Is Integration the Answer to Compliance?
Addressing worker health has many parts – health care, wellness, disability management and workers’ comp. Managing them as a whole instead of discrete components can help reduce costs while improving outcomes, which is why more and more employers are moving toward an integrated approach to employee health and safety. But streamlining administration of these programs and making decisions that go across the board can also have the added benefit of tightening up regulatory compliance.
The Americans with Disabilities Act (ADA) – and amendments made in 2008 – present employers with a thorny trail to blaze. Especially after the implementation of the Affordable Care Act, employers are shouldering a greater responsibility for employees’ health and wellness, and rules imposed by the ADA can complicate matters as companies and organizations strive to improve worker health without overstepping boundaries.
The intersection of the ADA with other regulations like the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA) also creates gray areas for employers when it comes to deciding what benefits an injured or disabled employee is entitled to, if any. In a National Law Review article, labor and employment attorney Melvin Muskovitz called the intersection of ADA, FMLA and workers’ comp issues the “‘Bermuda Triangle’ of employee health-related statutes.”
Leave and benefits provided by workers’ compensation can overlap with what employees may be entitled to under the ADA and FMLA; carriers can benefit from more open communication with administrators of health plans and wellness and safety programs to ensure the right program responds to a request for accommodation or benefits.
One issue they all have in common is “the potential for claims of discrimination or retaliation,” Muskovitz wrote. “An employer must be sure the employee does not suffer any adverse employment action as a result of the leave of absence or condition necessitating the leave.”
“Integration is the only way to go with all these regulations coming at employers,” said Tamara Blow, principal consultant at TYB Global Business Consultants, LLC. “You need all the key players involved.” That includes human resources, safety managers, risk managers, and legal counsel, as well as the payroll department or others in charge of tracking attendance. With multiple perspectives weighing in on decisions, it should be easier to identify where clashes with different statutes could occur.
Take for example the case of Peggy Young, a female UPS delivery worker who sued the company in 2007. When Young became pregnant in 2006, her doctor ordered her not to lift more than 20 pounds; UPS delivery workers sometimes have to lift packages of up to 70 pounds. Young brought the doctor’s note to her supervisor and requested a temporary reassignment, which was denied because pregnancy is not covered under the ADA. She was placed on unpaid leave for the duration of her pregnancy.
Young, whose case is currently being heard by the Supreme Court, argued that UPS violated the PDA, which states that pregnant women must be treated the same, in terms of receipt of benefits, as “others not so affected but similar in their ability or inability to work.” In other words, if UPS provides accommodations for an injured worker with the same physical limitations as Young, she should also receive benefits even though she is not technically disabled.
Could an integrated approach have helped UPS avoid this regulatory tangle?
“Absolutely,” Blow said. “Any HR professional who’s worth their salt knows that the Pregnancy Discrimination Act would be the first to come into play with a pregnant employee.” A cross-functional team that included the legal department might have been able to anticipate potential violations.
“If their system was integrated, they would see that impairments that arise out of being pregnant would qualify as temporary disability covered under the ADA and FMLA,” she said.
For larger employers, though, there are structural hurdles blocking integration. Health care, disability management and workers’ comp tend be viewed as separate programs, so decision-making around them also remains separate.
“Workers’ comp is handled by risk management, which report up to either treasury or general counsel,” said Russell Johnston, casualty president for the Americas at AIG. “Disability benefits and medical tend to be human resources or the administration side. So within larger employers, in terms of their governance model, there are structural disconnects.”
Bringing everyone together from different departments is a time-consuming effort that can also be constrained by office politics, Blow said. “Some departments want to be in charge. They may bash heads over who wants to take this initiative, especially with senior management’s eyes on it.”
Another structural hurdle Johnston pointed to was the way in which companies access these products on the market.
“Larger employers access the workers’ comp market through agents and brokers,” he said. “On the benefits and medical side, agents and brokers tend to be very different from the P/C side. They tend to operate completely separately. And in some cases it’s provided directly by the medical providers to employers.”
For these reasons, smaller employers have an easier time implementing an integrated approach to employee health. “They don’t have the luxury of having large infrastructure, so decisions are made across the totality of their business,” Johnston said.
Despite the obstacles, larger companies can still benefit in the long run from a unified employee health front because of cost savings. However, Johnston believes it won’t necessarily ease compliance issues.
“I struggle to see where it will make a material impact on the compliance side,” he said. “But is there a compelling reason for employers to look at this and try to implement it? Absolutely.”
