Over the past several years practitioners in the workers’ compensation area have seen numerous attempts by entities seeking reimbursement for monies paid to, or on behalf of, an injured worker, and which possibly should have been the responsibility of a workers’ compensation insurance carrier or self‑insurer.
Over the past several years practitioners in the workers’ compensation area have seen numerous attempts by entities seeking reimbursement for monies paid to, or on behalf of, an injured worker, and which possibly should have been the responsibility of a workers’ compensation insurance carrier or self‑insurer. Medicare, Medicaid and disability benefit providers are at the forefront. Group health carriers and medical providers are authorized to seek reimbursement, and primarily do so after becoming aware of a workers’ compensation claim upon receipt of a third party request for records. Healthcare providers are currently pushing a new piece of legislation, which, while novel, is quite problematic.
House Bill 661 would require the State Board to furnish data to healthcare providers so that they may protect their interests in the event a workers’ compensation claim is filed. This new legislation is being proposed by Representative Mark Burkhalter of District 50. The bill, which if passed, would be codified at O.C.G.A. § 34‑9‑33, providing as follows:
To amend Chapter 9 of Title 33 of the Official Code of Georgia Annotated, relating to regulation of rates, underwriting rules, and related organizations, so as to create a workers’ compensation records inquiry service to be established and maintained by the State Board of Workers’ Compensation, to name which entities shall furnish data; to provide for reporting criteria; to provide for applicability and fees; to provide for resolution of reimbursement disputes; to provide for related matters; to provide for an effective date; to repeal conflicting laws, and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
The General Assembly acknowledges that it is important to control the high cost of health care. There is no one single solution to this crisis, but the solution requires a multitude of efforts and coordination and cooperation with the insurance industry, the general public, health providers, and state, and the federal government. Part of the solution is to eliminate multiple payments of health claims. The creation of a health insurance claim data base will provide a necessary tool to the coordination of benefits between licensed providers under Title 33.
Chapter 9 of Title 33 of the Official Code of Georgia Annotated, relating to regulation of rates, underwriting rules, and related organizations, is amended by adding a new Code section to read as follows:
(a) A health care insurer licensed to offer health insurance under Georgia law or a fully self‑insured plan, a governmental plan, or an employee welfare benefit plan as described by the federal Employee Retirement Income Security Act which enrolls residents of this state shall be deemed to be a party with an appropriate interest in the records of the State Board of Workers’ Compensation as described in subsection (b) of Code Section 34‑9‑12. As used in this subsection, the term ‘health care provider’ means an insurer, a fraternal benefits society, a health care plan, a nonprofit medical service corporation, a nonprofit hospital service corporation, a health care corporation, a health maintenance organization, or any other entity authorized to sell accident and sickness insurance policies, subscribed certificates, or other contracts of health insurance by whatever name called under Title 33.
(b) To provide an entity described in subsection (a) of this Code section with appropriate records access, the State Board of Workers’ Compensation shall initiate and maintain a workers’ compensation records inquiry service. Each eligible entity, or its designated agent, may submit an electronic list of members’ identities for which workers’ compensation case information is requested. Each entity shall certify that all persons whose identities are submitted are, or have been, insured members of the entity’s health benefit programs. The board shall compare the submitted list of members to the records of valid workers’ compensation cases. Where a case record exists for a listed person, the board shall report to the entity or its agent the following information on each such case:
(1) The full name of the claimant;
(2) The social security number of the claimant;
(3) The date of birth of the claimant;
(4) The name of the claimant’s employer;
(5) The date of injury;
(6) A description of the type of injury or illness and the body part affected;
(7) The name, address, and case number of the insurance carrier handling the case;
(8) The name of the insurance adjuster handling the case;
(9) The identifying number assigned to the case by the board; and
(10) The current status of the case.
Claims data compiled by the board or reported to the entity are confidential and are not subject to Article 4 of Chapter 18 of Title 50, relating to inspection of public records.
(c) State Board of Workers’ Compensation file information shall be reported to the entity or its agent in electronic format within 30 days of the entity’s original request. The entity or its agent shall be charged a service fee for each submission which shall be set by the board at a level to cover the full costs of the service.
