“None so blind as those that will not see.” Matthew Henry (1662-1714)
“Every man takes the limits of his field of vision for the limits of the world” Arthur Schopenhauer
Last week, in my post, Why Medical Tourism for Workers’ Comp is an idea whose time has come, I mentioned that there are some people who believe that medical tourism in workers’ comp can’t happen under current state statutes. I agree with them, and that is why the title of today’s post is called “Statutes are not Statues”.
When workers’ compensation was first enacted one hundred years ago, it was conceived as a remedy for the lawsuits filed by injured workers. It was supposed to be a no-fault system whereby the employer would pay for the medical benefits and the loss of wages, and the employee would give up their right to sue the employer. But that has not always been the case. It has become more litigious than ever imagined by those who proposed the first workers’ compensation laws.
And yet, there are people who have made a fetish of some of the workers’ compensation statutes, in much the same way religious people have made a fetish of the Ten Commandments, which many have suggested should rightly be called “The Ten Suggestions”, because so many people have broken Commandments 6, 7, 8, 9, and 10. The workers’ comp statutes are regarded by these people as written in stone, sacred and inviable.
However, the statutes have been amended down through the years, and are not written in stone. Much of what the various state statutes in workers’ comp are concerned with has to do with how insurance companies conduct business in a particular state, how the state workers’ compensation system operates, as well as other necessary and important rules and regulations. Those statutes are not what I am referring to, and I have no quarrel with them at all.
The statutes I am referring to, and that these individuals claim prevents medical tourism from being implemented into workers’ compensation, pertain mostly to the medical care an injured worker receives, from whom they receive it, the licensing of the treating physician, and who gets to choose the treating doctor, as well as how far the treating doctor can be from the patient’s home. All of these issues I mentioned in previous posts or in my White Paper.
On page 15 of my White Paper, I stated the following with regard to the issue of licensing of physicians:
“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.”
It is logical and reasonable to have physicians licensed to practice medicine, as no one wants to be treated by someone who does not have a license to practice medicine. Do these statutes mean that a patient from one state cannot be treated by a physician in another state? Suppose an employee who lives in northeast Pennsylvania, south of the New York State line (Matamoras), is injured in New York where he works, does that mean that the physician who treated him Port Jervis and is licensed only in New York, cannot treat him? Supposed a patient goes to the Mayo Clinic in Minnesota, but lives in Arkansas, does that mean that the surgeon at the Mayo Clinic must be licensed in Arkansas as well as in Minnesota, or does reciprocity kick in? The statutes are not very clear on that, so again, how sacred and inviable are they?
In the paragraph that follows the one quoted above, I mentioned that Washington State and Oregon have statutes or rules that allow workers to choose an attending doctor or physician in another country. And 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.”
Washington State’s workers’ comp agency “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.” This is on page 16 of my White Paper.
So, here again, statutes are not statues, and not written in stone. And lastly, as discussed on page 28, I mentioned the Court of Appeal ruling in the Florida case, AMS Staff Leasing v. Arreola, where the court “ruled that state law did not preclude the foreign physician’s treatment of the claimant in Mexico…” The Court went on to say that “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.”
Knowing that Washington State, Oregon have statutes or rules allowing workers to go out of state, knowing that Florida law allows the worker to leave the country for care, and knowing that California companies are already providing workers’ comp benefits to injured workers in Mexico, it would seem that workers’ comp statutes can be flexible, if only there is a will to make them so.
Why that is not the case in all other states is the real question. I also addressed that in my White Paper on pages 16 and 17 when I said the following:
“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.”
In the above quote, there is reference to “entrenched interest groups”. One author I cited in my White Paper, Devon Herrick cited The American Society of Plastic Surgeons as coming out against medical tourism, and another author, Toro Longe cited Herrick’s citation in a Master’s thesis in Health Law. But there are other “entrenched interests” besides plastic surgeons.
Doctors who specialize in occupational medicine, hospitals, lawyers (both plaintiff and defense), workers’ compensation services providers, and state legislators who rely on campaign contributions from these interest groups also would be against medical tourism in workers’ comp, and therefore would be against changing any of the statutes that pertain to how an injured worker receives medical care and from whom.
However, if the workers’ compensation system is to survive the next one hundred years, given the globalization of the economy, the increase in foreign-born labor in the American workforce, and the globalization of health care in general, it would be prudent for the workers’ compensation system to become more open and flexible. That California, Florida, Oregon and Washington State have shown some flexibility in their laws and statutes; it may be possible that the other 46 states can do as well.
In order for that to happen, it may require some outside pressure in the form of employers, insurers, and the medical tourism industry itself to pry open the doors of the workers’ comp system to an alternative that can offer lower costs and better quality. It is certainly clear that as long as there are those who do not see, as long as there are people who take the limits of their field of vision for the limits of the world, this will not happen.
I am not making it my mission to do anything but opening up people’s eyes to other possibilities. But to dismiss it out of hand is to be blind and lacking vision. It may not happen today, it may not happen tomorrow, but it will happen someday. Nothing is immune to change, not even workers’ comp.