Workers’ Comp Job Killer Proposal Fails to Move

Disney Apologizes After Employee Thwarts Marriage Proposal - The New York  TimesSource: CalChamber, by Ashley Hoffman

Legislation expanding the presumption that certain diseases and injuries are caused by the workplace failed in an Assembly policy committee this week for lack of a motion.

SB 213 (Cortese; D-San Jose) was opposed as a job killer by the California Chamber of Commerce and a coalition including numerous local chambers of commerce.

It would have significantly increased workers’ compensation costs for public and private hospitals by presuming certain diseases and injuries are caused by the workplace and established an extremely concerning precedent for expanding presumptions into the private sector.

In a letter sent last week to the Assembly Insurance Committee, the CalChamber-led coalition pointed out that SB 213 would have imposed an astronomical financial burden on employers in the health care industry by creating a permanent legal presumption that the following are presumptively workplace injuries for all hospital employees that provide direct care: bloodborne infectious disease, tuberculosis, meningitis, methicillin-resistant Staphylococcus aureus (MRSA), cancer, musculoskeletal injury, post-traumatic stress disorder, or respiratory disease, including COVID-19, and asthma.

The Legislature has consistently rejected this bill in all its forms, the coalition stated.

Undermines System

Workers’ compensation insurance automatically covers injuries occurring within the course and scope of employment, regardless of fault.

SB 213 sought to require that hospital employees do not need to demonstrate work causation for specified injuries or illnesses in any circumstance. Instead, these injuries and illnesses would have been presumed under the law to be work related.

Presumptions of industrial causation for specific employees and injury types are simply not needed and create a tiered system of benefits that treats employees differently based on occupation and undermines the credibility and consistency of the workers’ compensation system.

Presumption Extension

The bill’s special standard for accepting claims would have applied to hospital workers not only while employed, but also would have continued for up to 3, 5 or 10 years (depending on the injury) after the worker left employment.

Generally, there is a one-year statute of limitations for workers’ compensation claims. By requiring claims to be filed within one year from the date of injury, existing law ensures claims will be resolved while evidence and witnesses are still available. Stale claims, faded memories, and unavailable witnesses not only impede an employer’s ability to defend against a claim, but also impede the ability of the workers’ compensation system to evaluate a claim properly.

By permitting a former employee to come back and file a claim for up to 10 years after employment had ended, SB 213 would have rendered the employer virtually powerless to question the compensability of the claim.

Troubling Precedent

Although there is a long history of legal presumptions being applied to public safety employees in the workers ‘compensation system, there has never been a presumption applied to private sector employees outside of the COVID-19 pandemic.

Legislation passed in 2020 (SB 1159; Hill; D-San Mateo) established a rebuttable presumption that certain employees who contracted COVID-19 were covered under workers’ compensation. Even in this exceptional circumstance, SB 1159 was limited in both time and scope. The bill has a sunset date of January 1, 2023, and most employees outside of a few industries can fall under the presumption only if four or four percent of other workers at the worksite also contracted COVID-19 within a short time frame.

SB 213 reached far beyond SB 1159 without justification by making a permanent presumption that can apply up to 10 years after an employee has stopped working.

Workers’ compensation is designed to apply a consistent, objective set of rules to determine eligibility, medical needs and disability payments for all injured workers in California. The Legislature should not take on the role of trying to identify likely injuries for every occupation in the state with the goal of creating special rules for those employees. This is an unrealistic expectation in an insurance system that covers thousands of types of employees and employers.

No Evidence

Supporters of SB 213 have argued that health care workers are more likely to contract the diseases listed in the bill. But analyses of prior versions of the bill by a Senate committee found no evidence to support that argument.

Moreover, no statistical evidence has been presented to indicate that workers’ compensation claims by hospital employees for exposure to the diseases listed in SB 213 are being inappropriately delayed or denied by employers or insurers. In addition, there has been no demonstration that hospital employees are uniquely affected in a negative way by the current legal standard for determining compensability of industrial injuries.

A Proposal to Import Drugs from Other Countries Creates an Unusual Alliance in the Senate

A Proposal to Import Drugs from Other Countries Creates an Unusual Alliance  in the Senate | Kaiser Health NewsSource: Kaiser Health News, by Victoria Knight

Harmony is not often found between two of the most boisterous senators on Capitol Hill, Bernie Sanders (I-Vt.) and Rand Paul (R-Ky.).

But it was there at Tuesday’s Senate Health, Education, Labor and Pensions Committee markup of legislation to reauthorize the Food and Drug Administration’s user fee program, which is set to expire Sept. 30.

This user fee program, which was first authorized in 1992, allows the FDA to collect fees from companies that submit applications for drug approval. It was designed to speed the approval review process. And it requires reauthorization every five years.

Congress considers this bill a must-pass piece of legislation because it’s used to help fund the FDA, as well as revamp existing policies. As a result, it also functions as a vehicle for other proposals to reach the president’s desk — especially those that couldn’t get there on their own.

And that’s why, on Tuesday, Sanders took advantage of the must-pass moment to propose an amendment to the user fee bill that would allow for the importation of drugs from Canada and the United Kingdom, and, after two years, from other countries.

