Workers' Compensation and the Affordable Care Act (PPACA)

Well, the United States Supreme Court has now spoken and it appears the Patient Protection and Affordable Care Act (PPACA) of 2010 is now the law of the land. I don't want this to be a political discussion on the wisdom of the provision itself. As Chief Justice Roberts observed in the majority opinion, the voters are the ones ultimately responsible for making those sorts of decisions. But PPACA will most likely have some ramifications on our day to day workers' compensation practice in Florida and I wanted to bring up two specific areas which immediately come to mind.

The first came up quite literally right as the opinion was released yesteday while I was attending a private mediation. In my case, an injured worker was in need of low back surgery. There was no dispute that the surgery was medically necessary. My client wanted to explore global settlement of the claim short of the employee going forward with the surgery. This employee had a good job skill set, was less than 40 years old, presentable, and just a nice person in general. In other words, she seemed like someone who would not have a lot of trouble finding a job. Her primary concern with settlement, of course, was her future medical needs and the surgical recommendation.

This is not an uncommon problem, as we all know. The employee, rightfully, was worried that she might not be able to obtain health insurance in the future from another source. Even if she should find a job, her new health insurance carrier might impose a waiting period or some sort of overall cap on the coverage for her preexisting injury. Enter PPACA. Such discrimination is no longer permissible, for all intents and purposes, under the Act. As a result, the probability that the employee would be able to obtain health coverage for her prexisting condition in the future was much higher, this making settlement more feasible.

My claim did not settle, alas, but the mediation was an object lesson in the immediate impact PPACA could have on our day to day practice.

The second area PPACA implicates, by its very nature, is Medicaid. While the "individual mandate" provision of PPACA survived constitutional scrutiny, thus requiring all indiviudals in the United States above a certain income threshold to purchase health insurance or pay a penalty, the Medicaid expansion portion did not. In short, this provision was intended to greatly expand the class of individuals eligible for Medicaid and to increase the Medicaid funding the states received from the federal government accordingly.

Although this provision was struck down (Chief Justice Roberts described it as a "gun to the head" rather than a meaningful choice given to the individual states) it seems a foregone conclusion that it will be ressurrected in a more constitutionally acceptable form (and the opinion basically spelled out how that could be done). If Florida chooses to accept the additional funding, it could greatly expand the number of individuals enrolled in in Medicaid.

For the most part, as praticioners, we dont have to deal with Medicaid issues in workers' compensation. This is for the simple reason that Florida's bar to entry is low, from an income standpoint, that anyone with a job almost certainly cannot qualify. Since it is (in theory, at least) impossible to have a workers' compensation claim without a job, the two systems rarely cross paths. However, a potential expansion of Medicaid changes that dynamic.

We are all familiar with the nightmares which Medicare regularly causes all of us when we are trying to settle claims. Medicaid presents some similar issues. LIke Medicare, Medicaid is deemed secondary to all other sources of medical benefits, including workers' compensation, and a lien is triggered if Medicaid pays for treatment which should have been paid through workers' compensation. Although the recovery rules and methods are not quite as draconian or involved as Medicare's, they still present a potential new hurdle which has to be considered.

In any case, new interactions will undoubtedly arise between PPACA and Florida workers' compensation in the future, this post is meant to discuss just the two which immediately jump to mind. We'll need to keep an eye on these situations and evalute their impact on our claims handling going forward.

Brian D.

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