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COVID-19: A lesson for the workers’ compensation industry

Michael Lewis’s new book, The Premonition, is about three characters and their struggle to alert the Nation about the COVID-19 pandemic. The book offers a shocking insight into the mismanagement of the public health care system. The workers’ compensation industry lacked adequate information to prepare for the epidemic properly. It must address this deficiency in the future.

NJ Successfully Targets Employee Misclassification

In response to a report issued by Governor Murphy’s Task Force on Employee Misclassification, the New Jersey Department of the Treasury has made significant strides to deter misclassification by organizations that do business with the State in order to help address the underlying causes that lead to ever-widening income inequality.

OSHA: ETS and COVID-19 - CRS issues an updated report April 2021

The Occupational Safety and Health Administration (OSHA) does not currently have a specific standard that protects health care or other workers from airborne or aerosol transmission of disease or diseases transmitted by airborne droplets. 

NJ Governor Murphy Signs the Healthy Terminals Act

NJ Governor Phil Murphy today signed the Healthy Terminals Act (S989) which creates new minimum wage and benefits requirements for certain Newark Liberty International Airport (EWR) and Newark Liberty International Train Station workers. The legislation will expand access to livable wages and affordable health care for workers at the airport and train station who often cannot afford employer-provided health care plans.

US Supreme Court Will Not Review Air Ambulance Billing Issue

The US Supreme Court  (SCOTUS) will not review the pre-emption issue involving air ambulance billing charges. A Petition for Certiorari that was denied was filed by PHI Air Medical, LLC following the denial of the Texas Supreme Court to honor the full air ambulance billing changes in a workers’ compensation claim.

Medical benefits are a significant factor in the overall costs of most state workers' compensation programs. The ability to contain those costs is at the very heart of the viability of most workers’ compensation systems. Federal preemption of state medical fee schedules and regulations is a prevailing challenge to the patchwork of non-uniform state benefit programs.

QUESTIONS PRESENTED

The Airline Deregulation Act of 1978 (“ADA”) broadly preempts any state law or regulation “related to a price, route, or service of an air carrier.” 49 U.S.C. §41713(b)(1). Air-ambulance companies are federally licensed “air carriers.” Nonetheless, the Texas Workers’ Compensation Act dictates the amounts air-ambulance companies may charge and collect for air-transport services provided to individuals covered by workers’ compensation. Specifically, workers’ compensation insurers need only pay a “fair and reasonable” rate—calculated here to be 125% of the Medicare rate—and air-ambulance companies are forbidden from billing patients or their employers for the service. Given that such schemes dictate what the only party that can be charged must pay to air carriers, the Fourth, Tenth, and Eleventh Circuits have held that comparable state laws constitute impermissible rate regulation preempted by the ADA, but a divided Texas Supreme Court upheld the Texas system at issue here.

The questions presented were:

1. Whether the ADA preempts a state workers’ compensation system that limits the prices an air-ambulance company can charge and collect for its air-transport services.
2. Whether the McCarran-Ferguson Act exempts such a system from ADA preemption.

PHI Air Medical, LLC, Petitioner v. Texas Mutual Insurance Company, et al., US, Docket No. 20-748., Cert. denied,, ___ S.Ct.____, 2021 WL 1602647 (2021).

NJ Governor Murphy Concerned About Economically Straining the Second Injury Fund

 NJ Governor Philip D. Murphy signed the COVID supplementary dependency bill (S2476 approved 4/19/2021) for essential workers and expressed concern over funding the benefits directly from the Second Injury Fund. He urged that alternate revenue proposals be considered going forward.