Archive for June, 2016

Today’s must-read at Health Affairs Blog

Thursday, June 16th, 2016

ha-mastheadHWR

Get your health policy reading while it’s hot: Chris Fleming has posted A Pot Luck Health Wonk Review at Health Affairs Blog. The biweekly best of the health policy blogosphere usually includes many posts of interest – but this week’s edition seems particularly varied. Maybe because the health wonkers are going to take a bit of a summer hiatus – after this issue, we’ll only be up once a month in the summer, so get your fill of wonkery now.

If you are interested in health care news, then the Health Affairs Blog should be top of your reading list. It’s an adjunct of the prestigious Health Affairs, a  peer-reviewed journal of health policy thought and research. The blog regularly features commentary and analysis from noted health policy experts from a wide variety of perspectives, as well as regular Health Affairs contributors and staff. Health Affairs Blog has been cited in congressional testimony and by members of Congress. Media outlets that have cited the Blog include The New York Times, Washington Post, Forbes, National Journal, Reuters, and many others.

Please join us for a HWR Blab (video conversation / text chat), Health Wonk Review On Air With HealthBlawg Tuesday, 06/21/2016 at 1:00 pm ET for half an hour. You can watch from here or sign in to Twitter account to log in.

It’s Been A Bumpy Ride Since 1972

Tuesday, June 14th, 2016

In its report to President Nixon, the 1972 National Commission on State Workmen’s Compensation Laws, created by the Occupational Safety and Health Act of 1970, concluded that workers’ compensation laws and benefits were vastly disparate among the states. Benefits in one state might be generous, while across the nearest border they’d be parsimonious.

Although Commission members differed on some points, they unanimously agreed parity among the states was highly desirable. They also recognized that to achieve this goal federal preemption as well as federal minimum standards were impractical for two reasons. First, the federal government had not demonstrated it was capable of successfully undertaking such an effort and, second, entrenched vested interests would fight to the death to preserve the status quo (I wonder what the members would say about today’s vested interests’ clawhold on the system?).

Consequently, in its report, the Commission made 84 coverage and benefit recommendations to the states, 19 of which it termed “essential” in order to establish an adequate workers’ compensation law. In the thirty-year period between 1972 and 2002, the states adopted an average of 12.9 of the 19 recommendations, or about 67% of them. The nationwide workers’ compensation crisis of the late 1980s and early 1990s put the brakes on any movement to adopt more of the recommendations.

In the recent past, workers’ compensation reform has percolated again, only this time in the opposite direction. For example, the October, 2015, Propublica/National Public Radio series, echoing back 43 years to 1972, once again threw a stark light on the continuing lack of uniformity in state benefits. In a kind of circle-the-wagons, and if that doesn’t work, head-to-the-bunker reaction, the series was roundly and caustically criticized by members of the workers’ compensation industry. But, as John Adams said in his summation when courageously defending British soldiers following the Boston Massacre, “Facts are stubborn things.” And one, inescapable fact is that in terms of the generosity of workers’ compensation benefits, in 2016 it matters greatly in which state an injury occurs.

Then there’s opt-out. Given the complexity and bureaucracy of the workers’ compensation system, I certainly cannot blame employers for saying, “We want out.” However, if employers are allowed to create their own systems, what happens, as I’ve written before, “down the street, around the corner at Kenny’s Citgo when one of Kenny’s five employees is injured on the job?”

And now, in a little uphill blowback, the Florida Supreme Court has ruled it is unconstitutional to cut off temporary total disability benefits at 104 weeks to a worker who remains totally disabled and unable to work and has not reached maximum medical improvement. This harkens back to the 1972 Commission’s Recommendation 3.17, which said total disability payments should be paid for the duration of the disability without regard for dollar amount or time. It will be interesting indeed to see how Florida deals with this ruling. It is a serious setback for employers.

