Federal Bills Would Impact Texas Nonsubscription Plans

Federal Bills Would Impact Texas Nonsubscription Plans

Two bills in the U.S. Congress would adversely impact the use of discretionary clauses and arbitration in employer-provided benefit plans created under the Employee Retirement Income Security Act (ERISA). TAN members are encouraged to contact their congressional representatives to voice their concerns.

HR 7780 was originally filed to increase access to mental and behavioral health care, particularly among the country’s youth, but unnecessary provisions were added to limit arbitration and prohibit discretionary clauses in employer-sponsored benefit plans under ERISA. While TAN members support expanding access to mental health coverage, the addition of these unrelated clauses are problematic and require action from nonsubscribers.

Limiting arbitration will remove an option in an employment context that is often cheaper for both employees and employers. Eliminating discretionary clauses would undo ERISA’s administration process and add time and expense to resolving claims for injury benefits.

The measure passed the House on Sept. 29, 2022, and has been referred to the Committee on Health, Education, Labor and Pension in the Senate, where it awaits action. TAN members should contact both Sen. John Cornyn and Sen. Ted Cruz to voice their opposition to these clauses in the bill. To send a message to the senators, you may visit:

https://www.cornyn.senate.gov/node/5853 to message Sen. John Cornyn
Phone: 202-224-2934

https://www.cruz.senate.gov/contact/write-ted to message Sen. Ted Cruz
Phone: 202-224-5922

Similar provisions on discretionary clauses and arbitration were included in a second bill, HR 7740 (in the House) and S 4219 (in the Senate), but to date, both measures have only been referred to committee with no action taken. TAN members are still encouraged to contact both Texas senators and their respective members of the U.S. Congress to voice opposition to the bill.

You may visit https://www.congress.gov/members/find-your-member to identify your representative.

For more information on what you and your company can do to express your opposition to these bills, you may contact TAN’s government relations team: Lucinda Saxon (lucinda@texasstaralliance.com) or Karen Reagan (karen@texasstaralliance.com).

NCCI Reports on Top Workers’ Comp Legislation Among States

COVID-19, mental health and medical cost containment were among the top workers’ compensation issues states across the nation grappled with during 2022, according to a report from the National Council on Compensation Insurance.

As of July 31, 2022, NCCI tracked 844 state and federal bills. As of July 31, 98 bills had been enacted. NCCI also monitored 243 proposed workers’ compensation-related regulations and, as of July 31, 95 of those proposed regulations were adopted.

According to the report, medical cost containment was the top theme of the regulations adopted, including medical fee schedules and treatment guidelines. Several other adopted regulations addressed claims reporting requirements, surcharges and assessments.

NCCI tracked more than 118 bills related to COVID-19 and insurance this year. According to the report, 18 states established COVID-19 presumptions through legislation, directives, emergency rules and/or executive orders during 2020 and 2021. Most of these presumptions contained expiration dates or sunset provisions tied to the end of the state of emergency or another specified date. This year, several of those states considered legislation to extend the expiration date of the presumption and/or expand the COVID-19 presumption to additional categories of workers.

NCCI monitored 61 bills addressing workers’ compensation for workplace-related mental injuries, including more than 40 bills related to post-traumatic stress disorder. Colorado, Florida, Maine and New Hampshire enacted workers’ compensation mental injury-related legislation in 2022. Legislation is pending in New York.

Several other states considered, but did not pass, bills that would have established workers’ compensation coverage for PTSD, expanded coverage to additional types of employees, or created a presumption of compensability for PTSD.

NCCI has compiled the annual report for 10 years. This year’s report is available here.

OSHA’s Top 10 Safety Violations for 2022 Announced

Failure to provide adequate fall protection remains the safety violation most often cited by the U.S. Occupational Safety and Health Administration (OSHA). According to preliminary data from OSHA, the agency issued 5,260 fall protection citations during fiscal year 2022, which ended Sept. 30. It is the 12th year in a row that inadequate fall protection was the most frequently cited violation.

