Legal Barriers to Implementing International Providers into Medical Provider Networks for Workers’ Compensation: A White Paper

Acknowledgment

This white paper would not have been possible without the inspiration, enthusiasm, encouragement, and guidance of Kristen E.B. Montez, Esq., the Director of Legal and Regulatory Services of Satori World Medical in San Diego, CA. It was Kristen who answered my call on LinkedIn.com for assistance with a topic to write for my Health Law class. Her knowledge and experience in the area of medical tourism as a published writer on the subject was not only very valuable, but also very much appreciated. Her desire to assist me in writing it, and in suggesting that I get it published, is something that I did not expect, nor imagined when I placed the online posting. She is a remarkable individual, and it is my pleasure to have connected and collaborated with her on this project. My thanks to her for putting up with my initial reservations, and my rather wordy writing style.

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This entry was posted in Legal Barriers, Medical Provider Networks, Medical Tourism, Workers' Compensation and tagged , , , , on by .

About Transforming Workers' Comp

Have worked in the Insurance and Risk Management industry for more than thirty years in New York, Florida and Texas in the Claims and Risk Management spheres, primarily in Workers’ Compensation Claims, Auto No-Fault and Property & Casualty Claims Administration and Claims Management. Have experience in Risk and Insurance Business Analysis, Risk Management Information Systems, and Insurance Data Processing and Data Management. Received my Master’s in Health Administration (MHA) degree from Florida Atlantic University in Boca Raton, Florida in December 2011. Received my Master of Arts (MA) degree in American History from New York University, and received my Bachelor of Arts (BA) degree in Liberal Arts (Political Science/History/Social Sciences) from SUNY Brockport. I have studied World History, Global Politics, and have a strong interest in the future of human civilization in all aspects; economic, political and social. I am looking for new opportunities that will utilize my previous experience and MHA degree. I am available for speaking engagements and am willing to travel. LinkedIn Profile: http://www.linkedin.com/in/richardkrasner Resume: https://www.box.com/s/z8rxcks6ix41m3ocvvep

11 thoughts on “Legal Barriers to Implementing International Providers into Medical Provider Networks for Workers’ Compensation: A White Paper

  1. richardkrasner Post author

    Dr. Nath,

    Those are not links. That is how WordPress converted my footnotes. If I had written this originally on WordPress, I would have put in my links. I may still do so over the weekend. Thanks for bringing it to my attention.

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  2. Taiwanstatus

    The biggest regulatory challenge is ACA and ERISA for HIX. Their COOP program might offer their self-insured programs a risk-group pool for SHOP. ACA subsidy and Bronze deductible waivers are the lure for using the IRS 501(c)(29) coop health program. But will the regulations allow waivers and medical tourism? Nathan Cortez suggests the ACA has no statutory barriers, but the regulations are unknown. Perhaps these could be challenged under the Administrative Procedures Act but don’t know.

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    1. richardkrasner Post author

      ERISA does not impact Work Comp, only health care. Do not know what COOP or SHOP is, so you will have to explain. There are barriers in state WC laws that are going to have to be removed before this can happen.

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      1. Taiwanstatus

        The COOP is the 501(c)(29) coop health care insurer under ACA for the state-controlled public option on exchanges. It will compete with private insurance for the Obamacare subsidies. This has small business programs under SHOP. If the self-insured programs could fall under SHOP to qualify for subsidies is undetermined. If HHS regulations will allow any overseas options is also unanswered, too. If not, then there are trade questions for the Mode 2 cross-border users and providers under GATS. There are WTO trade questions on public/private monopolies with designated providers. This cozy arrangement is trade protectionism, and WC or Obamacare exchanges are public monopolies with the private sector. If this creates an unreasonable trade barrier to foreign providers, then there are monopolistic characteristics. Obamacare creates a paradigm shift, and GATS will export that across our foreign borders under Mode 2 for both the consumer and providers. With Canadians coming down for care, the Canadian system might be the first to feel the impact from exchange fallout. See Health Tourism by David Reisman on page 22. Medical providers can already cross the 49th parallel for licensing (e.g. doctors), but medical providers might find the patient quota system under the Canadian Health Act is far too protectionist. Does the provincial public/private system create a trade barrier to foreign medical providers? British Columbia might find rationing is market protectionism, and Washington State providers are deterred from entering the Vancouver market. It is restrictive for consumers, too.

