Opting Out: Workers Compensation System Alternatives

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2 Opting Out: Workers Compensation System Alternatives Moderator Chris Mandel Sedgwick Inc. Christopher J. Flatt Marsh USA Inc. Trey Gillespie Insurers Association of America Bill Minick PartnerSource Tim Portale HCA Healthcare

3 What is Workers Compensation Opt-Out? Texas Model- WC not mandatory for private employers Oklahoma Model- Qualified employer must have benefit plan Tennessee Model- Hybrid of Texas/Oklahoma South Carolina Models- Texas bill and Oklahoma bill

4 What is Workers Compensation Opt-Out? Maine/Rhode Island/Georgia Model- alternative plan subject to state oversight that entitles worker to equal or greater benefits ERISA Model- welfare benefit plan exempt from state oversight in which employer controls coverage and benefit eligibility

5 What is Opt-Out? Workers Compensation Statutory entitlement to benefits ERISA Welfare Benefit Plans No statutory or contractual entitlement to benefits Entitlement based on employment status at time of injury Eligibility based on employment status at time of benefit

6 What is Opt-Out? Workers Compensation State mandates coverage for all workrelated injuries ERISA Welfare Benefit Plan Employer decides on which workrelated injuries to cover, if any State mandates terms and conditions for benefit entitlement Employer sets all terms and conditions for benefit eligibility

7 What is Opt-Out? Workers Compensation Lifetime entitlement to all reasonable and necessary medical care ERISA Welfare Benefit Plan Limited eligibility to covered medical expenses which may be terminated before treatment completed Medical decisions made by health care professional Medical decisions made by Plan Administrator

8 What is Opt-Out? Workers Compensation Settlements subject to state review and approval ERISA Welfare Benefit Plan Mandatory settlements based on Plan Administrator evaluation State provides independent dispute resolution Limited appeal rights/ federal preemption of state due process and equal protection

9 What is Opt-Out? Workers Compensation Exclusive remedy protection for employer No cost shifting to injured worker or taxpayers ERISA Welfare Benefit Plan Exclusive remedy/waiver Cost shifting to injured worker and taxpayers

10 Opt-Out Saves Money and Shifts Costs Limited coverage for on-the-job injuries, if any Death benefits for surviving spouse and dependents dramatically reduced (Texas)(Oklahoma?) Catastrophic injuries shifted to Social Security through Coordination of Benefits clause

11 Opt-Out Saves Money and Shifts Costs No payment of permanent disability benefits for most common permanent disabilities Elimination of lifetime medical exposure through plan limitations No requirement to protect the interests of CMS (taxpayers) Control over dispute resolution process

12 Present and Future Legal Challenges Jonnie Yvonne Vasquez vs. Dillard s Inc. (Oklahoma) Prohibited special law Equal Protection Clause Access to Courts Due Process? Violation of Grand Bargain? Water mirage on the highway Can state legislatures create dual workers compensation systems in which the employee rights are substantially different?

13 Present and Future Legal Challenges Department of Labor Investigation Possible violations of Employee Retirement Income Security Act Possible violations of Occupational Safety and Health Act Federal Government intervention to protect Social Security solvency?

14 WC and Options have the Same Primary Objective Improving the lives of injured workers.

15 Fewer disabled employees 30.0% 25.0% 20.0% 15.0% Percent of Claims with Lost Time (claims with more than 7 days of lost time) 25.0% Reduced 75% 10.0% 5.0% 6.1% 0.0% TX Workers Comp TX Option Source: Options to Workers Compensation: Positive Outcomes for Injured Workers and Employers, PartnerSource, January 2016

16 Faster return to work Increased 17% 83% 97% TX Workers Comp TX Option

17 Fewer Disputes 4.00% 3.47% Disputed Claims Reduced 28% 3.00% 2.50% 2.00% 1.00% 0.00% TX Workers Comp TX Option

18 Lower Total Employer Cost $18,00 0 $16,00 0 $14,00 0 $12,00 0 $10,00 0 $8,000 $6,000 $4,000 $2,000 $16,52 3 $7,729 $4,887 $3,917 $2,752 $2,801 $3,283 $0 TX WC TX Option Trucking & Distribution TX Option Manuf. TX Option Hospitality TX Option Healthcare TX Option Restaurant TX Option Retail

19 Core Principles: 1. Better Communication 2. Fiduciary Decision Making 3. More Employee and Medical Provider Accountability 4. More Competition

20 Better Communication Workers Compensation No pre-injury communication; employer largely removed from claims process Option Full explanation (SPD), disability benefits on normal payroll system, and ability to review and settle Impact: Employee accountability and appreciation, improved service, and fewer disputes

21 Fiduciary Decision Making Workers Compensation No. Focus = cost containment Option Yes. Focus = best interest of employee (or risk personal liability) Impact: Less regulatory involvement, more efficient court process, and lower taxpayer expense

22 More Employee and Medical Provider Accountability Example: Accident Reporting * subject to good cause exception Workers Compensation Option Within 30+ days * Within 1 (or up to 3) days * Impact: Faster care, timely investigation, valid drug/alcohol testing, and faster correction of unsafe condition for co-workers

23 More Employee and Medical Provider Accountability Example: First Medical Treatment Workers Compensation Option Within 1 year * Within 30 days * Impact: Reducing delays in diagnosis and treatment leads to better medical outcomes

24 More Employee and Medical Provider Accountability Example: Time limit between Medical Appointments Workers Compensation Option 1 year * 90 days * Impact: More persistency of medical care

25 More Employee and Medical Provider Accountability Example: Choice of Medical Provider Workers Compensation Employee picks from list of providers willing to accept workers compensation claims Option Employee is directed to best provider (who may or may not accept workers comp claims) Impact: Expanded provider access and employee not forced to guess or seek attorney input

26 More Employee and Medical Provider Accountability Example: Require comprehensive medical history/physical exam and review of current/past diagnostic tests/imaging Workers Compensation No Option Yes Impact: Focus more on evidence-based medicine and less on employee self-reporting and physician speculation

27 More Employee and Medical Provider Accountability Example: Following Treatment Instructions Workers Compensation Optional, with low standard to rebut physician opinion Option Mandatory, with more weight on physician opinion Impact: Follow physician s medical advice or benefits cease

28 More Competition Workers Compensation Competition solely on price Option Competition on price and coverage (subject to state benefit mandates) Impact: Innovation creates employer choice; lowest price for the broadest coverage

29 Primary Objective Improving the lives of injured workers. Do this well, and all other objectives fall in line.

30 Moderator Chris Mandel Christopher J. Flatt Trey Gillespie Bill Minick Tim Portale

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