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:
https://www.osha.gov/sites/default/files/publications/OSHA3885.pdf.
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.
COVID News
Insurance Journal
Study Traces COVID-19 Impact on New York Workers’ Compensation Claims
During the height of the pandemic, New York workers’ compensation indemnity payments increased while medical payments decreased. Click here for full article.
Benefits Pro
Average Long COVID Worker’s Compensation Claim was $216k, Research Finds
Many people are aware of the staggering costs that COVID-19 can have for employees, both emotionally and financially. In addition to the uncertainty of COVID-19, workers have to deal with changes in their day-to-day lives and concerns about how being out of work for long periods of time can limit their income. Click here for full article.
The Hill
Omicron-specific Coronavirus Boosters Could Save 90K Lives: Research
The omicron-specific bivalent COVID-19 boosters could potentially prevent tens of thousands of deaths in the U.S. and save billions of dollars in health care costs if a successful immunization campaign is carried out, according to new research. Click here for full article.
WGBH
Could a New U.S. COVID Surge could be on its Way? Here are the Early Warning Signs
As the U.S. heads into a third pandemic winter, the first hints are emerging that another possible surge of COVID-19 infections could be on its way. Click here for full article.
Pew Research Center
Lack of Preparedness Among Top Reactions Americans Have to Public Health Officials’ COVID-19 Response
Amid the rollout of updated COVID-19 booster shots around the United States, a new Pew Research Center survey finds mixed views of public health officials at the forefront of the nation’s response to the outbreak. Click here for full article.
The Washington Post
Few Americans get New COVID Booster Shot Ahead of Projected Winter Surge
Joe Gonzales, 37, said he knows there’s still a risk of getting covid — he believes he was infected with the virus this summer. But after getting two doses of the vaccine, the Flower Mound, Tex., man doesn’t understand why he needs the third and fourth “booster” shots urged by federal health officials. Click here for full article.
Market Watch
Large Number of U.S. COVID Deaths could be Prevented if Patients would take Pfizer’s Paxlovid, White House Coordinator Warns
A large number of U.S. COVID deaths could be prevented if patients would take Paxlovid, the antiviral developed by Pfizer PFE, -0.69% that helps reduce the risk of hospitalization and death, according to White House COVID coordinator Dr. Ashish Jha. Click here for full article.
Safety + Health
Finalized Standard on COVID-19 for Health Care Imminent: OSHA Official
OSHA is “very, very close” to issuing a permanent standard on COVID-19 for the health care industry, an agency official announced Monday during a presentation at the 2022 NSC Safety Congress & Expo at the San Diego Convention Center. Click here for full article.
Centers for Disease Control and Prevention
Similarities and Differences between Flu and COVID-19
Influenza (flu) and COVID-19 are both contagious respiratory illnesses, but they are caused by different viruses. COVID-19 is caused by infection with a coronavirus (SARS-CoV-2) first identified in 2019. Flu is caused by infection with a flu virus. Click here for full article.
NBC News
COVID Death Rates are Higher Among Republicans than Democrats, Mounting Evidence Shows
Covid deaths are unevenly distributed among Republicans and Democrats. Click here for full article.
State News
California Department of Insurance
San Jose Father and Son Charged in Alleged $12 Million Workers’ Comp Scheme
Edgardo Cabrales Sr., 61, and his son, Edgar Cabrales Jr., 36, both of San Jose, are charged with five felony counts each of insurance fraud after a Department of Insurance investigation found they allegedly underreported $12 million in employee wages and payroll to save on workers’ compensation insurance premiums. Click here for full article.
Conecticut.gov
Governor Lamont Announces Workers’ Compensation Rates Will Decrease in 2023
Governor Ned Lamont today announced that Connecticut businesses will see another rate decrease in workers’ compensation insurance beginning on January 1, 2023. The Connecticut Insurance Department has approved an annual filing with decreases of 3% to workers’ compensation pure premium loss costs. Click here for full article.
The Center Square
Workers’ Compensation Insurance Rates To See Decline For Sixth Straight Year
Worker’s compensation rates in Delaware are on the decline. Insurance Commissioner Trinidad Navarro said Monday that for the sixth straight year, beginning Dec. 1, the voluntary and residual markets will both witness double-digit decreases. Click here for full article.
The Center Square
New Workers’ Compensation Insurance Rates Will Save Indiana Businesses $80 Million
Indiana businesses will see a decrease in workers’ compensation insurance rates next year due to a decline in the frequency of claims and the cost per claim. Click here for full article.
Kentucky Chamber
Many Kentucky Employers Expected to See Continued Decrease in Workers’ Compensation Costs
Many Kentucky employers can expect another decrease in workers’ compensation costs next year. The Kentucky Department of Insurance (DOI) has announced the approval of the 2022 loss costs filing, which will be used to develop employer rates for workers’ compensation coverage in 2023. Click here for full article.
Ohio Capital Journal
Pharmacy Middleman Agrees to Pay Ohio Workers’ Comp $15M, Attorney General Says
Ohio Attorney General Dave Yost says a major health care company has agreed to pay Ohio $15 million to settle claims against it. The company says there’s no settlement and that it continues to dispute Yost’s claims. Click here for full article.
WorkersCompensation.com
Federal Appeals Court Finds Pennsylvania Poultry Processing Facility In Contempt For Failing To Pay $162K in Penalties, Address Safety Violations
A federal court has found Birdsboro Kosher Farms Corp. in contempt for failing to pay $162,359 in penalties after an inspection by the U.S. Department of Labor’s Occupational Safety and Health Administration found numerous safety hazards, including willful, serious and repeat violations. Click here for full article.
Yakima Herald-Republic
WA State Proposes Increases to Workers’ Compensation Insurance Rates
The Washington Department of Labor & Industries proposed a 4.8% increase in workers’ compensation insurance payments in 2023. Click here for full article.
Industry News
CBS17
Workers’ Compensation Scam Targets Victims on Facebook Messenger
There’s a new scheme where scammers are using Facebook Messenger to con people into thinking they are eligible for big bucks in unclaimed workers’ compensation. Click here for full article.
Forbes
Turning Workplace Safety On Its Head
Workplace safety has always been a top issue for employees and employers alike. Employees are actively seeking companies that support their well-being, and employers are striving to provide the best benefits and resources possible to ensure success and safety on the job, including insurance, proper training and the right equipment. Click here for full article.
GlobeNewswire
Job-Related Knee Injuries Costing U.S. Economy Billions
Every time you take a knee it takes a toll. You just might not know how much until it’s too late. Safety and health agencies—including the National Institute for Occupational Safety and Health (NIOSH)—have long recognized tasks that involve frequent stooping, kneeling, or squatting increase the risk of developing cumulative knee injuries such as bursitis, tendinitis, or osteoarthritis (OA) of the knee. Click here for full article.
Insurance Business America
Revealed – The 10 Largest Workers’ Compensation Insurance Providers in the US
Even with all the necessary safety precautions in place, workplace accidents still can happen – and at times, even a single mishap can have massive financial consequences for a company. Click here for full article.
Insurance Business America
Which Workplace Injuries Offer the Most Compensation?
Work-related injuries and illnesses cost US businesses a combined $163.9 billion in losses, the latest data from the National Safety Council (NSC), the country’s leading non-profit public health and safety service organization, has revealed. Click here for full article.
Reinsurance News
US Workers’ Comp Insurance Line Faces Uncertain Future Despite Solid Profits
Uncertain future for US workers’ compensation insurance line, warn analysts at AM Best, despite the line generating solid profits. Click here for full article.