Developed policy in opposition to proposals permitting employers to opt out of workers’ compensation (2012). Opt-out jeopardizes workers’ benefits and results in “alternate universes” of separate and unequal work injury compensation benefits plans. It also violates key principles governing work injury compensation for the past century, including uniform benefits regardless of employer, uniform adjudication of disputes, exclusive remedy, internalization of employer work injury costs, incentives for maintaining a safe workplace, and financial guarantees for worker benefits. In the only state that adopted opt-out (Oklahoma), the state Supreme Court ruled it unconstitutional in 2016. AIA participated as an amicus with the Court on behalf of the injured worker.
Developed policies governing prescription drugs, in response to opioid crisis and cost-abuse involving physician dispensing and compound drugs (2012). These policies include, inter alia: (1) prohibiting (or severely restricting) physician dispensing; (2) precluding reimbursement for compound medications absent preauthorization; (3) strengthening state prescription drug monitoring programs, mandating physician and pharmacy checking before prescribing/dispensing, requiring interstate cooperation, and 3rd party access, among other improvements; (4) requiring states to adopt interagency dosing limits for non-cancer, chronic pain; and (5) adopting closed formularies to prevent indiscriminate prescription of opioids. AIA leadership on these issues was recognized by (1) Pew Charitable Trust, in its inclusion of AIA’s President & CEO at release of its seminal report on Prescription Drug Monitoring Program (PDMP) Best Practices (2012), the only representative of the property & casualty insurance industry invited; and (2) my inclusion in program held at Georgetown University examining 3rd party payer access, hosted by Brandeis University’s PDMP Center of Excellence, Heller School for Social Policy and Management.
Led industry response to initiatives seeking to impose third party administration on workers’ compensation residual markets, which would have decoupled claims administration from financial responsibility for pool results and thereby left insurers, who are responsible for reinsuring pool’s results, without any direct ability to manage losses (2013). Attempts in Illinois and Kansas were defeated, and Tennessee residual market, where 3rd party model had been in place since 2000, was altered along lines recommended.
Served as leading insurance industry participant in NAIC’s multi-year examination of large deductibles (Large Deductible Filing Guidelines; Revisions to NAIC TPA Model Regulation to include workers’ compensation) (2004-2010). Led industry effort to correct proposed position of NAIC’s Joint Working Group that would have prohibited insurer-employer-TPA common business practices. NAIC’s Model TPA Regulation (applicable to workers’ compensation) adopted position in section 11, preserving these tripartite arrangements. Successfully advocated NAIC’s approach on behalf of industry when issue arose in Arkansas (2010) and Idaho (2015) that threatened to block employers with large deductibles from contracting with TPAs, even with contractual protections imposed thorough insurer’s master services agreement. Participated in renewed NAIC examination of large deductibles which did not disturb these protections in its final report. (2015-2016).
Drafted AIA model competitive rating law. Rating laws in Delaware, Pennsylvania, Missouri, and Montana closely reflect AIA model, which also has been useful over the years as other states considered moving from administered pricing to loss cost systems.
Drafted state-specific remedial analyses of workers’ compensation systems, identifying weaknesses and recommending legislative or regulatory improvements. Analyses drew on claims and financial data generated by NCCI and other rating organizations, as well as WCRI research and AIA member recommendations. As foundation for analyses, I organized member company task forces, comprised of individuals with state-specific expertise. Analyses were the template for reform initiatives, allowing AIA to engage effectively with employer community, other stakeholders, and policymakers.
Developed comprehensive policy governing expansion and privatization of state workers' compensation insurance funds, in response to proposed legislation authorizing them to write coverage in other states and/or other lines.
Developed policy guidance in wake of initiatives in Nevada (1999) and West Virginia (2005) to privatize their monopoly state funds. Guidance represented a template for how to resolve key issues in transforming these insurance markets. Developed AIA staff recommendation (member-approved) in opposition to Oregon Ballot Initiative to dissolve State Accident Insurance Fund (SAIF), as an improvident diversion of policyholder surplus to state government and as an otherwise ill-considered plan that would have risked destabilizing the state’s workers’ compensation insurance market; the ballot initiative lost overwhelmingly.
Testified before state fund study commissions, in Oklahoma and Colorado (2010), providing guidance on how and under what circumstances state funds should be privatized, an objective AIA endorsed. Developed industry’s policy response in opposition to repeated attempts by Colorado’s Pinnacol to expand scope and jurisdiction under various guises that would have resulted in an expansion of government’s insurance authority and an unlevel playing field against the private workers’ compensation insurance market. Views published in Denver Post op-ed (2012). Testified before legislature and provided policy guidance to Insurance Commissioner in Montana on steps to further insulate state fund from legislative interference. (2014).
Developed policy governing second injury fund assessments, while reinforcing policy favoring their abolition, in response to AICPA’s 1997 guidance (and NAIC’s 2000 guidance) pertaining to obligations imposed by loss-based funds. Advocated successfully in a number of states for using premium, collective through a separately stated surcharge, as the assessment basis for any loss-based funds, As a consequence, an insurer’s pro rata share of a second injury fund’s ultimate liability is not reflected as a loss on the carrier’s books, in turn freeing up risk-based capital that can be deployed into the workers’ compensation market.