        Nobody is really discussing this and I wonder about the MTA marketing machine for WTO trade issues. Their clients are more savvy about the WTO than Americans, but they might not know if Mode 2 liberalization will impact their domestic programs. Obamacare is really a potential game changer when the US Trade Representative files a WTO trade complaint against these foreign markets. From British Columbia, the Mode 2 migrations will flow into Australia, Singapore, Hong Kong, and China. BC might be forced into a new version of “exchange programs” under GATS.
        WC is another area of related laws and precedents.

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      2. richardkrasner Post author

        How come no one in the US has heard of a COOP health care insurer for state-controlled public option on exchanges? There is not public option that I am aware of and I took an elective for my MHA degree on PPACA in the summer of 2011. You still did not explain what COOP stands for, or what SHOP stands for.

        The rest of what you are saying is foreign to me as I do not have a background in foreign trade, trade agreements, etc. It would be interesting to see how this all plays out, but again, my initial thought was to look at legal barriers in the US to implementing Workers’ Compensation into medical tourism, not to look at international trade agreements and the WTO.

        I really cannot answer you properly because I have no background in this. Sorry.

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      3. Taiwanstatus

        Consumer Operated & Oriented Plan (COOP)(state-controlled coops on exchanges)
        http://cciio.cms.gov/programs/coop/

        IRS 501(c)(29) cooperative healthcare insurance organization
        http://www.irs.gov/Charities-&-Non-Profits/New-Guidance-for-IRC-501(c)(29)-Qualified-Nonprofit-Health-Insurance-Issuers

        SHOP is the small biz component of health exchanges and COOP must have their offerings
        http://www.healthexchange.ca.gov/Documents/Small%20Employer%20(SHOP)%20Exchange%20Issues.pdf

        This is California regulatory guidance. The overseas coverage has not been discussed yet in the federal regulations. This would allow for expansions of self-insured programs with waived deductibles. SHOP would qualify for the Obamacare subsidy. This would be helpful for MTA-type facilitators.

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      4. richardkrasner Post author

        This cozy arrangement is trade protectionism, and WC or Obamacare exchanges are public monopolies with the private sector. If this creates an unreasonable trade barrier to foreign providers, then there are monopolistic characteristics.

        There is no Work Comp exchanges. Work Comp is a private insurance coverage in most states that is sold by commercial insurance companies. The exception to that is in OH, ND, WA and WY which are monopolistic states. This only applies to coverage, not to treatment or care, and if that was the case, then WA could not have a webpage listing doctors in foreign countries. You seem to conflate Workers’ Comp with Health Care and the two are not even closely similar.

        There are laws in many states that limit medical providers to those licensed in that particular state to practice medicine, but this is not a trade barrier.

        I met David Reisman at the MTA Congress, tried to email him to get a copy of his latest book, but he never responded to my email.

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      5. Taiwanstatus

        ACA is not Work Comp programs.

        Will monopolistic arrangements require market exchanges?

        If there was a state monopoly like the provincial system in British Columbia, then perhaps yes.
        You noted the four monopolistic state systems for work comp. This would mirror the BC health system as I understand it under Canada Health Act which is like ACA. Reisman suggests that Mode 2 cross-border providers and consumers would be impacted. Washington consumers might cross-borders into BC for a medical provider under Mode 2. The state monopolies might be trade protections because of public/private networks. The providers and consumers are impacted.

        The public monopolies are potential trade barriers in BC for health care and WA for work comp.
        The cross-border consumer and providers are subjected to these monopolies under Mode 2.
        These impede any medical tourism under the bilateral free trade agreements for Canada and America, and WA/BC could become a monopolistic trade barrier in work comp and health care.