The Balancing Act of Rehabbing Injured Workers
Putting injured employees at ease, educating cost-conscious employers, and tactfully questioning doctors’ treatment decisions are among the responsibilities workers’ compensation nurse case managers must balance. Added to that, their role has grown increasingly demanding.
More regulatory requirements and claims-payer demands, rising claim complexity, and more service providers involved in a claim’s management make it a very different job today than it was a few years ago, experts said.
Despite the job’s heightened challenges, however, some things remain the same, said Anne Kirby, chief compliance officer and vice president of medical review services for Rising Medical Solutions.
“I find in hiring nurses that the one thing that hasn’t changed is their interest and their dedication to doing the right thing for injured workers,” said Kirby, a registered nurse.
“I don’t see that that has changed at all.”
While guiding injured workers through workers’ comp medical treatment is a primary job focus, the nurses also represent the interests of employers and other claims payers.
“You either love this [work], or you hate it.” — Kim Weaver, an RN and director of professional services at M Hayes
They often form the front line of claims management to ensure workers receive the proper care necessary to expeditiously return to the job, while making sure payers don’t fund unnecessary claim expenses.
That often requires advocating for workers while collaborating with doctors, attorneys, therapists and other service providers. Other times it requires questioning the necessity of those service providers or their decisions.
“In the world of comp you have people who are welcoming you,” including doctors and patients, said Kim Weaver, an RN and director of professional services at M Hayes, a case management company recently acquired by GENEX Services LLC.
“They want to work with you because they see you as an advocate or as a conduit [for their medical care].”
But there are also physicians who believe insurance industry nurses are only there to delay or stop their treatment plans, Weaver said.
Requesting that a doctor consider a different treatment path requires tact and careful wording to avoid offending egos, said Susan Mitchell, an RN and case manager at The Travelers Cos. Inc.
“It’s all a matter of how you present it to them,” she said. “If you come across saying, ‘Your decision on this treatment is not working,’ then they will get defensive and not want to talk to you.”
She carefully explains to doctors when she observes that a patient isn’t improving and asks the physician if they can “talk about something else that might help” the patient, Mitchell said.
Gaining Worker Trust
A key challenge is winning worker trust, particularly for telephonic case managers who don’t have the advantage of working bedside like a hospital nurse, said Amy Jeffries, an RN and nurse manager for Bunch CareSolutions, a unit of Xerox Corp. providing workers’ comp managed care services.
Injured workers are often scared and confused because they have never before suffered a work injury, so they don’t understand workers’ comp, Jeffries added.
“The biggest challenge is establishing a relationship by phone,” she said. “We don’t have that face-to-face contact so from the very beginning it is very important to work to establish trust.”
That requires following through with all promises.
“If you tell the injured worker, ‘I am going to call you back two days after your [medical] appointment,’ follow through and do that because by doing that, you establish that level of trust,” Jeffries said.
The same occurs when workers’ comp nurses provide face-to-face care for workers who have suffered previous workplace injuries, according to Mitchell.
“Initially, they are cautious with me,” she said.
“A lot of people, especially if they have had multiple work comp injuries and they have a history with it, look at me like I am representing the insurance company and I’m going to tell them they can’t have this [treatment] or we are not going to approve that [procedure].”
Mitchell is a case manager working under Travelers’ ConciergeCLAIM nurse program that places nurses in medical provider clinics treating injured workers.
She wins injured worker trust with assurances that she is their advocate and by following through with any promises, such as to obtain answers to questions she can’t immediately answer.
Margie Matsui, western nurse case manager for employer LSG Sky Chefs, said she carefully explains to injured workers why she asks specific questions about their injury, prior health conditions and issues such as their normal sleep pattern.
Explaining the reasons for her questions helps build trust while she learns whether she can teach them about measures for improving their health and whether there are medical complications that need addressing.
Challenges and Rewards
Nurses on the front lines also hear from frustrated injured workers venting about the work comp system or their injury status. But unlike bedside hospital nurses working with an unhappy patient for a few days, a case manager may interact with a disgruntled injured worker for months.
You can’t take negative attitudes personally, nurses advised. Do that, and you may not last in the job.
“You either love this [work], or you hate it,” Weaver said.
The work hours and less physically demanding roles are frequently cited reasons RNs leave a hospital to become a case manager, several sources said. Unlike hospital work, case management typically does not require weekends, nights or holidays.
They also apply their professional skill set in a different manner.
Where hospital nurses provide direct care, nurse case managers spend more time evaluating patients to determine whether they are progressing under their current treatment regimen, Weaver said.
That may require collaborating with a physical therapist, for example, to learn whether the patient is improving and whether their physician needs notification that a different program may be in order.