Led industry, post-Clinton Care’s consideration, in opposition to various proposals, such as single payer initiatives and 24-hour coverage plans, which would remove medical benefits from workers’ compensation and instead provided coverage under group health. Developed policy paper in opposition to single payer initiative in California advocated by then-Insurance Commissioner John Garamendi (1994), the NAIC’s 24-hour model, and individual state 24-hour proposals through the 1990s and into the first decade of this century. Most recently, I drafted the definitive paper – and testified -- in successful opposition to Vermont’s single payer plan, advanced after enactment of the Affordable Care Act. Arguments advanced in that testimony/paper subsequently appeared in materials of interests opposing Colorado’s single payer initiative, defeated decisively in the 2016 elections.
Drafted first reform bill for Pennsylvania (1991) which led to 1993 reforms; organized insurance industry stakeholders in two-day working session in Harrisburg to hammer out consensus legislation and give industry ability to effectively engage employers and others in addressing system cost-drivers. AIA language covering a number of benefit delivery system issues and competitive rating model eventually became law.
Initiated successful effort to convince Virginia employers in support of legislation overturning Workers’ Compensation Commission decision that denied survivor benefits to widow of worker who died in unwitnessed accident, based on standing Supreme Court precedent that a claimant must be able to explain how injury occurred. Worker was comatose and later died without regaining consciousness, thus was both physically and mentally unable to testify as to how the accident occurred. The Commission’s decision was cited in Congress as an illustration of why the states could not be trusted to administer workers’ compensation fairly and as basis for federal intervention (2009). I recognized that decisions such as this one risked discrediting the workers’ compensation system.
Organized/led industry’s successful opposition to initiatives by the Committee for a Responsible Federal Budget that would have adverse effects on workers’ compensation claims. These initiatives were in connection with Congress’s consideration of remedies to refloat the insolvent Social Security Disability Insurance (SSDI) program. In 2015, the Committee established the McCrery-Pomeroy SSDI Solutions Initiative to develop recommendations based on research papers it commissioned, including one mistakenly contending that state workers’ compensation benefit “cuts” have shifted workers’ disability costs to SSDI. I drafted a paper disputing this contention and engaged others in the workers’ compensation field nationally to educate key members of the Initiative’s Advisory Council, the Initiative’s “issue facilitator,” and House Ways & Means and Senate Finance Committee staffs. This effort involved explaining that federal legislation addressing workers’ compensation in an SSDI solvency solution would be predicated on erroneous premises and would lead to federal intrusion into state workers’ compensation programs and thereby jeopardize their financial stability.
Led industry effort to protect workers’ compensation from legislative and regulatory proposals on medical privacy that would have impeded ability of employers and insurers to obtain and disclose information critical to evaluating compensability and managing medical treatment. Congressional and state legislation usually did not distinguish between medical information collected for group health and workers’ compensation, the latter of which is subject to statutory mandates on payment of benefits. I developed a comprehensive matrix of information obtained and disclosed in connection with a property casualty (and workers’ compensation) claim, which served as a template for explaining the complexity of information required in workers’ compensation and aid in evaluating innumerable bills and regulatory proposals. Focus of effort was on flaws in proposed Congressional legislation (Senator Robert Bennett (R-UT), HHS HIPAA medical privacy rules, and NAIC protected health information model regulation. Final HIPAA rules, promulgated in 2002, included language expressly exempting workers’ compensation from authorization requirements that would have been onerous and unworkable if applied to workers' compensation claims. NAIC model subsequently reflected the same exemption.
Drafted federal legislation to overturn U.S Supreme Court’s 1990 decision in Adams Fruit, which held tort remedy under federal Migrant & Seasonal Worker Protection Act (MSPA) was supplemental to and not in lieu of protections under state workers’ compensation law. Decision subverted exclusive remedy and eroded incentives for farm employers to secure workers’ compensation for farmworkers. In leading the industry’s response, I worked with agricultural employers and key members of Congress and testified before the House Education & Workforce Committee, successfully winning support for 1995 MSPA amendments that overturned decision.
Organized industry opposition to U.S. Department of Labor’s proposed OSHA Ergonomics Standard, promulgated at the end of the Clinton Administration and ultimately invalidated in 2001 by Congress. OSHA’s Ergo Standard included provisions that duplicated state workers’ compensation benefits. I secured counsel to draft comments on the proposed rule and enlisted other non-AIA members and insurance trades in our effort.
Served as the leading insurance industry representative in maritime employer coalition developing comprehensive amendments to Longshore & Harbor Workers’ Compensation Act (2004-2006), resulting in introduction of legislation by Senator Johnny Isakson (R-GA) in 2006 and successive Congresses. Bill has not been considered because of unfavorable political landscape. It would be the first amendments since 1984, an effort in which I was a key participant as the Republican Counsel for Labor with the House Education & Labor Committee.