        If WA adopted the Basic Health Plan in lieu of Health Exchanges, there might be a public/private monopoly for health care in this quasi-welfare system of low-income brackets. California has rejected this alternative under ACA. Medicaid should remain welfare and outside the domain of Mode 2. Even Medicare/Medicaid are shifting into the Obamacare exchanges systems. There are two waves of new paradigms from ACA and GATS that might open the closed doors for Mode 2 cross-border medical tourism. Then a free trade agreement is part of the architectural process of liberalization.

        If you cannot achieve medical tourism objectives with ACA, then use the backdoor of treaties.
        See Missouri v. Holland for the Treaty-Making Power and Interstate Commerce Clause for the impacts on cross-border migrations: http://en.wikipedia.org/wiki/Missouri_v._Holland

        California’s Knox-Keene Act has limited powers for the regulation of immigrants under Baja Access. It is limited to 50 miles of a port of entry under Chy Lung v. Freeman, and this is plenary power for state regulation of cross-border medical consumers under Mode 2.

        States are limited by federal powers of foreign commerce.

        The Foreign Commerce Clause created their plenary power doctrine and a monopoly over the regulation of ports of entry under Gibbons v Ogden. New York and New Jersey were interstate regulation of licenses for ferry operators (passengers and goods). The plenary powers have a potential impact on Mode 2 for licensing regimes that prevent doctors from telemedicine and the jurisdictional issues.

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      6. richardkrasner Post author

        I don’t know who you are or where you are from, but it is obvious to me that you do not understand the difference between the US Work Comp system and health insurance.

        I was a WC Claims Examiner and Claims Administrator in NY, and I also worked with WC Statistical Reporting to regulatory bureaus, so I know what I am talking about.

        You said will the monopolistic arrangements need exchanges? How can I make this more simple to you? The Monopolistic states are only for the purposes of Work Comp insurance. The exchanges under ACA have nothing to do with Work Comp.

        If there was a state monopoly like the provincial system in British Columbia, then perhaps yes. NO, THE MONOPOLY IS ONLY FOR THE SALE OF WORKERS COMPENSATION INSURANCE POLICIES AND THE REPORTING OF STATISTICS TO THE STATE AGENCY. CHOICE OF PHYSICIAN IS UP TO THE INJURED WORKER ,BUT IS GENERALLY LIMITED TO A DISTANCE FACTOR.

        You noted the four monopolistic state systems for work comp. This would mirror the BC health system as I understand it under Canada Health Act which is like ACA. Reisman suggests that Mode 2 cross-border providers and consumers would be impacted. Washington consumers might cross-borders into BC for a medical provider under Mode 2. The state monopolies might be trade protections because of public/private networks. The providers and consumers are impacted. I don’t know anything about the British Columbia system, so I can’t comment, but you still seem to equate health care with work comp The two are as different as night and day. If a state that is a monopolistic state for work comp has a governor or legislature that wants to set up an exchange under ACA, or wants the federal government to do it, then that has nothing to do with their work comp program. Do you understand that? The only thing that is monopolistic is the selling of work comp policies, not treatment providers. WA does allow injured workers to seek treatment in certain other countries, but the list is small.

        The public monopolies are potential trade barriers in BC for health care and WA for work comp. NO THEY ARE NOT!!!! CAN’T YOU UNDERSTAND THAT?
        The cross-border consumer and providers are subjected to these monopolies under Mode 2.
        These impede any medical tourism under the bilateral free trade agreements for Canada and America, and WA/BC could become a monopolistic trade barrier in work comp and health care.

        And as far as Dr. Reisman is concerned, I not only met him, I spoke to him for some time before he gave his presentation. He seemed to me to be a typical academic airhead who felt it was beneath him to talk to someone who was not his intellectual equal. He was not a very friendly sort of person, and his presentation was boring and dull with the worst slides I have ever seen. One of the courses I took for my MHA degree was a Graduate Business Communications course, and we were taught to produce PowerPoint slides that would convey our message in as short amount of text as possible and be graphically appealing. Dr. Reisman’s slides were anything but appealing.

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