(d) Entities described in subsection (a) of this Code section are authorized to submit requests for reimbursement to the relevant workers’ compensation insurer where the entity can document that it has paid medical claims for the diagnosis or treatment of a compensable injury or illness.
(e) Workers’ compensation insurers shall make direct reimbursements to entities described in subsection (a) of this Code section whenever the entity can demonstrate that it has paid for compensable medical benefits at the lesser of prevailing workers’ compensation provider payment schedules or the entity’s actual payments.
(f) Disputes as to the entity’s right to reimbursement shall be resolved by referral to the Alternative Dispute Resolution Division of the State Board of Workers’ Compensation. Upon denial of reimbursement by a workers’ compensation insurer, the entity requesting reimbursement may request mediation of the dispute. Any mediation fee shall be paid by the losing party.”
This Act shall become effective only if funds are specifically appropriated for purposes of this Act in an Appropriations Act making specific reference to this Act and shall become effective when funds so appropriated become available for expenditure.
All laws and parts of laws in conflict with this Act are repealed.
A cursory reading of the proposed legislation raises numerous questions and concerns. First, it comes at a bad time since the State Board is in the midst of implementing a very complex ICMS system. Getting the correct name of the carrier, the servicing agent, and the adjuster handling the case can be difficult. Providing a “current status of a case” is not defined and could be interpreted any number of ways. Obtaining all of the information required will, as anyone who deals with claims can attest, take a significant effort, especially to keep it current. Privacy issues are of a concern as is the impact on settlements, particularly those involving no‑liability. Finally, there are questions about the initial cost of funding the program, a statute of limitations, and the result of any misinformation or failure to provide information. Reporting requirements for carriers and self‑insurers may well have to change since medical only claims are lumped together and filed periodically. Every claim, no matter how insignificant, would need to be reported in such a manner so as to allow the Board to provide the information required in subsection (b) if the legislation is directed at any medical expenses that are provided after a work injury.
There is no doubt about the fact that group health carriers are becoming more aggressive in recouping monies. A prime example of such can be found in an article in The Wall Street Journal on November 20, 2007. A Wal‑Mart employee, Deborah Shank, suffered permanent brain damage as a result of a motor vehicle accident. The injury was so significant that she was left unable to care for herself. Her husband and three children recovered $700,000 from the trucking company that caused the accident. Wal‑Mart filed suit for the $470,000 it spent on her medical care based on a provision in the policy. It prevailed, leaving the family in a real quandary since Ms. Shank’s future medical care may be unaffordable. Although seemingly unjust, Wal-Mart pointed to a provision in its group health policy that was intended to negate a double recovery.
Perhaps the real irony here is that a new law is being proposed to allow group health providers a means to recoup monies while no attempt has ever been made to amend our own subrogation statute, O.C.G.A. § 34‑9‑11.1. This Code section is so poorly drafted that attempts at recovery are expensive and often futile. See, e.g., CGU Ins. Co. v. Sabel Industries, Inc., 255 Ga. App. 236 (2002). If truly interested in preventing a double recovery, the Legislature ought to amend it to delete any recovery for indemnity benefits but provide for an absolute lien for any and all medical expenses, which are the lion’s share of a workers’ compensation claim. This would be a good compromise. The “fully and completely compensated” requirement almost always negates recovery of what an employer or insurer pays when the injury is the result of a third party. Code section 34-9-11.1, at least in its current form, does not work and has not worked since it went into effect fifteen years ago.
House Bill 661 is an attempt by group health carriers to shift their burden and responsibilities to the workers’ compensation system. Since they already have the ability to intervene in a workers’ compensation claim pursuant to O.C.G.A. § 34-9-206, we need to ask whether this legislation is even necessary. While the theory may be good, directing the Board to do their work and asking the taxpayers to fund it, at least initially, should raise some eyebrows. Whether it would reduce costs thereby allowing more affordable health insurance for citizens of is debatable. As for employers and their workers’ compensation insurers, it certainly could drive up costs if they are required to individually report each and every claim no matter how minor. Just keeping it current is going to be expensive and, as we all know, greater costs beget higher premiums. This piece of legislation needs to be studied in detail to determine the feasibility and costs – those on both sides of the equation – before it is presented for a vote. The study group should include representatives from the State Board as well as employers and workers’ compensation insurers. The ripple effects from this piece of legislation might well be undesirable.