COVID-19 Vaccination Reaction Claims- Compensable In Texas?

March 10, 2021 By JL Risk Management Consultants

Texas Says Report COVID-19 Vaccination Reaction Claims (Work-Related)

In reading various Workers Comp publications – yes, I do that in the evenings, I came across an article in Business Insurance Work Comp News that caught my eye. The Texas Department of Insurance released a memo on March 2, 2021, that employers should report any COVID-19 vaccination reaction claims to their carrier/TPA by filling out a report of injury.

pic of smallpox COVID-19 Vaccination Claims vial needle

That request piqued my interest enough to cause me to research the memo so that any of our clients or really any employer could have this advice. I had written a few articles on Coronavirus vaccine concerns in the last few months.

TDI Says Not All COVID-19 Reaction Claims

The one area that could leave things up in the air would be “if the reaction was due to an employer-required vaccine.” That statement may cover more ground than one might think – employer required?

The link to the PDF from the TDI can be found here, or the memo can be found below converted from PDF to HTML. Sometimes the PDFs will be moved by the authors and then poof! you receive a 404 error.

The TDI was kind enough to supply an email address for any questions.

_____________________________________

To: Texas Workers’ Compensation System Participants
From: Joseph McElrath, Deputy Commissioner, Business Process
Date: March 2, 2021

Re: Reporting COVID-19 and COVID-19 Vaccine Reaction Claims

Texas Flag COVID-19 Vaccination Reaction Claims raising

Public Domains – Makaristos

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) provides the following guidance to insurance carriers when submitting a First Report of Injury to DWC using electronic data interchange (EDI) for COVID-19 or a reaction to the COVID-19 vaccine.

How should I report a COVID-19 First Report of Injury to DWC?

On March 27, 2020, DWC published guidance advising insurance carriers to submit a COVID-19 First Report of Injury using the International Association of Industrial Accident Boards and Commissions’ (IAIABC) codes for EDI claims reports: “cause of injury” code 83 – Pandemic and “nature of injury” code 83 – COVID-19.

DWC reminds insurance carriers to use these specific codes when reporting a First Report of Injury involving a COVID-19 exposure or infection. Insurance carriers should also clearly indicate whether the claim involves COVID-19 in the incident description field. Following this guidance allows DWC to accurately monitor the frequency, cost, and outcome of
these reported claims.

Should I file a First Report of Injury with DWC if an employee has an adverse reaction to a COVID-19 vaccine?

If a COVID-19 vaccination relates to an employee’s job, and it causes the employee to miss one or more days of work, you should file a First Report of Injury with DWC. Submitting a First Report of Injury to DWC does not mean that a COVID-19 vaccine reaction is work-related or that the insurance carrier is liable for payment.

How should I report a First Report of Injury to DWC that involves an adverse reaction to a COVID-19 vaccine?

Moderna COVID-19 Vaccination Reaction Claims portrait

Public Domain – Airman 1st Class Anna Nolte

The IAIABC and the Workers’ Compensation Insurance Organizations (WCIO) have developed new coding guidance for reporting an adverse reaction to a COVID-19 vaccine.

Insurance carriers should report COVID-19 vaccine reaction claims using the new “nature of injury” code 38 – Adverse Reaction to a Vaccination or Inoculation combined with the “cause of injury” code 83 – Pandemic. Insurance carriers should also clearly indicate whether the claim involves a COVID-19 vaccine reaction in the incident description field
by using language such as “COVID-19 vaccine reaction.” Do not report vaccine reaction claims using “nature of injury” code 83 – COVID-19.

Questions?

Insurance carriers should contact their trading partners to discuss claim EDI reporting requirements. For questions, contact Martha Luevano at 512-804-4858 or [email protected]

____________________________

If you have a working relationship with your carrier or TPA, then they have likely addressed this issue with you in the past. You do have a working relationship – right? If not, start working on that today.

Other states may have the same language built into reporting COVID-19 vaccination reaction claims advisories.

