Adjusting to the DOL’s Overtime Rules
At last, the Department of Labor released its proposed overtime rules, which extend overtime pay next year to workers earning a minimum salary of $921 per week or $47,892 annually. However, by the time the final rule is issued in 2016, the DOL estimates that the salary level will climb to $970 per week or $50,440 per year.
Other proposed changes involve continuously increasing the salary level each year and setting a higher standard for highly compensated employees, from the current $100,000 level to $122,148.
According to a White House press release, the proposed overtime change is expected to impact nearly 5 million workers — 56 percent of whom are women and 53 percent of whom have at least a college degree — and better reflect the intent of the Fair Labor Standards Act.
The Bush administration last updated the salary level in 2004, to $23,660 ($455 per week). Currently, though, that salary, “. . . is below the poverty threshold for a family of four and only eight percent of full-time salaried workers fall below it,” according to the release.
Gregory J. Kamer, founding partner at Kamer Zucker Abbott, a management labor employment law firm in Las Vegas, said the new regulations, if adopted, will require employers to decide whether they want to pay overtime or employ more workers.
“Clearly, the wage will go up or there will be more employment or [job] openings. That can be a hard call.”
“The changes that have been hinted at [regarding] duties could actually have a more significant business impact than even the salary increase.” — Lee Schreter, chairman of the board, Littler Mendelson
Lee Schreter, chairman of the board at Littler Mendelson in Atlanta, said companies will also need to spend time and money analyzing the regulations and informing employees of the changes.
“It’s a mistake to focus solely on the salary level,” she said. The changes to the duties requirements may create new legal standards for the courts to interpret.
“The changes that have been hinted at [regarding] duties could actually have a more significant business impact than even the salary increase.”
The changes may also limit opportunities for advancement, said Kerry Chou, senior practice leader at WorldatWork, an HR association based in Scottsdale, Ariz.
He noted that first-line supervisors who perform nonexempt duties but also manage employees by assisting in their hiring, promotions and discipline may lose the opportunity to develop skills and demonstrate their supervisory aptitude because of the proposed rules.
Other employers may mitigate the expense by preventing employees from working more than 40 hours each week or laying them off, he said.
The industries most affected by the new salary include retail and fast-food restaurants, he said, since their first-line supervisors tend to earn a lower average wage when compared to employees in other industries, such as engineering or technology manufacturing.
He said employers will need to make adjustments to employee pay and duties, workforce size, and develop new work rules that make them compliant with the new law.
“But at the end of the day,” he said, “they may negatively impact the employees [that the DOL rules] are trying to help.”
Schreter noted the DOL has asked employers for input on appropriate white-collar exemptions, such as what changes should be made to the duties test, if employees should be required to spend a minimum amount of time performing work that’s their primary duty to qualify for the exemption, and if California’s law that requires employees to spend half their time on primary duty tasks should serve as a model.
Schreter said that California’s law “flunks,” adding that it has spawned a lot of litigation in the state, and that it requires employers to figure out a way to monitor and record the amount of time executives spend performing exempt activities.
Ideally, she would like to eliminate the duties test altogether, but says it’s not possible given its current statutory structure.
Spotlight on Employee Theft
Fraud costs the typical organization about 5 percent in revenue each year, and the median loss from employee theft overall is about $280,000. That amount is roughly equivalent to what a small company (less than 500 employees) earns in net profit.
“For these smaller employers, [employee theft] has the potential to knock them out,” said Doug Karpp, senior vice president and national underwriting leader, crime and fidelity, at Hiscox.
And smaller employers are the most likely targets, according to a report recently released by the specialty insurer, “A Snapshot of Employee Theft in the U.S.”
An analysis of federal actions involving employee theft in 2014 showed that 72 percent of cases occurred at companies with fewer than 500 employees. Within that subset, 80 percent of incidents occurred at organizations with fewer than 100 employees, and more than half of those had fewer than 25 on staff.
“Smaller companies just don’t have the resources to have robust internal controls,” Karpp said. “They run lean. Losses tend to be more devastating to them.”
Fifty-eight percent of the cases surveyed for this report recovered none of their losses.
That finding isn’t surprising, but even larger entities with more protections in place are not immune. The financial services sector, for example, constituted 21 percent of employee theft incidences. The second-most targeted industry was real estate and construction at 13 percent.
Despite reporting the largest share of employee thefts, however, the median loss for financial services institutions was less than the overall median at $271,000.
“The financial services sector has more resources to detect and deter fraud,” Karpp said.
While the retail industry suffered only 5 percent of total fraud cases, it sustained the highest median loss of $606,012. That may partially be due to “idiosyncrasies with the way the study was done,” Karpp said.
Federal Court Cases Studied
The report examined only federal court cases, and retailers may very likely encounter many smaller thefts — especially outright theft of funds — that are handled at a local level and thus would not be counted in this study. Those that do get federal attention are more likely to be very large, more complicated losses.