Organized industry’s opposition to class action filings alleging that insurers and self-insured employers conspired to deny workers’ compensation benefits under the Michigan Workers’ Disability Compensation Act (WDCA), in violation of the federal Racketeer Influenced Corrupt Organizations Act (RICO). The allegation of intent to defraud was based on the adverse opinions of medical professionals. As a legal matter, this position attempted to convert a personal injury into a property interest cognizable under RICO by alleging an entitlement to benefits under the WDCA. The policy ramifications to the Michigan workers’ compensation system and workers’ compensation nationally, were a RICO claim sustained, would have been intimidation of claims and medical review professionals by implicitly threatening to turn every claim into a RICO action with treble damages. Effectively, RICO would thus become a highway for evasion of the exclusive remedy and the administrative authority of state workers’ compensation agencies to which all workers’ compensation disputes are committed. It would explode dispute and litigation costs, while moving workers’ compensation disputes from state agencies and courts to federal courts.
I secured counsel to file amicus briefs in multiple cases in the 6th circuit and interface with defense counsel of record, thus ensuring that our legal and policy arguments were reflected in filings. I secured the financial participation of a number of AIA members, as well as other entities that agreed to appear on amicus briefs – the U.S. Chamber of Commerce, the National Council of Self-Insurers, and the American Trucking Association. This activity involved at one time up to four separate actions. After many twists and turns, including plaintiffs’ unsuccessful appeal to the U.S. Supreme Court, this theory of recovery was finally rejected in 2013, through an en banc decision of the 6th circuit in Jackson v. Sedgwick Claims Management Services. Final rejection of RICO claims in the other leading case followed several months later (Brown v. Cassens Transport).
The favorable precedent I helped achieve in the 6th circuit will be useful in other circuits should RICO challenges be asserted.
Organized insurance industry response to class action filed in Pennsylvania federal court against insurers. Action was brought by employees and employee organizations challenging constitutionality of 1993 Pennsylvania workers’ compensation reforms that gave insurers authority to withhold payment for medical treatment until the reasonableness of treatment can be determined pursuant to the Act’s utilization review procedures. I secured counsel to reinforce and assist defendants’ counsel by drafting and filing an amicus brief with both the 3rd circuit court of appeals and the U.S. Supreme Court. AIA retained counsel also assisted in identifying Supreme Court counsel after the 3rd circuit issued an adverse decision. I also provided substantive workers’ compensation guidance in drafting the briefs. The Supreme Court “granted certiorari [cite omitted] to resolve a conflict on the status of private insurers providing workers' compensation coverage under state laws -and to review the Court of Appeals' holding that due process prohibits insurers from withholding payment for disputed medical treatment pending review.” In American Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999), the Court reversed the 3rd circuit 8-1 and in so doing clarified the nature of state action required under 42 U.S.C. 1983. That statute requires respondents to establish that they were deprived of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed under color of state law. In holding that it does not constitute state action when insurers follow statutorily permitted procedures, the Court’s decision preserved an important aspect of the 1993 reforms.
It also laid the foundation for upholding against constitutional challenge provisions of the Longshore & Harbor Workers’ Compensation Act that give an insurer the authority to suspend benefits “for any reason” without a hearing. E.g., in Kreschollek v. Southern Stevedoring Co. (2000) the 3rd circuit cited Sullivan as controlling authority. These decisions also knocked the underpinnings out from a long-standing federal district court decision holding that due process protections apply to an employer’s suspension of benefits under the Pennsylvania Act and thereby required a pre-deprivation hearing. Thus, state workers’ compensation systems may still require a hearing prior to suspension or termination of benefits (as Pennsylvania still does), but there is no constitutional requirement for doing so. I also procured counsel to file an amicus in Kreschollek.
Participated as amicus in U.S. Supreme Court case, Director, Office of Workers’ Compensation Programs v. Greenwich Collieries (1994), in which the Court invalidated the Department of Labor’s “true doubt” rule. The rule was an ultra vires tie-breaking rule employed by DOL’s administrative law judges in Black Lung and Longshore Act cases where evidence was deemed to be “in equipoise," thus finding for the claimant, notwithstanding failure to prove the case by a preponderance of the evidence, the standard required under state workers’ compensation laws. The Court held the rule violated the Administrative Procedure Act. I secured amicus counsel who had clerked for Justice Sandra Day O’Connor, who not only authored the Court’s opinion but cited AIA’s amicus brief in her opinion.
Testified numerous times before public legislative and regulatory bodies on proposed legislation and regulation.
Frequently quoted in insurance trade press as AIA representative with respect to legislative and regulatory initiatives and significant issues of the day.
Appeared on innumerable workers’ compensation conference programs, including NCCI’s Annual Issues Symposium (AIS); Workers’ Compensation Research Institute; National Council of Self-Insurers; NAIC Workers’ Compensation Task Force; National RX Drugs Symposium; CompPharma Annual Meeting; among others.