Progress, Not Perfection: Industry Update, Advancement and Reflection

By Jennifer Hurless, J.D., president of PartnerSource

I’d like to share a mantra with you that has helped me throughout life, and seems particularly apropos as we continue to advance an industry that focuses on innovation in the care of injured workers. 

You’ve heard the phrase, “Progress, not perfection.” When I was in elementary school in my small hometown of Canton, Mississippi, I began to play softball. I was in second grade here and had never played sports before, and I was intimidated, especially because I was playing with much older girls with more sports experience. I let that stop me for so many games! I stood there with the bat and never swung because, in my young mind, that meant I couldn’t mess up if I didn’t swing.

It wasn’t until my very last at-bat in the last game of the season where I finally swung.

And what do you know? I hit a line drive right back to the pitcher.  Now, she caught it and I was out.  But it didn’t matter. You would have thought I hit a home run to win the World Series, the way I celebrated!

Looking back, and as small as that event was, it was a life-changing moment for me. For one, I fell in love with sports. Once I hit the ball, I just wanted more! But more than that, it was a life lesson for me, centered around this mantra, “Progress, not perfection.”  Make contact…take a step forward…it may not be perfect, but it’s progress.  And you can build on progress. 

In our industry are several noteworthy areas of progress that I want to share as we all continue to move forward and swing for the fences in our own businesses:

Insight from Department of Labor on Injury Reporting Timeframes

After years of asking the Department of Labor (DOL) for direction on specific topics, PartnerSource has received some direction on the issue of injury reporting. While not perfect direction, we did gain insight, which is definitely progress. First, while the DOL didn’t endorse any specified timeframe, what they seemed most concerned about was the harshness of a denial in the context where an injured worker acted reasonably. Whether you’re using 24 hours, 3 days, 30 days, or anywhere else in between, administration of a provision requiring an action on the part of an injured worker must be reasonable on its face and must be administered reasonably. 

Over the last year, PartnerSource has given our clients some things to consider when evaluating the reasonableness of your timeframe and we’ve helped you build in some discretion to account for reasonableness. If you have questions about these timeframes or would like specific recommendations for your plan, contact PartnerSource today.

While the guidance received wasn’t exactly perfect, it is something we can work with. And, it’s a good outcome. We all want this to be a fair process because it isn’t about denying claims -- it’s about getting the best outcome for your injured worker. 

Legislative Update: Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022 (“#Me Too” Bill) and the FAIR Act

Earlier this year, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022 passed.  The passage of this bill has no impact on your Texas program; it only addresses sexual assault and sexual harassment claims. However, that bipartisan support for the #MeToo bill provided momentum for the reintroduction of The FAIR Act earlier this year.

The FAIR ACT, if passed, could potentially have an impact on your arbitration program because it would end the ability to utilize pre-injury or pre-dispute arbitration agreements in employment claims as well as other disputes in the consumer and antitrust context.  The cornerstone of the potential impact of The FAIR Act on your arbitration provision lies in the definition of an “employment dispute,” which is defined in the bill as a “dispute between one or more individuals arising out of or related to the work relationship or prospective work relationship between them.”

If this definition remains, an employer could no longer implement a mandatory arbitration of any employment dispute, including the negligence claim arising out of a work injury, under the FAA. We would need to look elsewhere or consider alternative forms of dispute resolution.   

Put this on your radar and pay attention. To the extent you have influence on the government relations efforts of your company, it’s something to mention. The potential impact extends far beyond your Texas injury program: It could impact all employment-related disputes. The success of your Texas injury program is not dependent on mandatory arbitration -- in fact, there are some great programs in Texas that do not use mandatory arbitration -- but because many use this as a dispute resolution tool, we want you to be aware and advocate to the extent you can. 

Texas Mutual Bill

The Texas Legislature passed a bill that would authorize the review and potential creation of a new subsidiary under Texas Mutual. This new subsidiary would be able to offer a health insurance product. 

Currently, Texas Mutual is only allowed to sell statutory workers compensation coverage. This bill would allow Texas Mutual to sell “accident or health insurance, another type of health benefit plan, or other alternative health benefit coverage to individuals or businesses in Texas.”  This bill would expand Texas Mutual’s offering. 

