Category Archives: Liability

ERISA, Stop Loss and Unintended Consequences

“The problems of the world cannot possibly be solved by skeptics or cynics whose horizons are limited by the obvious realities. We need men who can dream of things that never were.”

John F. Kennedy

“Some men see things as they are and say why. I dream things that never were and say why not.”

Robert F. Kennedy

“It is not because things are difficult that we do not dare, it is because we do not dare that things are difficult.”

Seneca

Those quotes were included at the top of my June 19, 2013 post, “Clearing the Air: My Defense of Implementing Medical Tourism into Workers’ Compensation” where I defended myself against the charge that I was offering “simplistic solutions” to medical travel and workers’ comp. In that post, and in “The Faith of My Conviction: Integrating Medical Tourism into Workers’ Compensation is Possible and is not a Pipe Dream” I acknowledge that is won’t be easy, but there are ways to do it.

In my last post, “Self-Insured Employers Fail To Adopt Medical Travel“, I discussed the reasons given by Irving Stackpole for why US employers have failed to adopt medical travel into their corporate health plans.

In conversations with a noted ERISA and medical travel expert, I have been making the case that laws and regulations such as ERISA, Stop Loss, and other “barriers” erected decades ago, in order to address specific problems such as tort claims, aggregate claim losses, etc., have the unintended consequence of holding back the globalization of health care, which includes workers’ comp.

I have addressed the legal barriers in comp in my White Paper, and found that there were outdated federal and state laws and regulations, intended to protect consumers, actually increase costs and reduce convenience, restrict public providers from outsourcing certain expensive medical procedures, and that federal laws inhibit collaboration, while state licensing laws prevent certain medical tasks being performed by providers in other countries.

Let me state here that I, in no way, am advocating the removal of these laws and regulations. My chief argument is this: our best minds have split atoms, launched satellites and men into space, discovered cures for diseases plaguing humans for centuries, but to send patients to other countries for medical care is impossible, and not worth pursuing, smacks of cowardice or fear that it actually might save money and provide better care. Do we not have the best minds to figure out how to deal with these “barriers”, or are we too fearful and litiginous a society that we have given up accepting new ideas?

Every industry is being affected by two powerful forces today: globalization and automation. With globalization, jobs, plants and other forms of capital are moving across borders. With automation, jobs that were once held by humans and considered very dangerous, are being done by robots, and soon other jobs will be done by artificial intelligence.

Neither force can be stopped, and how we address the consequences of these forces is what many minds are working on right now. But to say that one industry is going to draw a line in the sand and say, “NO” and stop globalization from happening is either insanity or a deliberate attempt to profit from the maintenance of the status quo that many along the supply chain of medical care services, both within the general health care space and workers’ comp have carved out for themselves.

When I was in college, I studied International Relations, and back then, globalization was a word very few outside of academia ever heard. There was an organization created in 1973 by David Rockefeller and Zbigniew Brzezinski called the Trilateral Commission. Its purpose was to foster better cooperation between the countries in North America, Western Europe and Japan (the Trilateral countries) and their multinational corporations. In the ensuing decades, the Commission expanded the membership to the rest of the world, and globalization became a household word.

Coincidence? I think not, since the heads of major US, Western European, and Japanese companies were members, and so were many politicians, including a former peanut farmer from Georgia and most of his top administration personnel. Other politicians after him also have been members, from both sides of the political spectrum.

Their chief goal is to allow capital, goods and jobs to cross national borders, or to eliminate them altogether, and I doubt they expected the health care industry to stand in their way. These are men who generally get what they want, and damn the consequences. We see this in the breakup of the European Union, which many of them advocated for years, just like they advocated for NAFTA, CAFTA, the TPP, and other trade deals, and don’t give a fig about the impact they have.

So, it is important to realize that the only real thing preventing medical travel is what unintended consequences have on the growth and development of the industry. This is where the industry needs to focus its attention, not on slick advertising, but on hard work and cooperation to overcome these “barriers”.


I am willing to work with any broker, carrier, or employer interested in saving money on expensive surgeries, and to provide the best care for their injured workers or their client’s employees.

Ask me any questions you may have on how to save money on expensive surgeries under workers’ comp.

I am also looking for a partner who shares my vision of global health care for injured workers.

