Monday, August 22, 2016

The National Conversation Continues

The National Conversation convened in Dallas last May and resulted in an extensive list of topics that people contend are worthy of consideration. The Conversation has been joined. There have been various articles written that are worthy of review: Rafael Gonzalez, Bob Wilson, and others have written on the Conversation and ideas surrounding it. Organizations like the Southern Association of Workers' Compensation Administrators (SAWCA) will continue the conversation at upcoming meetings. 

On August 21, 2016 the Conversation reconvened in Orlando. A few faces had changed, but the spirit remained. There is a focus on finding common ground where improvements can be made in the way workers' compensation performs. The first subject of discussion on Sunday was the adequacy of benefits. This is a subject that has many facets and perspectives. First among them is the distinction that is critical between macro and micro analysis. That is are the benefits adequate in the system, for the expanse of people potentially entitled, and then are the benefits enough in this particular situation with this particular individual. As the Conversation continues, there will have to be careful distinctions drawn between these two analysis. 

The Conversation turned to the distinctions and difficulties with compensation. A major stumbling block remains whether a system should compensate disability or impairment. In other words, will compensation be based on Functional Loss or Financial Loss? The Conversation will have to include consideration of whether compensation is based on the inability to return fully to a previous occupation or any occupation

The participants asked questions about what "adequacy" means. And discussed a variety of state systems that have established a variety of benefit descriptions, and in some instances benefit combinations that provide for workers. Several comments were added regarding systems that are in the news for being "high cost" or "high complexity." There were also mentions of states that have systems or processes that attract praise. Kentucky and Tennessee were both mentioned in this discussion of systems perceived as balanced and efficient. 

There was lamenting of the failure in discussions of workers' compensation. There is a perception that there is too much discussion about costs and process, definition and delineation. Walt Disney is famous for a quote "I only hope we don't lose sight of one thing, it was all started by a mouse." I was reminded of that as attendees reminded each other that this whole industry started with injured workers. These are not cases, they are people. That is worthy of remembering and of being reminded. It is also worthy to remind ourselves that the system was also built to benefit employers. These are the real parties, the employee and the employer. And the rest of us, yes me, you, all, are just ancillary contributors to the process. 

There was also suggestion that the Federal Workers' Compensation system could be a guide in deciding what is working and what is not. That system is perceived to operate without some of the controversies and disagreements. It is an interesting suggestion. It does not take into account that running a benefit system is probably easier when you have the bottomless bucket of Federal debt behind the process. Given a blank check, it is likely that most controversies or disagreements can be spent away?

There was discussion of medical benefits. Are systems delivering the best? Is there a layer (or two) of bureaucracy in the medical delivery system. One mentioned that employees perceive differences in medical care under group health and workers' compensation. This remains when it is the same patient and the same doctor; when the only variable is the involvement of workers' compensation, there is a perceived difference. That is intriguing. 

One of the critical points that keeps coming up is the mental reaction that we all have based on words. How things are phrased can be very important. We all know that wordsmiths and speech writers and news editors are hard at work every day to get the phraseology exactly as they need it to deliver their message, to affect us as they wish. Advertisers are the best at it, convincing us that we "need" a parade of junk that is of no real benefit, but we buy it anyway. That billboard, magazine, or website just talk us into it. 

In this spirit, there was general consensus that "workers' compensation" would be better perceived if it was called "workers' recovery." The focus, according to various attendees, of the system should be on recovering from injury. The focus should be on getting back to work and back to health, not on how compensation is delivered. This is interesting. Is there merit in changing terminology to change perceptions and motivations?  

The discord between the diverse market participants resurfaced. There is a perception that large employers are engaged and active in the management of the worker safety and workplace injuries. This is compared to the perceived disengagement of small employers. These businesses are the "backbone of the economy," and employ a large portion of American workers. And the Summit attendees lament that these small employers do not engage in the National Conversation, and are not really focused on workers' compensation until an injury affects the business directly.  

There is a consensus that there is too much regulation. There are too many regulations and they are discordant. The various jurisdictions are over-regulated and the various jurisdictions are rife with conflicting desires and needs. There is a feeling that some consistency is both needed and possible in the way that state systems are regulated. The EDI efforts are mentioned in this regard, and there is significant criticism of the data collection and processing efforts of various jurisdictions. There is a call for a critical analysis of what this data is relevant to, and how it could be standardized to make participation in multiple systems and jurisdictions less costly and complicated. 

The issue of penalties for management and processing continues to rate high on the list of critical issues. National Conversation participants are interested in less focus on the minutia of reporting and record keeping. There are descriptions of audits and penalties that distract employers and carriers from providing benefits. The question was asked "does this put benefits in the hands of the injured worker?" And, that is a question that is going to receive more attention.  

The administrative burdens of the medical delivery process were also discussed. There are complaints about the volume of paperwork and intricacies involved in delivering medical care. There was also discussion of the "bad actors in the system." California's Drobot prosecution received some attention, as did the ongoing national opioid issues. The Conversationalists questioned why states consistently attempt to address narrow issues with the addition of new layers of broad restrictions and regulations. Why can states not more narrowly focus on the specific issues and problems, and correct poor behavior of the market with existing regulation?

There is a question about the false claims process available in the federal systems like Medicare. Could states enact such provisions in workers' compensation systems? Would this incentivize insiders to identify and illuminate issues and abuses? Could that bring an effective civil remedy restraint on these "bad actors?" It was also suggested that states need greater cooperation between workers' compensation regulatory agencies and the agencies that regulate and license physicians and other service providers. That suggestion received nods and agreement around the table. 

Finally, the group discussed why there are delays in medical care. The Maine process of expediting care at the expense of group health, with subsequent determination of subrogation has wide acceptance and interest. But, the group health market was not at the table for the discussion. Some suggested that their perspective may be different. 

There is concern that the best doctors and providers are not participating in the system. Some contend that the various regulations and bureaucratic roadblocks may discourage physicians and others from participating as care providers. Telemedicine was discussed as a partial solution to provider availability issues. It is an interesting extension of efforts, and leverages technology. But there is a perception that more providers are needed. The perception is that systems have to encourage more providers to participate in delivery of care. 

The Conversation continues. The market is engaged and with continued talks and refinements, this effort will bear fruit. Everyone involved deserves our thanks and appreciation. 

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