Richard’s Note: This is excerpted from my White Paper, “Legal Barriers to Implementing International Medical Providers into Medical Provider Networks for Workers’ Compensation”. The full paper can be accessed here at: http://wp.me/p2QJfz-5c
Throughout the debate leading to the enactment of the 2010 Affordable Care Act (ACA), one area of health care has been relegated to the sidelines; the rising cost of workers’ compensation claims. One major factor for the increase of workers’ compensation claims costs is the rise of medical costs associated with those claims. The average medical cost per loss time claim in workers’ compensation in 2008 was $26,000, and medical losses in that year represented 58% of all total losses. Since 2008, the average medical cost has risen steadily, increasing at a moderate rate.
In the past twenty years, from 1991 to 2010, the average medical cost per lost-time claim has gone from $8,100 to $26,900. In 2001 it increased to $15,900, and by 2005 it had gone up to $21,300. Given this trajectory, medical costs for workers’ compensation will continue to rise, perhaps even reaching $50,000, if medical costs cannot be controlled. With all the workers’ compensation system calls for reform, one possible solution has yet to catch on; implementing international medical providers into workers’ compensation.
Implementing international medical providers into the U.S. workers’ compensation system sounds far-fetched; however, globalization is rapidly changing many industries around the world, and health care and workers’ compensation should not be an exception to that change.
Just as many legal barriers exist to doing business overseas, the implementation of international medical providers into U.S. workers’ compensation medical provider networks also presents many barriers. This Summary will attempt to examine a few legal and regulatory barriers currently preventing foreign medical providers from treating patients abroad for injuries resulting from work-related accidents.
Considerations of cost are one reason why patients go abroad for medical treatment. Patients also seek medical care abroad for the quality of care received at foreign hospitals. Fears of poor quality result from stereotypes regarding doctors and facilities in developing countries. The quality of care available at many of the common medical tourism destinations are comparable to that available to the average U.S. patient; also death rates and adverse outcomes for cardiac patients in Indian and Thai medical tourist hospitals are comparable to, and in some instances, lower than those at American hospitals.
Typically, the effectiveness and safety of health care services delivered to patient populations in the U.S. is how “quality of care” is measured. However, quality is generally difficult to measure or define. Also, comparing safety on a state or local level is practically impossible. Federal policy makes reporting adverse events at medical facilities voluntary, and few states require reports to be made public. Reports, where made, are usually incomplete as well.
Though all patients can benefit, medical tourism’s cost savings are more likely to benefit those with inadequate health insurance coverage. Lower-middle-class individuals, who typically have sufficient means to pay for reduced-price care out-of pocket, will benefit most from medical tourism. This is a point to bear in mind with regard to workers’ compensation, as many claimants are generally lower-middle-class.
Medical tourism disproportionately benefits uninsured or underinsured individuals, but they are not the only ones benefitting from cost savings from medical tourism. Self-insured employers and private insurance companies have begun integrating medical tourism into their policies. It is attractive to small businesses as well. Medical tourism is expanding as self-insured employers and insurance companies have integrated medical tourism into their policies.
One of the most obvious legal barriers to implementing medical tourism into workers’ compensation are the provisions of State workers’ compensation laws that establish who can provide medical care to injured workers. In four of the largest workers’ compensation states, California, Florida, New York and Texas, medical providers must be licensed by the state to practice medicine. Florida’s statutes have a provision to allow certain foreign-trained physicians to practice in the state, but do not mention treatment outside of the state.
On the other hand, two states, Oregon and Washington State, both have statutes or rules that allow workers to choose an attending doctor or physician in another country. Oregon’s labor code states, “…The worker also may choose an attending doctor or physician in another country or in any other state or territory or possession of the United States with the prior approval of the insurer or self-insured employer.”
The WA State Department of Labor and Industries has a page on their website that allows workers to find an attending practitioner in the U.S., Canada, Mexico and Other Countries. The webpage allows the worker to search for a U.S. physician by entering a zip code, miles, doctor or provider type, and specialty. Workers seeking physicians in Canada, Mexico and Other Countries, such as England, Germany, Honduras, New Zealand, the Philippines, Spain, Thailand and Ukraine are directed to .pdf files that list selected doctors and their specialties and contact information.
Among some of the other barriers to medical tourism is the result of entrenched interest groups wishing to avoid competition with low-cost providers. Also, outdated federal and state laws intended to protect consumers, but only increase costs and reduce convenience. Additionally, state and federal regulations restrict public providers from outsourcing certain expensive medical procedures. Federal laws inhibit collaboration and state licensing laws prevent certain medical tasks being performed by providers in other countries. Foreign physicians lack the authority to order tests, initiate therapies and to prescribe drugs that U.S. pharmacies are able to dispense.
Restrictions on the practice of medicine have been removed, and many still exist. Some laws, for example, make it illegal for a physician to consult with a patient online without an initial face-to-face meeting; it is illegal for a physician who is outside the state and who has examined the patient in person to continue treating via the Internet after the patient goes home; and it is illegal (in most states) for a physician outside that state to consult by phone with the patient residing in that state if the physician is not licensed to practice there.
Other barriers or potential barriers, which are extremely important ones, also exist that must be addressed before medical tourism is accepted for workers’ compensation. Issues regarding medical malpractice and liability laws overseas, patient privacy and medical record laws (including HIPAA), ERISA(not a factor in Work Comp) and the impact of PPACA have to be dealt with before medical tourism is a viable option not only for non-compensation patients, but for compensation patients as well.
An exhaustive case law search resulted in identifying three cases that support or refute the implementing of medical tourism into the workers’ compensation arena. However, these three cases do offer some insight into how courts might rule regarding the implementation of medical tourism in workers’ compensation.
In the first case, a Mexican resident, working in California as a laborer, fell from a ladder. The court ruled in his favor, and said employers are responsible for reasonable expense of treatment and medical-legal costs.
The next case, also in California, was a case of domestic medical tourism. An employee of a convalescence hospital slipped and sustained injuries to his back and right elbow. The court that the costs of attending an obesity clinic were reimbursable and that he was entitled to the cost of future medical treatment.
The last case was in Florida, and involved an undocumented Mexican worker. He had twelve surgeries to repair the fracture to his leg. He needed additional surgery, but never got the surgery in the US, as he returned to Mexico and did not have legal documents to return to the US. The court ruled that state law did not preclude the foreign physician’s treatment of the claimant in Mexico. They stated that Florida workers’ compensation law contemplates coverage for non-citizens. They cited cases that held that undocumented workers were entitled to workers’ compensation coverage in Florida. They also stated that Florida law indicates that an injured worker is not prohibited from moving from his pre-injury residence in the state, and receiving treatment outside of the state.
Research into the legal barriers to implementing medical tourism into workers’ compensation found nothing of any real substance that would prevent workers’ compensation cases from benefiting from medical tourism. We have seen that there still remain several legal barriers to the implementation of medical tourism into workers’ compensation. Various federal and state laws need to be changed, and the issues of medical malpractice and liability laws, patient privacy and medical record laws and HIPAA, as well as ERISA and the impact of PPACA must all be addressed. But it is my opinion that these barriers can and will be overcome, especially in light of case law that has broken down some of those barriers already for foreign workers. The cost savings that can be achieved and the quality of care that matches, and even surpasses that found in the U.S., is sufficient reason why medical tourism should be implemented.