Nurses say they like the job because of the reward of seeing injured employees progress after working to get them the best medical care for their specific needs.
“There is nothing better than at the end of the file when you are getting ready to close it, looking back and seeing the progress that has been made,” Jeffries said.
Jeffries cited the example of a young worker whose hand got stuck in a piece of equipment, causing extensive nerve damage.
“With this particular gentleman, I didn’t leave my desk at the end of the day without thinking about him and thinking about how he was doing,” Jeffries said.
With the right care “he ended up doing very, very well” with very few limitations.
“It was definitely a success given the extent of his injuries in the beginning,” Jeffries said. “That is definitely one I was very proud of.”
Observers commonly think that telephonic nurse case managers may be less caring than hospital bedside nurses, but such experiences prove differently, Jeffries added.
Meanwhile, today’s nurses are under greater pressure to follow processes and protocols set by insurers, third-party administrators and employers, and they must show a return on investment from their services.
An employer may not immediately agree with a nurse’s care decision even when the decision is based on a professional opinion that spending additional dollars up-front for certain treatment could ultimately result in a speedier recovery, shorter claim duration, and fewer costs in the long run.
“Sometimes doing the right thing for the patient isn’t always seen as doing the right thing by the employer who pays for it all,” said Natalie Rivera, an RN and assistant vice president of clinical solutions at Bunch CareSolutions.
“It’s really balancing those two [demands],” she said. “Doing the right thing for the patient — if you do that, the rest falls into place. But sometimes it’s educating the employer on why this is the right thing to do.”
In addition to increased demands to reduce costs and follow processes, nurses now face medical cases that are more complex than in years past. Claims analytics currently help direct nurses only to patients likely to benefit from their services, but that means RNs will see a higher percentage of injured workers with complex claims.
There are also mandated state treatment guidelines that didn’t exist before, rapidly changing treatment practices, and increasingly complicated pharmaceutical regimens, Kirby said.
“It’s a level of complication that nurses just didn’t have to deal with before,” she added.
Yet that doesn’t change one key role for nurse case managers.
They work to drive collaboration so injured workers, employers, doctors, insurers, and physical therapists, among others, aim for the same goal, said Liz Thompson, CEO at Encore Unlimited LLC, a case management company.
“Our job,” Thompson said, “is to say if this is our goal, and everyone is on the same page, then let’s keep our path real clear about how we are going to get there.”
Read the other installments of our three-part series on nurse case management:
Part I: On the Case
Payers are looking for spirited nurse case managers who will be patient motivators and advocates, not slaves to process.
Part II: How Much Is Too Much?
Nurse case managers can provide vital consultation, but contractual limits to the expenses associated with the service are advisable.
Passion for the Prize
In his 1990 book, The Prize: The Epic Quest for Oil, Money and Power, Pulitzer Prize winning author Daniel Yergin documented the passion that drove oil exploration from the first oil well sunk in Titusville, Penn. by Col. Edwin Drake in 1859, to the multinational crusades that enriched Saudi Arabia 100 years later.
Even with the recent decline in crude oil prices, the quest for oil and its sister substance, natural gas, is as fevered now as it was in 1859.
While lower product prices are causing some upstream oil and gas companies to cut back on exploration and production, they create opportunities for others. In fact, for many midstream oil and gas companies, lower prices create an opportunity to buy low, store product, and then sell high when the crude and gas markets rebound.
The current record supply of domestic crude oil and gas largely results from horizontal drilling and hydraulic fracturing methods, which make it practical to extract product in formerly played-out or untapped formations, from the Panhandle to the Bakken.
But these technologies — and the current market they helped create — require underwriters that are as passionate, committed and knowledgeable about energy risk as the oil and gas explorers they insure.
Liability fears and incessant press coverage — from the Denton fracking ban to the Heckmann verdict — may cause some underwriters to regard fracking and horizontal drilling with a suppressed appetite. Other carriers, keen to generate premium revenue despite their limited industry knowledge, may try to buy their way into this high-stakes game with soft pricing.
For Matt Waters, the chief underwriting officer of Liberty Mutual Commercial Insurance Specialty – Energy, this is the time to employ a deep underwriting expertise to embrace the current energy market and extraction methods responsibly and profitably.
“In the oil and gas business right now, you have to have risk solutions for the new market, fracking and horizontal drilling, and it can’t be avoidance,” Waters said.
Matt Waters, chief underwriting officer of Liberty Mutual Commercial Insurance Specialty – Energy, reviews some risk management best practices for fracking and horizontal drilling.
Waters’ group underwrites upstream energy risks — those involved in all phases of onshore exploration and production of crude oil and natural gas from wells sunk into the earth — and midstream energy risks, those that involve the distribution or transportation of oil and gas to processing plants, refineries and consumers.
