Tag Archives: Disability

Demand for Bundling of Workers’ Comp and Health Insurance Increases

An article last Wednesday in Healthcare Finance News, by Anthony Brino, a Contributing Editor to Healthcare Finance News and the Editor of Healthcare Payer News, said that demand is increasing for the bundling of workers’ compensation and health insurance.

According to Brino, as more employers are seeking to integrate workers’ comp into their benefit packages, a range of market trends and regulations may be responsible for slowing what could be a natural fit.

However, according to Derek Jones, an actuary with Milliman, more Americans getting insurance should actually mean a healthier workforce, and therefore fewer workers’ comp claims. Jones said that what is more significant is the potential shift of costs between the workers’ comp and health insurance markets.

The article states that the new expanded availability of health insurance could shift payments for injuries and illness otherwise covered by work comp to health plans. Yet, as Jones is quoted in the article, “To the extent any of these claims are larger, there may be a significant cost shift from workers’ compensation to healthcare”.

Brino then says that treatments typically covered by health plans may end up being covered by workers’ comp. This development has not gone unnoticed by members of the workers’ comp industry in the run-up to the passage and subsequent enactment of the Affordable Care Act (ACA). Many of them have predicted cost shifting will occur from health care to workers’ comp.

While finishing my MHA degree in 2011, I took an elective course on the PPACA, and the term paper I wrote for this course concerned the impact of the ACA on workers’ compensation. I found at the time that there were three types of impacts in the literature of the time. The first was Direct, the second was Indirect, and the third was Speculative.

While I did not specifically address the issue of cost shifting, I would have to classify this as a speculative impact, as we shall see, and as Brino’s article mentions.

And according to Steve Kokulak, a senior vice president of workers’ compensation and no-fault insurance at MagnaCare, and a long-time connection of mine on LinkedIn, “You’re going to see changes in both directions, and it’s probably too early to tell at this point.”

A bigger issue, Kokulak states, is the fact that more employers would like to have their workers’ comp, health and disability insurance benefits more integrated. Kokulak also stated that MagnaCare has seen an interest from both employers and their health plans “for a total product combining health, workers’ comp and disability.”

A major barrier to offering an integrated product, according to Brino, is not that large insurers need to acquire workers’ comp companies, but that the patchwork quilt of state laws that in many places prevent the use of narrow provider networks.

This has been a part and parcel of not only my White Paper, but of my entire blogging experience to date. I said so in my blog article, Of ‘Aged Statutes and Old Case Law’ — Why Workers’ Comp Must Change and in my article, Statutes are not Statues ― Why Workers’ Comp Must Open up and Be Flexible.

Many states, Brino writes, regulate whether carriers and employers can offer direct care for injured workers and have mandated workers’ comp fee schedules. Yet, the “biggest impediment” to the kind of integrated insurance some employers are seeking is “a matter of bringing a product to the marketplace and making sure it’s compliant with state workers’ compensation rules.”

Or better yet, state workers’ comp rules need to be brought into the 21st century, and not bound by what transpired last century. There also needs to be a release of the stranglehold that lawyers, doctors, and workers’ comp services providers have on the workers’ comp system, another point I have raised time and again in my articles.

Kokulak said that it might be possible to move this piece of the group market in Oklahoma and Texas, which have let employers opt-out of state-workers’ compensation programs, as well as 10 other states that allow dispute resolutions with unions as an alternative to state workers’ compensation programs.

It would be far more simple, Kokulak said, for self-insured employers, such as municipalities, large corporations and union-based employers. “It is just a matter of creating a program that would be legally compliant, and finding service partners, the TPAs and PPO networks,” Kokulak went on to say.

Finally, an open question for integrating health, disability and workers’ compensation, Kokulak said, is whether health plans are open to covering possible cost-shifting. “Will a health carrier be willing to absolve the cost of the additional two to five percent in claims, and how much would they raise the premiums?”

I am confident that some way or another, injured workers will be able to get medical care abroad through the medical tourism industry, if their employers, their insurance carriers, and others make it possible for them to do so. The naysayers who have attacked my idea as “ridiculous and a non-starter” have not been vindicated by Brino’s article. Rather, it is I who have been vindicated here, as some of the things he mentions, I have already discussed in past articles, and most specifically, rather strongly.

No one knows what the future of health care, let alone health insurance will look like, or where some people will get their medical care. There may be, like the current marketplace, many options out there, medical tourism being one of them. And if integration in some form is achieved, medical tourism would stand to gain significantly from that integration, and it will not matter how the payment is made, as long as the patient gets the best care possible at the lowest cost possible.

