming up is how- and why – vendors ‘game’ the numbers.

(this post is a follow up to a post I did seven years ago…)

Perhaps the greatest variation is in bill review “savings” – and the fees attached to those “savings”.

Bill review savings are reported as a percentage below the applicable fee schedule or, in states without fee schedules, usual and customary rates or billed charges (depending on the vendor and state). Savings are also attributed to application of state rules, for example a denial of an assistant surgeon’s fee or physical therapy 59 modifier. These savings don’t generate additional fees for the vendor as they arise from mere application of state regs and fees.

One would think this is an objective result, and therefore there should be little variation among and between vendors, and in an ideal world, one would be right.

However, there is almost always a bit of judgment involved in determining what the ‘right’ fee schedule amount is and what state rules apply. The complexities are many, and the justifications, while often thin, are given to payers unequipped to refute the vendor’s statements.

Then there is the gamesmanship where savings that should be attributed to fee schedule or application of state rules are put in a different bucket, a bucket that just happens to generate additional fees for the vendor.

Let’s look at the ‘why’ vendor BR savings vary.

Simply put, follow the money.

Most bill review services these days are priced on a flat charge per line or per bill; Most BR vendors also charge for additional ‘value-added’ services on a percentage of savings basis – typically 25% of savings delivered on top of fee schedule/UCR cuts. That’s where the…variation usually lies.

The financial motivation is obvious; the vendor gets the same fee for processing a bill whether they deliver $1 or $1000 in BR savings, but their compensation for ‘value-added’ services is based on the savings that are delivered – the higher the ‘savings’, the greater the fees for the vendor.

Therein lies one explanation – perhaps the most significant one – for the wide variation in BR savings percentages. In my consulting practice I’ve had access to reports from several of the larger BR vendors, and the variation can be as much as 300 percent from vendor to vendor. Yes, you read that right – one vendor’s bill review “savings” in a state can be three times higher than another’s.

Almost always the vendor with the lower FS savings delivers great results from ‘nurse review’, ‘complex bill review’, ‘coding edits’, ‘unbundling and upcoding review’, or whatever they call it – suffice it to say that the savings delivered from these ‘extra, value-added’ services – when added to the ‘standard’ bill review reductions – are usually only a bit higher than other vendors who don’t have all those extra, value-added add-ons.

That’s not to say that some savings can – and should – be derived from careful and professional review of bills – coding and clinical reviews are often helpful.

How can you protect yourself?

1. Ask competing vendors to reprice a set of bills and provide savings numbers in aggregate and for each bill. Compare reductions from application of FS and state rules from the vendors, and on individual bills.
2. Where there’s wide variation, ask the vendors for an explanation, and don’t accept mumbo jumbo BS.
3. Make very sure your vendor knows you are holding them to the same standard they used in repricing your sample bill.
4. Ask your colleagues if you can see their savings reports, and compare the savings allocations to your reports.
5. Ask your broker, consultant, or adviser for their views, and get them to share de-identified client savings reports with you.

What does this mean for you?

The bad actors are known to many – make very sure you know who they are.