Will Texas Opt Out Of Its Opt Out Program By Joining NCCI

September 25, 2014 By JL Risk Management Consultants

By Joining NCCI Texas Opt Out Could Fade

Did Texas opt out of Its non-subscriber system? Texas has decided to join the Experience Rating System supplied by NCCI. According to a fellow WC blogger, Texas may also look to remove the opt-out provisions in the law for the construction industry. That is a major step in starting to remove the Texas opt out provision for employers.

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One has to wonder if NCCI had an impact on or at least suggested the move to a full non-opt-out system in Texas. The Law of Large Numbers may not be a concern as The Lone Star State is such a large state. Then again, if a certain market segment opted out, then the law may be applicable.

One of the most surprising figures out of Texas is 50% of all construction workers in the state are undocumented immigrants. Specialties like concrete and drywall probably have more than 50 percent, undocumented workers, according to the article.

This may cause the construction companies that opt out to have a distinct price advantage over fully-insured companies when submitting bids on contracts. This situation is not limited to just the construction industries. Any Texas company could use a price advantage.

One has to also ask – if TX decides to end its opt-out program for the construction industry, will Oklahoma follow suit in its opt-out program? This would have seemed far-fetched until the state decided to join NCCI’s rating system instead of their own.

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Texas Officially Joins NCCI System – Good Move Overall

September 24, 2014 By JL Risk Management Consultants

Texas Officially Joins The NCCI System

Texas officially joined the NCCI system today as the Department of Insurance files a petition to adopt NCCI’s Experience Rating Plan Manual.

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Earlier in the year, The Texas Department of Insurance signed order 3455 adopting NCCI’s Statistical Plan for Workers Compensation and Employers Liability Insurance (Statistical Plan), including Texas exceptions. This manual becomes effective for units with policy effective dates January 1, 2015 and subsequent, and is optional for prior policy effective dates.

The state of Texas will also have many exceptions to the NCCI manual. The state may, over time, decide to remove more of the exceptions.

Adopting the manual does not mean Texas cannot reject any part of the NCCI manual. They do not have to necessarily accept the rates promulgated by NCCI. The next few years should be interesting as Texas was very independent in its WC operations.

One area to note is that polices prior to January 1, 2015 may also be affected by the adoption of the NCCI rules.

Wikimedia commons – Lawikitejana

One has to wonder if NCCI will push Texas to not keep the opt-out system which is in place presently in Texas.
See tomorrow’s article on one major step that Texas has taken in the area of construction. Texas has at least started the conversation on not allowing construction firms to opt-out of WC coverage.

Most of the companies that we have consulted with that decided to opt out of WC coverage for their employees have ended in disastrous results once they have a series of claims or a few severe accidents.

West Virginia was very successful in adopting the NCCI manuals and ratemaking process. There have been many reductions in the rates charged to policyholders since the switch to NCCI.

Texas policyholders should see rate reductions in the future. However, the opt-out system may be shown to be a violation of the Law of Large Numbers. This may affect any type of rate reductions.

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Texas – Did Banning Informal WC Networks Cost Employers

March 28, 2014 By JL Risk Management Consultants

WC Networks Cost Texas Employers According to WCRI

WC Networks Cost employers in Texas. Did Texas make a large inadvertent mistake? WCRI recently completed a study CompScope™ Medical Benchmarks for Texas 14th Edition,. One of the conclusions of the study was the growth in medical payments per workers’ compensation claim in Texas was faster than in prior years and more rapid than in most other states in the study.

Wikimedia Commons – Makaristos

The study found fee schedule increases following Medicare updates as required under HB 7, and the 2011 ban oninformal networks drove an increase in prices for medical services, fueling the recent growth in medical payments. A decrease in utilization of non-hospital care slightly offset the increases in prices. I thought I would explore the ban on informal networks. The statutes are included below. The directions from the Texas Department of Insurance (TDI) were for companies that may be an informal or voluntary network to compare themselves to the below law to see if they were either type of network.

My apologies if the statute did not line up properly. After reading over the Statute and then examining the cost/benefit analysis, one has to question whether this was a good idea.