I have to admit a nationwide lack of uniform benefits makes no sense to me. I just don’t get it. The 1972 Commission also had a remedy for this. It recommended, “that compliance with these recommendations should be evaluated July 1, 1975, and, if necessary, Congress, with no further delay in the effective date, should guarantee compliance.” Well, that never happened did it?

So, where are we?

We’ve advanced some distance, but, as John Burton, the Chair of the 1972 Commission, suggests, if we continue to advance at this rate, the 19 essential recommendations will be law throughout the land sometime in the 23rd century.

As with everything else in business, this all comes down to money.

New Roundup: OT & work comp; Opioid death rates; Clash of work comp ad titans & more

Friday, June 10th, 2016

New Wage and OT Laws May Increase WC Premium
Roberto Ceniceros, Risk & Insurance
Between the adjusted pay structures resulting from the Department of Labor’s overtime rules and the looming state and federal efforts to increase minimum wage, employers – particularly small employers – may be looking at higher payrolls and increasing insurance expense and self-insured costs:

That would occur as minimum wage hikes directly increase the risk exposure. The greater exposure would follow from claims payers having to provide more indemnity benefits to match workers’ new earning capacity.
“It’s a genuine change in exposure because the injured worker now will have a higher benefit threshold in many cases when they are injured,” said Pamela F. Ferrandino, EVP and senior principal national casualty at Willis Towers Watson.
Sharon Brainard, executive managing director and national casualty practice leader at brokerage Beecher Carlson agreed.
“That obviously is going to have a direct impact,” Brainard said “It is going to increase the premiums and ultimate claims costs.”

Related:

What’s your state’s prescription opioid death rate?
Joe Paduda is skeptical of the frequent news reports alleging progress in the war on opioids and he has evidence to back it up. In this post, he offers a tool to check your state’s opioid death rate. For more specifically related to the impact on our industry, see his post: Opioids and Workers’ Comp – a quick update.

Florida Supreme Court Finds 104-Week Temporary Disability Benefits Cap Unconstitutional
Amy O’Connor, Claims Journal

The Florida Supreme Court has delivered another blow to Florida’s workers’ compensation system with a ruling today that the state’s statutory 104-week cap on temporary disability benefits is unconstitutional.

The Florida Supreme Court ruled 5-2 in favor of the of the plaintiffs in Bradley Westphal v. City of St. Petersburg (SC13-1930), saying cutting off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement is unconstitutional.

Clash of the workers’ comp titans, and the adman behind it
James M. Von Bergen, Philly.com
An interesting look at heated competition between PA creative agencies that vie for lucrative advertising from plaintiff attorney firms. The ads: billboards, TV spots and more aimed at injured workers.

We Don’t Know How Many Workers Are Injured At Slaughterhouses. Here’s Why
Grant Gerlock, NPR

A slaughterhouse is a safer place to work than it used to be, according to a new government report. But data gathered by federal regulators doesn’t likely capture all the risks faced by meat and poultry workers.
In an update to a 2005 report criticizing safety conditions for workers in the meat industry, the Government Accountability Office says injuries and illnesses are still common. From 2004 to 2013, 151 meat and poultry workers died from injuries sustained at work. The injury rate for meat workers is higher than the rest of the manufacturing industry.
But injuries in the meat industry are also likely to be underreported.

It’s time to establish accountability for job loss
In writing a recent report on Establishing Accountability to Reduce Job Loss After Injury or Illness commissioned by the US Department of Labor’s Office of Disability Employment Policy, Jennifer Christian came to an inescapable conclusion:

Almost immediately, it became obvious to me that in order to make a solid contribution to the on-going public dialogue about health outcomes, the paper would have to explore the meaty issues of explicit expectations, accountability, metrics, credible data, rewards for best practices, and incentives for both participation and performance.

Soon after that, the absurdity of discussing expectations and accountability for the healthcare system alone became obvious —because organizations in other sectors of society play a role in the SAW/RTW process, each of which has enough discretionary power to support or thwart it.

Thus, over time, the purpose of the paper shifted to answering this question: What has to happen in order to engage the professionals at the front-line — the ones who work directly with affected individuals and make discretionary decisions about how much effort to make and for what purpose — so they start making a real effort to help people stay employed?