The only other impediment is what is between most people’s ears. My advice to them after reading this article is this: Be careful for what you DON’T wish for, you just might get that instead.

Court Rules Obesity a Disability: What It Means for Medical Tourism and Workers’ Compensation

The Wall Street Journal reported yesterday that a Federal district court had ruled last week that obesity, by itself, may be a disability, separate from an underlying physiological condition. This confirmed an earlier article in the Wall Street Journal last month that discussed the rising risk of lawsuits on grounds of obesity discrimination.

In an article written by Gregory J. Millman, a senior columnist for Risk & Compliance Journal, and the author of last month’s article, Judge Stephen N. Limbaugh, Jr. (wonder if he’s related to you-know-who), a judge in the U.S. District Court, plaintiff Joseph Whittaker sued his employer on the grounds that his employer had “terminated his employment because of his disability and in retaliation for the charge of discrimination, threatened to terminate business with other entities if those entities employ plaintiff.”

Attorneys for the employer moved to dismiss the case, citing that obesity was not a disability under the Americans with Disabilities ACT (ADA), and they cited language from the Equal Employment Opportunity Commission (EEOC), that “except in rare circumstances, obesity is not considered a disabling impairment.”

Judge Limbaugh rejected that argument, and noted that it rested on case law that applied before the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which “rejected the unduly restrictive approach” to determining whether a plaintiff suffered from a disability. Judge Limbaugh also pointed out that the EEOC’s language had been “omitted following the ADAAA.”

The case is still in litigation, but an attorney who represents employers in labor and employment cases said that “I think we will see a lot more cases like this over the next few years.” The attorney also said “that employers should probably assume that obesity, at least severe obesity, constitutes a disability regardless of whether there is an underlying physiological condition involved, and seek a reasonable accommodation if the disability interferes with job performance.”

Corporate Wellness is one of the hottest areas of health care today, given the alarming increase in obesity among the American population. Related diseases such as High Blood Pressure, Diabetes, and Kidney Disease are something all employers need to address if some of their employees are obese.

This case, and many others like it, would suggest that rather than terminating an obese employee, employers would be better served if they kept the employee working and tried to get them appropriate medical care from a corporate wellness program. This would have a tremendous effect on the company’s health care costs, and on the employee’s self-esteem, knowing that his or her employer is looking out for their health, rather than firing them for having a disability.

In my White Paper, I discussed a case in California, in which an obese employee of a convalescent home, who fell while working as a cook, went to the Duke University clinic to lose weight. A friend had suggested he go there after his doctor and two of the employer’s doctors recommended that he lose weight. But as the employer did not direct the employee to a specific weight-loss program, the employee was free to choose he wanted to go. The Supreme Court of CA ruled in favor of the employee. (For a discussion on choice of medical provider see my posts, Employee vs Employer Choice of Physician: How best to Incorporate Medical Tourism into Workers’ Compensation  and Employee vs. Employer Choice of Physician Revisited: Additional Commentary on How Best to Incorporate Medical Tourism into Workers’ Compensation).

What does this mean for Medical Tourism?

The case in Missouri described in Gregory Millman’s article, and many others that will undoubtedly follow, presents a great opportunity for the medical tourism to capitalize on the corporate wellness programs employers might consider offering their obese employees as an alternative to expensive lawsuits stemming from wrongful termination because of a disability.

This was apparent to me when I attended the Medical Tourism Association’s 5th World Medical Tourism & Global Healthcare Congress in October of 2012. Executives from American Express and Google conducted a fireside chat on the topic of innovations in global benefits and employee wellness. Other companies such as Colgate-Palmolive, Cigna, and Disney made presentations there.

Weight-loss surgeries such as gastric bypass surgery and gastric sleeve surgery are areas where medical tourism can be of tremendous value to employers with obese employees. If those employees are part of a corporate wellness program, and have been unsuccessful in losing weight through diet and exercise, may be willing to undergo surgery to lose weight.

Ruling obesity a disability will mean more of these surgeries will be performed, and with more Americans getting health care through the ACA, medical tourism destinations will be one way in which those surgeries can be obtained by employers willing to pay for their employees to have surgery. The lower cost and higher quality of care in many destinations in the Western Hemisphere region will be a further enticement to employers looking to retain these employees and avoiding lawsuits over discrimination.

What this means for Workers’ Compensation?

That a Federal judge has made a preliminary ruling in a case of employment discrimination will have serious repercussions for the workers’ compensation industry, because if this case decides that obesity is a disability, many obese workers’ compensation claimants will file claims for workers’ compensation benefits citing their work environment as a contributing cause of their obesity. That would add significant costs to the initial claim, whether from a slip and fall or some other cause of injury.