Now, the stated reason it sought to create this subsidiary is to expand affordable health coverage opportunities to under-served rural communities in Texas. While that is seemingly something we can all get behind, there are a couple of issues:

1. Unlike private health carriers, this bill exempts Texas Mutual from complying with insurance laws, which are arguably the reason there are so few affordable coverage opportunities, particularly in rural areas.  That appears to be a competitive advantage against other health insurers. 

2. Coverage is not limited to rural areas.  It is, however, limited to individuals and small employers defined as less than 250 employees. 

Let me make this point clear: The bill does not allow Texas Mutual to create an insurance policy that offers liability coverage for occupational accidents so it does not appear to allow Texas Mutual to enter the insurance market for Texas option programs, but it does reference accident and other alternative health benefit coverage, which could include occupational accident programs. 

Why is this important to you? A healthy insurance market is necessary to support the Texas option industry. Many Texas Option carriers also offer occupational accident policies, so it’s possible Texas Mutual could use this to enter the occupational accident market and compete against your carrier. Now, competition is absolutely necessary for any market to thrive. Competition between the subscriber and nonsubscriber market is part of what makes Texas your lowest cost state, right? But the competition should be fair. Expanding a limited function quasi-governmental agency and exempting it from rules that apply to its competitors does not appear the best way to encourage competition.   

Stay involved and pay attention to what’s happening and step in when you can. PartnerSource is a member of ARAWC, the Association for Responsible Alternatives to Workers Compensation.  ARAWC continues to do great work protecting and promoting the interest of Texas option employers. ARAWC employs a lobbyist on federal matters, AJ Donelson, and one for state matters, Ryan Brannan, who is the former Commissioner of the Texas Workers Compensation Commission. These professionals are fantastic and work really hard to stay ahead of developments and keep its members informed.  If you want more information on ARAWC membership, please reach out to me and I will connect you to ARAWC. 

COVID Reflections

The dust is beginning to settle a bit around COVID, which has given us some time to reflect on its impact on injury benefit plans in Texas.  First, I’m proud to say that it was your team at PartnerSource who jumped in to figure out initial coverage decisions both under the plan and within insurance policies and began working with the trade association to pursue COVID liability protections for employers. Three things PartnerSource has observed regarding COVID include:

• Benefit plan language worked. While COVID was completely unexpected, the language in the plan documents at the time addressed the situation. For the healthcare industry, the analysis was a bit harder requiring a case-by-case analysis to determine if the job function performed created causal link to the contraction of the illness. And of course, in healthcare, particularly when dealing with COVID patients either in hospital settings or home healthcare or senior living, there were COVID claims that were covered when the causation link was clear. 

• Insurance now including pandemic exclusion. Many of the policies contained similar language, but since the pandemic, three carriers have begun to include a pandemic exclusion endorsement on their policies. The other thing we saw was that some carriers were initially leery of the healthcare exposure.  That’s lessened now, but there’s still some critical assessment of the healthcare risk. 

• Liability has been low. The passage of the Pandemic Liability Protection Act did a lot to curb COVID litigation.  In fact, PartnerSource has seen only four lawsuits. Three have been dismissed and it looks like the fourth is about to be dismissed. We had some settlements, particularly in the early part of the pandemic in the healthcare industry. 

As tough as the pandemic has been, injury benefit plans supported by PartnerSource were probably in a better position to address the unforeseen than any other occupational program in the country, partly because your current plan language addressed the situation. 

But, let’s assume it didn’t. Had the language not addressed the situation, you would not have had to wait on the state legislature or any governmental body to give you guidance.  As sponsors of an injury benefit plan, you are poised to revise your plan in order to address the need. It remains in your hands to exercise responsibly (and the negligence exposure certainly keeps an employer honest).  But in times of crisis, you are in the best position to respond quickly to address the needs of your workforce, and that’s a good place to be.

In Conclusion

By no means, is everything perfect. We are in an industry that is constantly evolving and growing! What I have absolutely no doubt about is that PartnerSource clients continue to run some of the best occupational injury programs in the country.

As we all continue to learn and experience life and business together, I am confident that continuing to adopt the mantra of “Progress, not perfection,” will help keep all of us moving forward in a positive direction of growth together.

Let’s swing for the fences as we all maintain a commitment to providing outstanding care for injured workers.