I am also willing to work with any health care provider, medical tourism facilitator or facility to help you take advantage of a market segment treating workers injured on the job. Workers’ compensation is going through dramatic changes, and may one day be folded into general health care. Injured workers needing surgery for compensable injuries will need to seek alternatives that provide quality medical care at lower cost to their employers. Caribbean and Latin America region preferred.

Call me for more information, next steps, or connection strategies at (561) 738-0458 or (561) 603-1685, cell. Email me at: richard_krasner@hotmail.com.

Will accept invitations to speak or attend conferences.

Connect with me on LinkedIn, check out my website, FutureComp Consulting, and follow my blog at: richardkrasner.wordpress.com.

Transforming Workers’ Comp Blog is now viewed all over the world in over 250 countries and political entities. I have published nearly 300 articles, many of them re-published in newsletters and other blogs.

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Borderless Healthcare: A Model for the Future of Medical Care in Workers’ Comp

By now, many of you, my faithful, and not so faithful readers (and critics) have been aware of my strong interest and passion about implementing medical tourism into workers’ comp.

The critics have not silenced me, they have only made me more determined than ever to get the word out…MEDICAL CARE UNDER WORKERS’ COMP IN THE US WILL HAVE TO GLOBALIZE, OR ELSE IT WILL FAIL TO PROVIDE ADEQUATE CARE AT LOWER COST AND AT EQUAL OR BETTER QUALITY THAN WHAT IS RECEIVED CURRENTLY.

I capitalized the above because in the three plus years I have been writing this blog, it takes a bit of shouting to get heard in this world.

To make the point I just shouted, I participated yesterday in a webinar on Bloomberg BNA.com produced by Manatt, Phelps & Phillips, LLP/Manatt Jones Global Solutions.

For all of you political junkies out there, Charles Manatt was the Chairman of the Democratic Party from 1981 to 1985, in the first term of that has-been Hollywood actor the GOP shoved down our throats.

The webinar, “Healthcare without Borders: The Opportunities and Challenges of Medical Tourism”, was an almost ninety minute, four-part presentation given by two Managing Directors, a Partner, and a Medical Director of a Mexican hospital system.

The presenters were Jon Glaudemans, Managing Director of Manatt Health Solutions, Andrew Rudman, Managing Director of Manatt Jones Global Solutions, Linda Tiano, Partner with Manatt, Phelps & Phillips, LLP, and Dr. Alfonso Vargas Rodriguez, Medical Director of Hospitales H+.

While the focus of the middle of the presentation dealt with conducting medical tourism in Mexico, the information presented by Mr. Glaudermans was concerned about the trends in healthcare that are pointing to greater demand for medical tourism, and are elaborated in the following graphic:

Megatrends

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

Here are the key points from Mr. Glaudemans’ presentation slides:

  • Consumers pay more and make more care decision, using social
    media/apps to acquire price/network data.
  • Providers take risk for population/patient/product outcomes, requiring new care models and contracts
  • Care monitoring and delivery move out of traditional settings, shifting the locus of/focus on patient loyalty
  • Providers and payers consolidate to manage costs and enhance power, fighting for CM (care management) space
  • States become more active regulators and purchasers, creating marketplace mosaics and more “experiments”
  • Data on health status and effectiveness become widely available, changing practice and payment patterns
  • Bigger datasets yield insights, informing personalized care and challenging price-setting and patient privacy
  • Employers’ role continues to erode, while exchange plans sharpen focus on multi-year patient loyalty
  • Digital natives’ and baby boomers’ interests coalesce, forcing focus on new ‘late-life/end-of-life’ care models
  • Visibility into global pricing and care models improves, requiring providers to justify value and pricing
  • Social determinants accepted as major cost driver, leading to increased focus on service integration

Naturally, many of these megatrends will not pertain to workers’ comp, but given the fact that comp sometimes follows the lead of healthcare, it is not out of the realm of possibility that some of these trends will be felt in medical care for workers’ comp.

Andrew Rudman’s presentation focused on what medical tourism is, and why Mexico is an ideal medical tourism destination for Americans. The main thrust of his presentation is the proximity to the US, the flight times between major American cities and those Mexican medical tourism destinations he focused on in the discussion.

Mr. Rudman also provided a cost comparison chart between US and Mexican costs of certain medical procedures, which is shown below.