According to OSHA data, the top 10 most frequently cited workplace safety standards for FY 2022 were the following:

  • Fall Protection — General Requirements (1926.501): 5,260 violations
  • Hazard Communication (1910.1200): 2,424
  • Respiratory Protection (1910.134): 2,185
  • Ladders (1926.1053): 2,143
  • Scaffolding (1926.451): 2,058
  • Lockout/Tagout (1910.147): 1,977
  • Powered Industrial Trucks (1910.178): 1,749
  • Fall Protection — Training Requirements (1926.503): 1,556
  • Personal Protective and Lifesaving Equipment — Eye and Face Protection (1926.102): 1,401
  • Machine Guarding (1910.212): 1,370

OSHA Tightens Rules for Severe Violator Enforcement Program

The U.S. Occupation Health and Safety Administration (OSHA) has expanded its criteria for placing organizations in its Severe Violator Enforcement Program. The expanded program criteria now include all hazards and OSHA standards. The previous criteria were limited to cases involving fatalities, three or more hospitalizations, high-emphasis hazards, the potential release of a highly hazardous chemical (process safety management), and enforcement actions classified as egregious.

Additionally, employers will be placed in the program if OSHA finds at least two willful or repeated violations or issues failure-to-abate notices based on the presence of high-gravity, serious violations. The previous standard focused on cases where there was a willful or repeated serious violation or a hazard the employer failed to abate that was directly related to an employee death or an incident that caused three or more hospitalizations.

Employers placed in the program are placed on a public list of the nation’s severe violators and are subject to follow-up inspections for up to three years.

In other changes:

  • Follow-up or referral inspections must be conducted within one year, but not longer than two years, after the final order. Previously, there was no required time frame in which OSHA would conduct a follow-up inspection after the final order.
  • The potential for removal from the program begins three years after the date of verification that all SVEP-related hazards have been abated, instead of when final order is issued.
  • Employers can reduce the amount of time in SVEP to two years if they consent to an enhanced settlement agreement that involves implementing a safety and health management system that includes the seven basic elements outlined in OSHA’s Recommended Practices for Safety and Health Programs, which are available here:          


More information about the Severe Violator Enforcement Program is available here.

WCRI: Behavioral Health Issues Can Delay Injury Recovery

Unaddressed behavioral health issues can delay an injured worker’s recovery and return to work and increase medical costs, according to a Workers Compensation Research Institute report.

The report, “A Primer in Behavioral Health Care in Workers’ Compensation,” examines the relationship between an injured worker’s mental health and recovery time after a workplace injury. Information for the report comes from interviews with workers’ compensation system stakeholders, including employers, insurers, labor advocates and medical care providers. It also includes a review of occupational medical treatment guideline recommendations related to the provision of behavioral health services and a literature review of studies focused on behavioral health services provided in workers’ compensation systems.

The report says that for some workers, poor recovery expectations can become self-fulfilling, and says other psychosocial issues that can delay recovery include:

  • Fear of pain and reinjury
  • Perceived injustice
  • Job dissatisfaction
  • Pessimism
  • Fearfulness
  • Low motivation
  • Lack of family and community support

According to the report, early mental health intervention can minimize worker recovery time.

This intervention can include educating patients about self-management strategies and referring patients to behavioral health specialists. It recommends a mental health assessment during follow-up care if expected progress is not observed within six weeks of injury, or if a patient’s symptoms cannot be established with objective data.

The report is available for purchase here.

Alcohol Still Most Abused Drug

Marijuana use commanded the headlines in October as President Joe Biden pardoned users convicted of simple possession in federal court, but employers are reminded that alcohol remains the most used and abused drug in America, both at home and on the job.

A study by the American Addiction Centers found that 14.7% of at-home workers and 3.3% of other employees admit to being impaired on the job every week. The National Council on Alcohol and Drug Dependence reports that:

  • Workers with alcohol problems are 2.7 times as likely to have injury-related absences.
  • Alcohol was detected in 16% of emergency room patients injured at work.
  • At least 11% of the victims of workplace fatalities had been drinking.
  • Nearly one in four workers (24%) reports drinking during the workday at least once in the past year.
  • A hospital emergency department study found that 35% of patients with an occupational injury were at-risk drinkers.

Alcohol abuse is considered a disability under the Americans with Disabilities Act; however, employers have the right to prohibit workers from consuming alcohol while on the job and to prohibit workers from being under the influence of alcohol while on the job. Employers are allowed to discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct.

Employers may be required under the ADA to make accommodations for alcoholic employees to attend counseling appointments.


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