While this may take many years to work its way through the courts and through workers’ compensation boards and other entities, employers would be wise to be proactive and incorporate a wellness program in their companies, so that obese employees can lose weight through diet and exercise, or baring that course of action, get surgery to lose the weight. Workers’ compensation carriers should also consider corporate wellness as a means to prevent workers’ compensation claims from expanding beyond the initial cause of injury,

The same constraints to getting surgery mentioned above would also apply to workers’ compensation claims, if obesity is considered a compensable medical condition. Anyone worried about what effect obesity as a disability will have on workers’ compensation claims, should be willing to consider alternatives to long, drawn-out lawsuits, workers’ compensation hearings and court cases, and charges of wrongful termination because of obesity. Medical tourism could be a viable option.

Questions, Questions — How Medical Tourism Can Become a Real Alternative in Health Care and What it Means for Workers’ Compensation

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You may have noticed that I changed the name of my blog recently to Transforming Workers’ Comp.  I did this because I wanted to show how serious I am about changing the way workers’ compensation is conducted in the US and to prove that implementing medical tourism into workers’ compensation is not an academic exercise from an author without the credentials to support his ideas.

Today’s post has two parts to it. The first part deals with the fact that the medical tourism industry has yet to sufficiently answer certain questions regarding how the issues of legal liability and medical malpractice are to handled, and which forums, American or foreign, are the proper forums in which to bring lawsuits, in case patients are wrongfully injured by foreign medical providers.

Who is liable for damages and how that liability is resolved between the patient’s home country’s laws and the laws of the destination country needs to be answered, as does who will pay when a medical provider causes harm to a patient. For most doctors in the US, medical malpractice insurance, which is incredibly expensive and has driven many physicians out of medicine, covers medical mistakes. But how these mistakes are dealt with when a patient seeks care in another country is vital, not only for health care patients, but for workers’ compensation patients as well.

This is something that I mentioned in my blog post last year, Legal Barriers to Implementing International Providers into Medical Provider Networks for Workers’ Compensation: A White Paper, when I said the following:

Medical malpractice and liability laws

One major criticism of medical tourism is the lack of legal remedy for patients claiming injury from medical malpractice.[91] Medical malpractice and liability laws in foreign countries are not as strict as laws in the U.S.[92] Awards for malpractice are generally not as generous either as those in the U.S.[93] Physicians overseas do not typically have the same amount of malpractice insurance as their American counterparts.[94] And the threshold for determining malpractice is higher outside the U.S.[95] Limited recourse through the court systems of many countries is a problem, and the right to sue may not exist for injured patients.[96] In India, even though the court system is similar to that in the U.S., medical malpractice awards are rare and never reach the multi-million dollar amount common in U.S. court systems.[97]

Before recognizing a suit, an American court must have personal jurisdiction over a foreign provider.[98] The issue of personal jurisdiction over the foreign provider is a difficult burden for anyone initiating a suit.[99] U.S. courts are reluctant to assert personal jurisdiction over physicians who are not residents of the U.S. and do not practice in the forum state.[100] Minimum contacts sufficient to exercise personal jurisdiction could be difficult to establish over a physician who performed a harmful procedure outside of the forum state.[101] If a U.S. court does find evidence to support personal jurisdiction, the case could be dismissed on the grounds of forum no conveniens (not suitable to the forum).[102] If the case is not dismissed, then choice of law conflicts arises.[103],[104] If a court recognizes a valid claim against a defendant, it is likely the defendant will be successful challenging the location of the suit.[105] Most jurisdictions would apply the laws of the country where the malpractice occurred, decreasing the likelihood of a finding of malpractice, and a reduction of damages.[106]

These questions may not be much of an issue for individuals contemplating or actually pursuing medical tourism as an alternative to expensive or unavailable medical care. But for employee benefit managers, corporate risk managers, corporate financial officers and top executives, as well as insurance company and third-party administration personnel responsible for the handling of claims and the medical issues involved with these claims, it does matter a great deal and will need to be resolved before medical tourism expands its market into workers’ compensation.

But there are other questions, more pertinent to the implementation of medical tourism into workers’ compensation that involve the issue of impairment, which maybe something that medical tourism providers are not knowledgeable about, since health care in the US is not as regulated as the American workers’ compensation system is, and foreign physicians who have not practiced in the US may not have experience with patients who were injured on the job, or are familiar with state workers’ compensation regulations and rules pertaining to impairment.