The most common types of theft were outright funds theft (38 percent of losses) and check fraud (34 percent) — when a fraudster alters, forges or makes checks payable to himself.
Or rather, herself. Women were the perpetrators in more than 60 percent of cases, especially outright funds theft and payroll fraud. However, the median loss from schemes carried out by women was about $243,447 — 30 percent less than their male counterparts, who typically committed vendor fraud. Hiscox’s report defines vendor fraud as “a perpetrator diverting employer funds through the creation and submission of false invoices issued by fictitious companies.”
The typical thief was also around 50 years of age and worked in a senior level position in an accounting or finance role, typically with a long tenure.
Many employers miss signs of fraud because they believe their employees to be content in their jobs and generally trustworthy. In fact, according to Karpp, upticks in fraud — or at least its discovery — tend to happen during poor economic times, which may drive employees to divert extra funds to themselves, and also motivate employers to look more closely at their accounting processes
“One goal of the report is to raise awareness of fraud prevention techniques” during good times and bad, Karpp said, explaining that even companies with tight margins can adopt simple practices to mitigate the risk of employee theft.
Best practices include keeping certain tasks separate, such as record-keeping, issuing checks and reconciling bank accounts; no individual employee should be in charge of an accounting process from start to finish. Any checks written or wire transfers should receive approval from two senior managers or executives before completed.
Small business owners can also have all statements sent to their homes to be personally reviewed before any accounts are reconciled.
Many companies also wrongfully assume that traditional business and property policies cover internal theft. Fifty-eight percent of the cases surveyed for this report recovered none of their losses.
Having a crime policy in place that includes coverage for losses caused by through cyber deception, social engineering, vendor theft, funds transfer fraud, computer fraud, telephone toll fraud and other types of theft is the best way to ensure that road to recovery exists.
The Tools of the Trade
Integrating medical management with pharmacy benefit management is the Holy Grail in workers’ compensation. But getting it right involves diligence, good team communication and robust controls over the costs of monitoring technology.
Risk managers in workers’ compensation can feel good about the fact that opioid use is declining slightly. But experts who gathered for a pharmacy risk management roundtable in Philadelphia in June pointed to a number of reasons why workers’ compensation professionals have more than enough work cut out for them going forward.
For one, although opioid use is declining, its abuse and overuse in legacy workers’ compensation claims is still very much a problem. An epidemic rages nationally, with prescription drug overdose deaths outpacing those from the abuse of heroin and cocaine combined.
In addition, increased use of compound medications and unregulated physician dispensing are resulting in price gouging and poor medical outcomes.
Although individual states are attempting to address the problem of physician dispensing of prescriptions in workers’ comp, there is no national prohibition against it: That despite substantial evidence that the practice can result in ruinous workers’ compensation medical bills and poor patient outcomes.
“The issue is that there isn’t enough formal evidence to indicate improved outcomes from the use of compounds or physician dispensed drugs, and there are also legitimate concerns with patient safety,” said roundtable participant Jim Andrews, executive vice president, pharmacy, for Duluth, Ga.-based pharmacy benefit manager Healthcare Solutions.
Andrews’ concerns were echoed by another roundtable participant, Dr. Jennifer Dragoun, Philadelphia-based vice president and chief medical officer with AmeriHealth Casualty.
“When we’re seeing worsening outcomes and increasing costs, that’s the worst possible combination of events,” Dr. Dragoun said.
Whereas two years ago, topical creams and other compounds with two to three medications in them were causing concern, now we’re seeing compounds with seven or more medicines in them.
How those medicines are interacting with one another, and in the case of a compound cream, how quickly they’re being absorbed by the patient, are unknowns that are creating undue health risks.
“These medicines haven’t been tested for that route of administration,” Dragoun said.
In other words, the compounds have not been reviewed or approved by the FDA.
Carol Valentic, vice president of cost containment and medical management with third-party administrator Broadspire, said her company’s approach to that issue is to send a letter to providers, through the company’s pharmacy benefit administrator, alerting them to the fact that compounds are not FDA-approved and could be dangerous.
Other roundtable participants said they employ utilization review of every prescribed compound medication. They’re finding that the inflation of the average wholesale price for prescriptions that pharmacy benefit managers are battling in the case of single medications is happening with compounds as well, to the surprise of probably no one.
“The cost of compounds is doubling every year,” Healthcare Solutions’ Andrews said.
Kim Clark, vice president of utilization management with Patriot Care Management Inc., a division of Patriot National, Inc., said Patriot has their own software, DecisionUR, and opioids as well as compound prescriptions can be directed from the PBM to Utilization Review.
In the area of new worries in workers’ compensation, and there are plenty of them, Dragoun also pointed to the introduction of extremely high cost, albeit extremely effective specialty medications, such as those being used to treat Hepatitis C. Treatments in this area can run into the hundreds of thousands of dollars.
Domestic drug manufacturers, pressed to pursue profits as their product lines mature and their margins level off, are jockeying for dominance in this area.