I am thinking the law was enacted to protect the pharmacies from receiving “stacked” network reductions where the pharmacy charges are reduced multiple times by networks unknown to the pharmacy at the time the medications was dispensed to the injured worker.

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Many WC medical providers have become very vocal over “quiet network” reductions and have filed suit or complained vociferously to the WC Board or Commission in their respective states.

If I happen to be off-base with my conclusion, Texas blog readers, please let me know.

One of the two Texas Statutes that ending up costing employers is:Section 408.0281:

Reimbursement For Pharmaceutical Services; Administrative Violation

(a) In this section:

(1) “Informal network” means a network that:

(A) is established under a contract between an insurance carrier or an insurance carrier’s authorized agent and a health care provider for the provision of pharmaceutical services; and

(B) includes a specific fee schedule.

Wikimedia Commons – Dpbsmith

(2) “Voluntary network” means a voluntary workers’ compensation health care delivery network established under former Section 408.0223, as that section existed before repeal by Chapter 265 (H.B. 7), Acts of the 79th Legislature, Regular Session, 2005, by an insurance carrier for the provision of pharmaceutical services.

(b) Notwithstanding any provision of Chapter 1305, Insurance Code, or Section 504.053 of this code, prescription medication or services, as defined by Section 401.011(19)(E):

(1) may be reimbursed in accordance with the fee guidelines adopted by the commissioner or at a contract rate in accordance with this section; and

(2) may not be delivered through:

(A) a workers’ compensation health care network under Chapter 1305, Insurance Code; or

(B) a contract described by Section 504.053(b)(2).

(c) Notwithstanding any other provision of this title, including Section 408.028(f), or any provision of Chapter 1305, Insurance Code, an insurance carrier may pay a health care provider fees for pharmaceutical services that are inconsistent with the fee guidelines adopted by the commissioner only if the carrier has a contract with the health care provider and that contract includes a specific fee schedule. An insurance carrier or the carrier’s authorized agent may use an informal or voluntary network to obtain a contractual agreement that provides for fees different from the fees authorized under the fee guidelines adopted by the commissioner for pharmaceutical services. If a carrier or the carrier’s authorized agent chooses to use an informal or voluntary network to obtain a contractual fee arrangement, there must be a contractual arrangement between:

(1) the carrier or authorized agent and the informal or voluntary network that authorizes the network to contract with health care providers for pharmaceutical services on the carrier’s behalf; and

(2) the informal or voluntary network and the health care provider that includes a specific fee schedule and complies with the notice requirements of this section.

(d) An informal or voluntary network, or the carrier or the carrier’s authorized agent, as appropriate, shall, at least quarterly, notify each health care provider of any person, other than an injured employee, to which the network’s contractual fee arrangements with the health care provider are sold, leased, transferred, or conveyed. Notice to each health care provider:

(1) must include:

(A) the contact information for the network, including the name, physical address, and toll-free telephone number at which a health care provider with which the network has a contract may contact the network; and

(B) in the body of the notice:

(i) the name, physical address, and telephone number of any person, other than an injured employee, to which the network’s contractual fee arrangement with the health care provider is sold, leased, transferred, or conveyed; and

(ii) the start date and any end date of the period during which any person, other than an injured employee, to

fmx.cpa.texas.gov

which the network’s contractual fee arrangement with the health care provider is sold, leased, transferred, or conveyed; and

(2) may be provided:

(A) in an electronic format, if a paper version is available on request by the division; and

(B) through an Internet website link, but only if the website:

(i) contains the information described by Subdivision (1); and

(ii) is updated at least monthly with current and correct information.

(e) An informal or voluntary network, or the carrier or the carrier’s authorized agent, as appropriate, shall document the delivery of the notice required under Subsection (d), including the method of delivery, to whom the notice was delivered, and the date of delivery. For purposes of Subsection (d), a notice is considered to be delivered on, as applicable:
(1) the fifth day after the date the notice is mailed via United States Postal Service; or

(2) the date the notice is faxed or electronically delivered.