Cost comparison 2012

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP/PROMEXICO

Dr. Rodriquez discussed how Mexican doctors become certified in their sub-specialties and how they get re-certified once they are certified by their respective boards. In addition, he showed slides about the various hospitals in the Hospitales H+ system, and for our purposes here, outlined the price differential for certain orthopedic surgeries at the various hospitals in their system versus that of the US.

Ortho surgery prices

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP/Hospitales H+

Lastly, Linda Tiano covered the legal issues of medical tourism, and those of you who have been reading this blog for three years, know that my original paper covered some of these issues, and I raised them in my presentation in Reynosa, Mexico in November 2014.

Here are the key points Linda made regarding medical tourism benefits.

Medical Tourism Benefits

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

3rd Party Facilitator

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

Liability issues

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

HIPAA

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

State Regs

Source:  2016+Medical+Tourism+Deck.pdf Manatt, Phelps & Phillips, LLP

At the end, I asked the question, “do you see the possibility of implementing medical tourism into workers’ comp, and what are the legal issues with that?” Ms. Tiano mentioned the state-specific laws regarding workers’ comp, and said that the workers’ comp industry is way behind health care, to which I heartily agreed.

So you can see from this brief, but thorough review of the presentation, that medical tourism is a serious research area for many interested parties. Yet, you guys in work comp refuse to see, hear or speak about the truth of what is happening around you. So here is another picture for you.

hear-no-evil-see-no-evil-speak-no-evil

This is the workers’ comp industry on the subject of global health care and medical tourism…three deaf, dumb and blind monkeys clinging to the same old statutes, laws and regulations that haven’t changed since the days of Taft and Wilson.

So when are you going to catch up to the rest of the world, and to the globalization of health care? In the 23rd century? When are you going to admit to yourselves that automation, new technology, the Internet of Things, telemedicine, etc., are going to make you guys OBSOLETE… to borrow a term from “The Twilight Zone”.

I have a vision for the future of medical care in workers’ comp. What you have is the same old, same old, and expecting different results. That’s not only crazy, that is doing a disservice to the people workers’ comp is supposed to be for, the claimant.

But suit yourselves…the dinosaurs are waiting to greet you.

 

 

 

What Legalized Pot Will Cost Employers

Last May, I wrote a short piece, “California is Going to Pot“. It discussed the issue of whether medical marijuana will be allowed in workers’ comp.

Caroline McDonald, Senior Editor of the Risk Management Monitor and Risk Management magazine, wrote an article today about the cost to employers should more states legalize pot.

Ms. McDonald cited a White Paper from Quest Diagnostics that suggested that employers will face potentially costly litigation, as case law develops, and will face challenges to protect employees from injury and to comply with drug-free workplace requirements.

Quest reported that legalization has led to the production of pot-infused foods and gadgets, such as vape pens, and that these two modes of consumption will make it more difficult, if not impossible, to tell when employees are using on the job.

Ms. McDonald writes that as use of pot increases, so will injuries, accidents, mistakes, and illnesses, which will escalate the cost of the company’s liability, workers’ compensation, and health insurance.

She outlines five steps employers can take to protect themselves:

  1. Stay up-to-date with the changing legal landscape and adjust workplace policies accordingly.
  2. Remember that marijuana is still illegal under federal law.
  3. Join other employes to monitor state legislation and take action with legislators to ensure workplace protections are included in any marijuana laws.
  4. Educate your workforce about the danger it poses to children, families and the workplace.
  5. Challenge the notion that marijuana is medicine, or risk paying for it in your health insurance. No marijuana medicines being sold in states that legalized them have been approved by the FDA as pure, safe, or effective. Doctors cannot prescribe them and pharmacies cannot sell them.

Number five is not one that I would subscribe to, as I believe that it does help those with serious illnesses such as cancer and other rare and debilitating diseases.

So long as pot remains illegal under federal law, the FDA will not approve the use of it as a medicine, but that is what needs to change.

Yet, risk management personnel need to be mindful of the other steps, and generally, people who are using marijuana as medicine are not engaged in dangerous or harmful employment, to themselves or others. When you are that sick, working is one of the last things you are concerned with.

And advocates for legalized pot should be aware of the risks it poses not only on the workplace, but for the employee as well. Failing a drug test can get you denied work comp benefits, unemployment insurance, especially if they are terminated for cause being under the influence, and not to mention the legal hassles the employee will face.