Light duty assignments create risks – Return-to-work efforts require monitoring
Stephanie Goldberg, Business Insurance

A recent court ruling should motivate employers to ensure return-to-work programs include frequent check-ins with injured employees performing transitional jobs.
Affirming a decision by the Louisiana Office of Workers’ Compensation, a three-judge panel of the state’s 5th Circuit Court of Appeal last month ruled that an injured St. James Parish Schools teacher’s modified position was inappropriate considering work restrictions provided by her treating physician and duties that were not accurately stated in the job description.

New WCRI Studies Compare Outcomes of Injured Workers Across 15 States
WorkCompWire

The research, “Comparing Outcomes for Injured Workers,” is a product of an ongoing, multiyear effort by WCRI to collect and examine data on the outcomes of medical care achieved by injured workers in a growing number of states. There are 15 individual studies for the following states: Arkansas, Connecticut, Florida, Georgia, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, North Carolina, Pennsylvania, Tennessee, Virginia, and Wisconsin.

Quick Takes: More noteworthy news

Health & Safety

Check out a fresh Health Wonk Review at HealthBlawg

Thursday, June 2nd, 2016

David Harlow has posted Health Wonk Review Is Bustin’ Out All Over at HealthBlawg. It’s a packed issue – don’t miss out on what all the health wonks are opining about.

This is part of David’s month long Festschrift of the Blogosphere, in celebration of his blog’s 10th Blogiversary. Ten years is an eternity in blog years, so kudos to David for being a consistent health policy voice in the independent blog world – and a smart and influential one at that!

Please join us for a HWR Blab (video conversation / text chat), Health Wonk Review On Air With HealthBlawg Tuesday, 06/7/2016 at 1:00 pm ET for half an hour. You can watch from here or sign in to Twitter account to log in.

OSHA’s New Reporting Rule Raising Hackles

Wednesday, June 1st, 2016

OSHA recently released a final rule on injury reporting and electronic recordkeeping that is raising hackles in many quarters – if you aren’t aware of the rule, this post will get you up to speed and will present an overview of the controversy.

The rule requires that certain hazardous industries submit injury and illness data electronically, which will then be shared and publicly accessible online. In addition, the rule strengthens worker protections around reporting. Employers are obligated to inform employees of their reporting rights and must not deter or discourage injury reporting in any way, and may not retaliate against employees for reporting.

Here’s a copy of OSHA’s new rule, which was published on May 12, 2016. Here’s a brief summary excerpt:

OSHA is issuing a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulation. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep under existing OSHA regulations. The frequency and content of these establishment – specific submissions is set out in the final rule and is dependent on the size and industry of the employer. OSHA intends to post the data from these submissions on a publicly accessible Web site. OSHA does not intend to post any information on the Web site that could be used to identify individual employees.

The final rule also amends OSHA’s recordkeeping regulation to update requirements on how employers inform employees to report work-related injuries and illnesses to their employer. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The final rule also amends OSHA’s existing recordkeeping regulation to clarify the rights of employees and their representatives to access the injury and illness records.

Large employers (250+), unless exempt from reporting, are now required to submit data electronically. In addition, high hazard industries with 20-249 employees will also have electronic reporting obligations

Poster for informing employees of their rights

The electronic reporting requirements are in effect as of January 1, 2016. The employee notification and anti-retaliation provisions go into effect on August 10, 2016.

Proponents and opponents of the OSHA rule speak out

OSHA and labor proponents say that the new rule will modernize reporting and offer transparency that fosters safer workplaces.

Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Most labor unions are proponents of the new rule: Teamsters Applaud New OSHA Rule to Modernize Worker Injury & Illness Report System

The new rule will go a long way in correcting a widespread problem that saw many large employers routinely withholding these reports from their own workers, in violation of OSHA’s current mandate. This will especially help the many workers in non-union companies to get this important information without fear of retaliation by their own supervisors. With this rule, OSHA will move employers into a modern, electronic reporting system to promote accurate and broad public understanding of the dangers in today’s workplaces.