“This seems to be a route that a lot of drug makers are going after. Very narrow markets but with extremely high cost medications,” said Deborah Gleason, clinical resources manager, medical programs, with ESIS, the Philadelphia-based third-party administrator that is part of ACE Group.
Tools of the Trade
Given how substantially the use of prescriptions can balloon the cost of a workers’ compensation claim and undermine outcomes, a number of tools are in the market that can help risk managers rein in costs.
One is urine drug monitoring, which can catch cases of drug diversion, or instances where an injured worker is ingesting unprescribed substances. But the use of that test can create its own problems, namely overutilization.
Gleason, with ESIS, Inc., and others use urine drug monitoring. But when the test is overused, say by being conducted every month instead of quarterly as is recommended, the members of the Philadelphia roundtable said its costs can outrun its usefulness.
Test results are frequently inconsistent, signaling that the injured workers aren’t taking the prescribed medication or are taking something they shouldn’t be. Drug testing shouldn’t be used in isolation but rather as a component of integrated medical management.
“What’s emerging today, and in some companies more prevalently, is the integration of managed care with pharmacy benefit management,” roundtable participant Valentic said.
“When we’re seeing worsening outcomes and increasing costs, that’s the worst possible combination of events.”
— Dr. Jennifer Dragoun, Vice President and Chief Medical Officer, AmeriHealth Casualty
In other words, it’s not enough to flag a script or pick up a urine drug monitoring test result. There needs to be a plan or a system in place that says what action should be taken with the patient once that information has been received.
Identifying a potential problem early and taking action on it is key, said ESIS’ Gleason. She added that the patient’s psychological state, including how they react to and perceive pain, is something that more risk practitioners should consider.
Obstacles to assessing someone’s psychological or psychosocial state, according to roundtable members, include a lack of awareness or acceptance of its possible advantages on the part of patients and physicians. After all, we’re talking about an assessment, a list of questions, that should take no more than 15 minutes to carry out.
If a treating physician or case manager doesn‘t conduct a psychological test but is still concerned about the potential for pain medication abuse, there is one key question they can ask an injured worker, according to AmeriHealth Casualty’s Dragoun.
“There is one question that predicts far more than any other attribute of a patient whether they are likely to abuse narcotics, and that is if they have a personal or family history of substance abuse,” Dragoun said.
“You know they may ask that about the patient, but I don’t know how many ask it about the family,” Patriot Care Management’s Kim Clark said.
Pharmacogenetic testing, that is testing an individual for how they might react to certain drugs or combinations of drugs, and not — let’s be clear about this — whether they are predisposed to addiction, is also entering the market.
But as is the case with urine drug monitoring, the use of pharmacogenetic testing is no cure-all and the cost of it needs to be carefully managed.
Some vendors are pitching that it be applied to every case in a payer’s portfolio. The roundtable participants in Philadelphia agreed that it should be used with far more discretion than that.
Regulating the Regulators
It’s a given in the insurance business and in workers’ compensation that regulators in all 50 states call the shots. There are few national laws that regulate the hazards faced by workers’ compensation risk managers and injured workers.
Having said that, is it really such a pipe dream to think that the federal government could step in and provide leadership in an area that is so prone to confusion, risk and self-serving behavior on the part of some vendors and medical practitioners?
If the Philadelphia roundtable as a group could point to one place where federal regulators could do some good it would be in the area of physician dispensing. Many states have enacted legislation to curb the practice, as there is no data to prove better outcomes, and regulation by the federal government would be of benefit, the Philadelphia roundtable concluded.
Another area would be to require FDA oversight for compounds.
“The minute you need to have FDA approval of a compound, that’s going to stop it,” Broadspire’s Valentic said.
It’s a notion worth considering. After all, lives are at stake here.
Given the lack of oversight from the federal government, the roundtable participants pointed to measures in a number of states that are worth emulating. The Texas closed formulary, which limits the range of medications that can be prescribed, is one example.
The requirement in the State of New York that a prescribing physician check a state registry — what’s known as a prescription drug monitoring program — to check whether a patient is already taking or has a prescription for a controlled substance, is another good example of a state government stepping in to ensure the safety of its residents.
“The minute you need to have FDA approval of a compound, that’s going to stop it.”
— Carol Valentic, Vice President of Cost Containment, Medical Management, Broadspire
Pennsylvania also earned praise from the roundtable for recently passing a measure limiting the amount of medication that a physician can dispense to an initial supply.
With different regulations in every state and with the average wholesale cost of prescriptions constantly on the rise, pharmacy benefit management is an art requiring constant vigilance.
“It’s not an original thought, but if you stop and think about all the things that are happening in society with the addictions and the costs, the cost of doing nothing is greater than the cost of doing something.
I think that’s why everybody is doing something,” Healthcare Solutions’ Andrews said.
For more information about Healthcare Solutions, please visit www.healthcaresolutions.com.
Opinions of the roundtable participants are the opinions of each individual contributor and are not necessarily reflective of their respective companies.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Healthcare Solutions. The editorial staff of Risk & Insurance had no role in its preparation.