Risk in Motion
Seven to eight years ago, the technologies to horizontally drill and use fluids to fracture shale formations were barely in play. Now they are well established and have changed the domestic energy market, and consequently risk management for energy companies.
One of those changes is in the area of commercial auto and related coverages.
Fracking and horizontal drilling have dramatically altered oil and gas production, significantly increasing the number of vehicle trips to production and exploration sites. The new technologies require vehicles move water for drilling fluids and fracking, remove these fluids once they are used, bring hundreds of tons of chemicals and proppants, and transport all the specialty equipment required for these extraction methods.
The increase in vehicle use comes at a time when professional drivers, especially those with energy skills, are in short supply. The unfortunate result is more accidents.
“In the oil and gas business right now, you have to have risk solutions for the new market, fracking and horizontal drilling, and it can’t be avoidance.”
— Matt Waters, chief underwriting officer, Liberty Mutual Commercial Insurance Specialty – Energy
For example, in Pennsylvania, home to the gas-rich Marcellus Shale formation, overall traffic fatalities across the state are down 19 percent, according to a recent analysis by the Associated Press. But in those Pennsylvania counties where natural gas and oil is being sought, the frequency of traffic fatalities is up 4 percent.
Increasing traffic volume and accidents is also driving frequency trends in workers compensation and general liability.
In the assessment and transfer of upstream and midstream energy risks, however, there simply isn’t enough claims history in the Marcellus formation in Pennsylvania or the Bakken formation in North Dakota for underwriters to rely on data to price environmental, general and third-party liability risks.
That’s where Liberty Mutual’s commitment, experience and ability to innovate come in. Liberty Mutual was the first carrier to put together a hydraulic fracking risk assessment that gives companies using this extraction method a blueprint to help protect against litigation down the road.
Liberty Mutual insures both lease operators and the contractors essential to extracting hydrocarbons. As in many underwriting areas, the name of the game is clarity around what the risk is, and who owns it.
When considering fracking contractors, Waters and his team work to make sure that any “down hole” risks, be that potential seismic activity, or the migration of methane into water tables, is born by the lease holder.
For the lease holders, Waters and his team of specialty underwriters recommend their clients hold both “sudden and accidental” pollution coverage — to protect against quick and clear accidental spills — and a stand-alone pollution policy, which covers more gradual exposure that unfolds over a much longer period of time, such as methane leaking into drinking water supplies.
Those are two different distinct coverages, both of which a lease holder needs.
Matt Waters discusses the need for stand-alone environmental coverage.
The Energy Cycle
Domestic oil and gas production has expanded so drastically in the past five years that the United States could now become a significant energy exporter. Billions of dollars are being invested to build pipelines, liquid natural gas processing plants and export terminals along our coasts.
While managing risk for energy companies requires deep expertise, developing insurance programs for pipeline and other energy-related construction projects demands even more experience. Such programs must manage and mitigate both construction and operation risks.
Matt Waters discusses future growth for midstream oil and gas companies.
In the short-term, domestic gas and oil production is being curtailed some as fuel prices have recently plummeted due to oversupply. In the long-term, those domestic prices are likely to go back up again, particularly if legislation allows the fuel harvested in the United States to be exported to energy deficient Europe.
Waters and his underwriting team are in this energy game for the long haul — with some customers being with the operation for more than 25 years — and have industry-leading tools to play in it.
Beyond Liberty Mutual’s hydraulic fracturing risk assessment sheet, Waters’ area created a commercial driver scorecard to help its midstream and upstream clients select and manage drivers, which are in such great demand in the industry. The safety and skill of those drivers play a big part in preventing commercial auto claims, Waters said.
Liberty Mutual’s commitment to the energy market is also seen in Waters sending every member of his underwriting team to the petroleum engineering program at the University of Texas and hiring underwriters that are passionate about this industry.
Matt Waters explains how his area can add value to oil and gas companies and their insurance brokers and agents.
For Waters, politics and the trends of the moment have little place in his long-term thinking.
“We’re committed to this business and to deeply understanding how to best manage its risks, and we have been for a long time,” Waters said.
And that holds true for the latest extraction technologies.
“We’ve had success writing fracking contractors and horizontal drillers, helping them better manage the total cost of risk,” Waters said.
To learn more about how Liberty Mutual Insurance can meet your upstream and midstream energy coverage needs, contact your broker, or Matt Waters at firstname.lastname@example.org.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty Mutual Insurance. The editorial staff of Risk & Insurance had no role in its preparation.