(f) An insurance carrier, or the carrier’s authorized agent or an informal or voluntary network at the carrier’s request, shall provide copies of each contract described by Subsection (c) to the division on the request of the division. Information included in a contract under Subsection (c) is confidential and is not subject to disclosure under Chapter 552, Government Code. Notwithstanding Subsection (c), the insurance carrier may be required to pay fees in accordance with the division’s fee guidelines if:

(1) the contract:

(A) is not provided to the division on the division’s request;

(B) does not include a specific fee schedule consistent with Subsection (c); or

Businessman Networks Cost Passing Document To Businesswoman

(C) does not clearly state that the contractual fee arrangement is between the health care provider and the named insurance carrier or the carrier’s authorized agent; or

(2) the carrier or the carrier’s authorized agent does not comply with the notice requirements under Subsection (d).

(g) Failure to provide documentation described by Subsection (e) to the division on the request of the division or failure to provide notice as required under Subsection (d) creates a rebuttable presumption in an enforcement action under this subtitle and in a medical fee dispute under Chapter 413 that a health care provider did not receive the notice.

(h) An insurance carrier or the carrier’s authorized agent commits an administrative violation if the carrier or agent violates any provision of this section. Any administrative penalty assessed under this subsection shall be assessed against the carrier, regardless of whether the carrier or agent committed the violation.

(i) Notwithstanding Section 1305.003(b), Insurance Code, in the event of a conflict between this section and Section 413.016 or any other provision of Chapter 413 of this code or Chapter 1305, Insurance Code, this section prevails.

Added by Acts 2011, 82nd Leg., R.S., Ch. 705, Sec. 3, eff. June 17, 2011.

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Texas Reforms Results Analysis – WCRI – Blogging Live

March 12, 2014 By JL Risk Management Consultants

Texas Reforms – WCRI Conference – Live blogging

The new Texas reforms were presented along with the preliminary results.

123RF

This is a very informative conference-session. The current session is pre- and-post reforms in the state of TX.

This example could be applied to other states with upcoming or in-place reforms

Total costs were lowered post-reform
Medical costs were the drivers for Texas and caused the need for reforms
Utilization of non-hospital services plunged. Usually the utilization rates increase when the medical costs factors are lowered. Other cost factors in Texas showed an increase in utilization vs. the pre-reform years
Heavy pre-authorization requirements
Most impact were noticed in 2011 and 2012 claims
Decrease in chiropractic care (-8.5%). This is a dramatic increase in such a short amount of time.
Only California had higher cost claims that included chiropractic care.
As with CA, TX medical cost containment costs increased, California cost containment became prohibitively expensive
As compared with others states, more monitoring of expenses increase utilization review- this is an expected result that has appeared in most states.

As a side note, I have performed many studies that indicate a decrease in medical rates is counteracted by an increase in utilization. This is on a state-by-state and type of treatment basis. We shall see more results soon on the Texas reforms.

Opt-Out or Non-Subscriber Programs – New Report By Rousmaniere

December 20, 2012 By JL Risk Management Consultants

Opt-Out or Non-Subscriber Report Just Published

A new report was recently released on opt-out or non-subscriber services for Workers Compensation. The report can be found here. The report should be given a thumbs up by all that read it. Please note the report is a very large PDF that will require a PDF reader.

123RF

The report covers the current opt-out system in Texas. The in-depth report also covered the option proposal in Oklahoma. Last year Oklahoma had attempted to get a non-subscriber bill through the Legislature without success.

A prolific Workers Comp author, Peter Rousmaniere, had co-authored the report. He and I discussed some of the findings at the LRP Las Vegas Workers Comp Conference as the report release was imminent. We discuss Workers Comp frequently. Peter has included me in some of his reports. I always take that as a compliment to J&L and this blog.

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Even if you are not involved with opt-out or non-subscriber services, it is worth your time to read the report in full. This may be the face of Workers Comp in the near future. Can Workers Comp really continue on it current path? The answer is very likely – no.

When authors put some much time into a report, I usually do not critique it. The report actually has a few areas of self-critique. The one area that stood out was that no employees that are or have used non-subscriber benefits were interviewed.