Opponents say that the public posting of injury data constitutes a “public shaming” and that data may be misunderstood or exploited by competitors and other parties. In addition, employers say that the previous recordkeeping process allowed revisions to injury and illness records, a process that may be unavailable now once reported. Some opponents also raise concerns about employee privacy, although OSHA says reported data will not be identifiable by employee.

The following are some initial reports of opponent concerns.

The Hill: OSHA to publicly disclose workplace injuries online

But the National Association of Manufacturers (NAM) accused the Labor Department of “publicly shaming” companies into compliance.

“This administration put a target on nearly every company and manufacturer in the United States,” NAM vice president Rosario Palmieri said in a statement.

“Manufacturers are supportive of regulations aimed at increasing transparency, and we pride ourselves on creating safe workplaces for the men and women who make things in America,” Palmieri said. “However, this regulation will lead to the unfair and unnecessary public shaming of these businesses. This is a misguided attempt at transparency that sacrifices employee and employer privacy.”

Business Insurance: RIMS sounds alarm on latest OSHA injury-reporting rules

Inaccurate safety ratings, reporting redundancies and cyber exposures will result from the new rule on electronic record-keeping of workplace injuries released by the U.S. Occupational Health and Safety Administration that takes effect Jan. 1, 2017, the agency said in a statement.

OSHA’s new rule requiring the publishing of employee injuries can increase litigation against an organization and can also be used against an organization by industry competitors, RIMS said in the release.

The organization is also concerned about the ambiguity of the cause of a workplace injury potentially creating misconceptions about an organization’s workplace safety, the statement said.

RIMS also listed OSHA’s web-based reporting application as an issue because of its additional cyber exposures.

Safety + Health: Critics of OSHA recordkeeping rule air concerns at House hearing

Critics of OSHA’s recently released recordkeeping rule, which would make worker injury and illness data public, voiced their concerns during a May 25 hearing convened by the House Workforce Protections Subcommittee.

The National Law Review: OSHA Electronic Recordkeeping Rule Creates Significant Reporting Requirements, Potential Enforcement Risks

This article summarizes the new rule and offers compliance recommendations for employers. It also raises employer concerns:

The implications of OSHA’s new reporting requirements are significant, as the new rule creates a number of concerns and challenges due to the public disclosure of employer safety data. For one, the OSHA recordkeeping process has always allowed a continuing opportunity to revise injury and illness records with new changes to the reported event. But once the injury and illness data is initially reported and disclosed, it may be difficult for employers to revise this public information. Additionally, the data may be misinterpreted or misrepresented by the media or competitors. Further, employee privacy is a concern. Although OSHA states that it will use software to remove private employee information from the disclosures before posting, the effectiveness of this software remains to be seen. Finally, the cost and resources necessary to implement electronic data collection and maintenance will be significant. OSHA’s financial estimates likely ignore the time and effort required to bring an employer into compliance, especially ones without any electronic collection procedures currently in place.

Construction Equipment: New Electronic OSHA Reporting Requirements Raise Serious Concerns

Before, employers could only be cited by OSHA for not having a workplace illness/injury procedure in place. Now OSHA can cite an employer if the company’s procedure is not ‘reasonable’ or discourages employees from reporting.

Before, OSHA had to wait for an employee to file a whistleblower retaliation claim to investigate the company. Now, OSHA can cite and fine employers directly and demand abatement for alleged retaliation against employees who report workplace injuries and illnesses.

Before, employer reports of injury/illness events were in an open chronological format that allowed updates and changes to the report as needed. Now, because the electronic report will be made public at the initial filing, it may be difficult for employers to revise the report at a later date. This means the first filing will stay on the Internet as it was written and later updates may or may not be easily found. This can lead to either accidental or willful misinterpreted of the information by anyone who has an Internet connection.

We doubt we’ve heard the end of this story so stay tuned.