So my purpose here is to explain to the medical tourism industry what is involved with impairment in workers´ compensation so that medical tourism physicians will be able to deal with this issue as more Americans go abroad for health care, and especially if their employers pay for them to do so, as one company in the southern US is already doing and when the injuries being treated are work-related. Once physicians are aware of how impairment is covered under workers’ compensation.

Impairment is defined in an article by Rebecca Shafer, J.D. as a problem in the function of a body part. It can be either temporary or permanent. When it is temporary, the employee is unable to work while recovering from the injury. When the impairment is permanent, the employee retains a residual of the injury after the medical treatment has ended. A permanent impairment’s impact on the employee’s life can range from a very mild impact to a life altering impact.

According to Rebecca, impairment in a workers’ compensation claim can be further defined this way:

      1. An inability of the employee to use his musculoskeletal system — his limbs, joints, muscles, bones, tendons and ligaments at the level prior to the injury, or
      2. An inability of the employee to control his/her neurological functions — the brain, spinal cord, and peripheral nerves at the level prior to the injury.

Dr. Nachman Brautbar, in an article on Environmental Diseases.com, explains that in evaluating the individual, “the physician should use clinical judgment regarding normal structure and freedom and estimate what is normal for the individual based on the physician’s knowledge or estimate of the individual’s pre-injury or pre-illness condition.”

Eight states have set up state specific disability ratings for injured workers, according to Rebbeca. These ratings are, according to Dr. Brautbar, developed by medical specialists …that reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (ADL), excluding work. These ratings are expressed as percentages of impairment, for example, from 10% – 18% impairment. Forty-two states use the AMA Guides to the Evaluation of Permanent Impairment.

But whichever guide is used, if the treatment plan includes surgery of any kind, the surgeon must take into consideration what level of impairment the patent will have post-surgery. For patients suffering work-related injuries this is very important because the outcome of the surgery will determine their final impairment rating, and thus the amount of benefits they will receive after recovery.

However, for patients undergoing surgery for injuries not sustained on the job, such ratings are not important, and for the medical tourism provider, it is also not a factor in the final outcome of the surgery. The patient is seeking medical care abroad because it is too expensive at home, unavailable at home, or is experimental. And because most physicians in the US who treat injured workers are utilizing evidence-based medicine, the American medical community will only treat patients with certain treatments like spinal fusion for back injuries, whereas physicians in countries like India are performing disk replacement surgery, which allows the patient more mobility than fusing.

Finally, there is one more definition of impairment that has not been mentioned; that of Maximum (Maximal) Medical Improvement, or MMI. MMI occurs when an injured employee reaches a state where his or her condition cannot be improved any further or when a treatment plateau in a person’s healing process is reached. It can mean that the patient has fully recovered from the injury or that the patient’s medical condition has stabilized to the point that no major medical or emotional change can be expected in the injured workers’ condition. At that point, no further healing or improvement is deemed possible and this occurs despite continuing medical treatment or rehabilitative programs the injured worker partakes in.

Then a determination is made as to the amount of future compensation the employee will receive, based upon the following categories of disability:

  1. Temporary total disability (TTD)
  2. Temporary partial disability (TPD)
  3. Permanent partial disability (PPD), and
  4. Permanent total disability (PTD)

If an employee fully recovers from the injury, then he returns to work and the TTD ends, according to Rebecca.

So it would seem that before medical tourism can be implemented into workers’ compensation, these and many other questions and issues must be understood, addressed and satisfactorily dealt with. By doing so, the globalization of health care that is medical tourism will be able to handle all facets of medical care, not just those that involve cosmetic surgery, weight-loss surgery, heart disease, cancer, fertility and a host of other new medical treatments and procedures, but workers’ compensation injuries as well.

Since I began my blog, I have heard from a small number of professionals in the medical tourism industry. Some have commented on my writing, others have invited me to connect with them on LinkedIn and even work with them, believing that I have a medical tourism business and can provide them with patients. And still others have ‘liked’ my articles, but do not comment.

So here and now, I would like all of you who have commented, invited me to connect, and who have “liked” my articles to help me answer these and other questions that have been raised throughout my articles. It would a tremendous way for all of us to learn just how medical tourism can change the lives of millions of people who otherwise would receive less than adequate health care at home. It would also allow those who are interested in expanding the reach of medical tourism into a market that so far has resisted the benefits of medical tourism.

Once that is accomplished, American employers will be more comfortable with the idea of paying for employees to leave the country to get treatments that will change their lives, as I know the company in the southern US has already learned. And, the employee will be compensated for traveling abroad from the savings the employer will realize. That too is a question that needs to be answered, but that is a discussion for another time.

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Richard