Prescription medications are often much less expensive in other countries, and surveys show that millions of Americans have bought drugs from overseas — even though doing so is technically illegal.

“We have talked about reimportation for a zillion years,” said a visibly heated Sanders. “This bill actually does it. It doesn’t wait for somebody in the bureaucracy to make it happen. It actually makes it happen.” He then went on for several minutes, his tone escalating, citing statistics about high drug prices, recounting anecdotes of people who traveled for drugs, and ending with outrage about pharmaceutical companies’ campaign contributions and the number of lobbyists the industry has.

“I always wanted to go to a Bernie rally, and now I feel like I’ve been there,” Paul joked after Sanders finished talking. He went on to offer his support for the Vermont senator’s amendment — a rare bipartisan alliance between senators who are on opposite ends of the political spectrum.

“This is a policy that sort of unites many on both sides of the aisle, the outrage over the high prices of medications,” added Paul. He said he didn’t support drug price controls in the U.S. but did support a worldwide competitive free market for drugs, which he believes would lower prices.

Even before Sanders offered his amendment, the user fee bill before the committee included a limited drug importation provision, Sec. 906. It would require the FDA to develop regulations for importing certain prescription drugs from Canada. But how this provision differs from a Trump-era regulation is unclear, said Rachel Sachs, a professor of law at Washington University in St. Louis and an expert on drug pricing.

“FDA has already made importation regulations that were finalized at the end of the Trump administration,” said Sachs. “We haven’t seen anyone try to get an approval” under that directive. She added that whether Sec. 906 is doing anything to improve the existing regulation is unclear.

Sanders’ proposed amendment would have gone further, Sachs explained.

It would have included insulin among the products that could be obtained from other countries. It also would have compelled pharmaceutical companies to comply with the regulation. It has been a concern in drug-pricing circles that even if importation were allowed, there would be resistance to it in other countries, because of how the practice could affect their domestic supply.

A robust discussion between Republican and Democratic senators ensued. Among the most notable moments: Sen. Mitt Romney (R-Utah) asked whether importing drugs from countries with price controls would translate into a form of price control in the U.S. Sen. Tim Kaine (D-Va.) said his father breaks the law by getting his glaucoma medication from Canada.

The committee’s chair, Sen. Patty Murray (D-Wash.), held the line against Sanders’ amendment. Although she agreed with some of its policies, she said, she wanted to stick to the importation framework already in the bill, rather than making changes that could jeopardize its passage. “Many of us want to do more,” she said, but the bill in its current form “is a huge step forward, and it has the Republican support we need to pass legislation.”

“To my knowledge, actually, this is the first time ever that a user fee reauthorization bill has included policy expanding importation of prescription drugs,” Murray said. “I believe it will set us up well to make further progress in the future.”

Sen. Richard Burr (R-N.C.), the committee’s ranking member, was adamant in his opposition to Sanders’ amendment, saying that it spelled doom for the legislation’s overall prospects. “Want to kill this bill? Do importation,” said Burr.

Sanders, though, staying true to his reputation, didn’t quiet down or give up the fight. Instead, he argued for an immediate vote. “This is a real debate. There were differences of opinions. It’s called democracy,” he said. “I would urge those who support what Sen. Paul and I are trying to do here to vote for it.”

In the end, though, committee members didn’t, opting to table the amendment, meaning it was set aside and not included in the legislation.

Later in the afternoon, the Senate panel reconvened after senators attended their weekly party policy lunches and passed the user fee bill out of the committee 13-9. The next step is consideration by the full Senate. A similar bill has already cleared the House.

CMS Proposes Prior Authorization for Home Health Services

The Partnership for Quality Home Healthcare expressed deep concern about a proposal by the Centers for Medicare & Medicaid Services’ (CMS) that would require prior authorization of Medicare home health services. Under the proposal, CMS must approve physician ordered services before care can be initiated. The Partnership says that this would delay access to services, increase costs to Medicare and to taxpayers, and place burdensome requirements on providers. Other healthcare sectors that require prior authorization have documented care delays of up to 10 days.

Keith Myers, chairman of the Partnership said, “Home health patients are often at greatest risk during the transition from hospital to home. For care to be delayed by several days opens up the possibility for a host of adverse events ranging from missed medication, to new infections, to poor management of chronic conditions. We urge CMS to recognize the potential negative patient consequences that will result from a prior authorization requirement and we urge the agency to not proceed with a prior authorization demonstration program for home health.”

Home health leaders also warn that prior authorization would drive up costs to Medicare since patients would be more likely to be sent to more expensive in-patient facilities or experience a hospital readmission while waiting at home alone for their prescribed post-acute care. The proposed demonstration program would also increase the administrative burden on doctors and home health agencies who already provide extensive documentation on patient eligibility for home healthcare services. The proposal would not reduce fraud and abuse in the home health community, according to the Partnership. Bad actors will submit false records to satisfy the need for prior authorization, just as they do for CMS’ other documentation requirements.

In addition to these policy concerns, home health leaders stress that CMS does not have the legal authority to implement this prior authorization demonstration. The Partnership has offered several proposals to address fraud, including targeting aberrant billing and utilization, having sufficient checks on qualifications and background, and identifying geographic hot spots for fraud.

Last Updated 06/29/2022

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