Interviewing a few of the claimants may have shown surprising results as the injured employees are issued a Summary of Plan Benefits by their employer. The employee must follow the employer’s rules. These rules are not state-mandated including which injured employees receive benefits.

This is such a cutting-edge area in Workers Comp. The report was a huge effort by all involved – kudos for their effort. If and when Oklahoma passes any non-subscriber laws, the Workers Comp airwaves will be buzzing for weeks.

State of Texas Workers Comp Report Shows Progress and Savings

December 10, 2012 By JL Risk Management Consultants

Texas Workers Comp Report Looks Very Positive

A state of Texas Workers Comp report shows progress and savings. Texas and California always seem to be microcosms of what is occurring in Workers Compensation nationwide. Last week, I came across the “Biennial Report of the Texas Department of Insurance To the 83rd Legislature.”

USA Marfa pano Texas Workers Comp Report panorama picture

Wikimedia Commons – Dschwen

You may want to follow the link to the report as Texas had and addressed many of the Workers Comp concerns that dominate the insurance news nationwide. As I posted last month, due to Texas Workers Comp reforms, overall payments were reduced by 4%. The medical Workers Comp payments were reduced by 2% during a medical inflationary period.

I wanted to cover a few points from the study:

With or without the reforms, Texas has always had a lower injury rate than the rest of the US
Average premium per $100 in 2010 was $1.38 – that is a very low figure
1/3 of all employers in Texas are non-subscribers. I was surprised at that high a % of non-participation.
Certified medical network have spiked in popularity and usage
Certified medical networks resulted in reduced medical costs
Not all medical networks are the same – there was some variability on costs, time to return to work, etc. between each network.
A majority of employers do not use Certified Medical Networks. That should change over time when the obvious cost-reduction figures are reported on medical networks.
Prescriptions for non-needed drugs decreased 54%
Prescriptions for opioids were reduced by 10%.

Some of the study’s conclusions were tentative as best. I did not include those figures. Texas should be given credit for implementing reforms for such a large state.

Texas Workers Comp Payments Decrease Due To Reforms

November 15, 2012 By JL Risk Management Consultants

Texas Workers Comp Payments Are Lowering

The state of Texas workers comp payouts decreased for the first time in years. According to WCRI, the payments decreased overall by 4%. This is a very large one year decrease in the current Workers Comp environment.

Picture Of Hand Thumbs Down Texas Workers Comp And Bar Graph Decrease

StockUnlimited

Texas enacted a large group of workers comp reforms in 2008. As I have mentioned often, the results of a reform measure will not usually appear fully until three to four years after a new law or court case changes the WC environment in a certain state.

Medical payments decreased by 2%. I decided to look into this further as there seemed to be a few variables that were not mentioned as hospital network payments had actually increased. I found this article on a major impact of the Texas reforms.

The article said it best –Evidence-based treatment guidelines are one method used to control medical costs in the workers’ comp system.The Texas Department of Insurance announced that, as of May 2007, use of the Official Disability Guidelines – Treatment in Workers’ Compensation was required for the treatment of all injured workers not covered by a certified health care network.

Businesswoman Texas Workers Comp Drawing Graph Chart Decrease

StockUnlimited

Low back injuries — decreases for the likelihood of surgery, physical medicine, chiropractic manipulation, other radiology, or an injection; a decrease in the number of visits for physical medicine, chiropractic manipulation, other radiology or injections; an increase in the number of services per visit for physical medicine; and a decrease in the number of services per visit for chiropractic manipulation.

I found it interesting that WCRI itself had said in the original article the recession had an effect on the WC environment. However, an article on the WCRI website written by Risk & Insurance on the same WCRI study pointed out what I consider the real reason for the decrease in benefits.

Having better medical control of the low back injuries was likely the cause for the decreased payouts on both indemnity and medical benefits.

One area that I disagreed with the original WC article by WCRI is the recession is the cause of any decrease in indemnity payments. As I am originally from that part of the country, I can attest that there is an oil boom of sorts in TX that would easily offset any effects of a recession.