Safe Patient-Handling Rules Irritate Both Insurers and Labor

Thursday, July 21, 2016 | 0

New York state regulators have decided to go with a “carrot” approach in implementing legislation aimed at reducing the number of injuries to health care workers caused by lifting patients. 

The Department of Financial Services on Wednesday gave notice in the New York State Register that it has adopted emergency rules to implement a state law passed in 2014 that requires workers’ compensation carriers to grant premium reductions, or credits, to hospitals and health care organizations that establish safe patient-handling programs. Those credits are part of a larger legislative package that also requires hospitals, clinics and other health care facilities to adopt safe patient-handling programs.

While stakeholders laud such programs in general, labor advocates aren't happy with the way the DFS has set up the premium discount component. The rules require the state's rate service organization, the New York Compensation Insurance Rating Bureau, to set the amount of the credits and establish the manner in which they are applied through the rating manuals it files each June. No minimum amount for the discounts is stated in the rules.

“This is a deeply disappointing development,” said Mario Cilento, president of the New York AFL-CIO, which he said led a multi-union effort to get the Safe Patient Handling Act passed in 2014.

“Now, here we are two years later and the DFS is placing the responsibility of determining the amount of the rate reduction with NYCIRB, which is funded by workers’ compensation insurance carriers,” he said.

NYCIRB officials could not be reached for comment Wednesday. A receptionist said the staff was away for a conference.

Under the proposed rules, NYCIRB must by June 1 of each year file with the state superintendent of financial services reports detailing indemnity and medical losses, policy year payrolls, indemnity claim numbers and any other information the DFS superintendent might require.

The superintendent then must evaluate the results of the reduced rates for employers with safe patient-handling programs, including changes in claim frequency and costs, and then report the findings to the Legislature by Dec. 1, 2018, and again two years later.

The public has until mid-September to comment on the new rules but can’t stop them. DFS is adopting them on an emergency basis without a public hearing so that the agency can comply with the 2014 legislation, which made New York the 12th state in the country to mandate some form of safe patient-handling protocols.

While labor advocates worry that the state isn't doing enough to make sure employers actually implement the required safe patient-handling programs, insurers are worried about the mandated rate reductions for the employers that do. Industry representatives said the discounts should be based on loss experiences and not mandated reductions based on the mere implementation of programs that might not meet state standards.

The American Insurance Association said it supports such programs and believes they potentially can reduce workers' compensation claims.

“However, providing a credit upfront can be problematic from an actuarial standpoint as it likely will not reflect actual claims experience,” said Alison Cooper, the association’s vice president of state affairs. “All employers will ultimately end up effectively subsidizing this credit in order to ensure that there is sufficient premium collected in the aggregate. Additionally, we remain concerned about the verification and reporting requirements, which amounts to a huge administrative burden that will only add increased costs to the system.”

The Property Casualty Insurers Association of America said that without question, OSHA data show that nurses and nursing assistants have higher injury frequencies than the national average, mostly back injuries from lifting patients.

And the group agrees that safe patient-handling programs might reduce claim frequency and severity, and justify rate reductions.

“However, there is no guarantee that an adopted safe patient-handling program will be fully or partially complied with,” said Trey Gillespie, PCI's assistant vice president of workers’ compensation. “Consequently, it is better to let actual loss experience dictate rates rather than mandate rate reductions based on the presence of a safety program that may not be complied with. (Actual loss experience) creates an incentive for employers to make sure that appropriate safety rules are followed.”

There's no question big dollars are at stake. Safety National, which sells excess workers’ compensation, deductible casualty, loss portfolio transfers and reinsurance, puts annual workers’ comp losses at $7.4 billion from patient-handling injuries alone.

The U.S. Bureau of Labor Statistics says in 2014, nursing assistants were ranked behind police officers, sheriff's deputies, firefighters, highway maintenance workers and corrections officers in the incidence rates for nonfatal occupational injuries and illnesses involving days away from work. Nursing assistants suffered 372.5 lost-time injures for 10,000 workers in the industry, compared to a national incidence rate of 107.1.

The Department of Financial Services did not return telephone calls and emails seeking comment.

The New York State Nurses Association is working with hospitals to help them implement the new law and said it will improve employee safety.

“We’re certainly pleased that the law gives the carrot of these decreased rates for employers who implement successful safe patient-handling programs,” said Lisa Baum, the association’s occupational health and safety representative. “But you can have all the laws in the world, but what good are they if you can’t enforce them? It would be most effective if that carrot were matched with — for lack of a better word — a stick that forces an employer to comply.”

District Council 37, New York City’s largest public employee union and an advocate for direct-care and indirect-care workers in the city’s public hospitals, said it was part of a coalition that spent more than a decade in getting the Safe Patient Handling Act passed into law.

The coalition comprises the New York State Zero Lift Task Force, which includes health care workers, administrators, patient advocates, union representatives, and safety and health professionals who train managers and frontline health care providers in safe handling principles.

“The bottom line is the law has no teeth, no enforcement features in place to go in and tell employers that if you don’t have a good program, we’re going to issue you a fine. It makes it very difficult to make sure programs are effective,” said Guille Mejia, District Council 37 director of safety and health. “The only benefit is that an employer is going to get a reduction in their rates.”

Mejia also said the Department of Financial Services and the Department of Public Health are not communicating with each other in implementing the act, and that there’s no point person to field questions from stakeholders.

Robert Grey, an attorney who chairs the New York State Workers’ Compensation Alliance, said that in the past, the state has offered discounts to employers with safety, drug and alcohol, and return-to-work programs but haven’t made those discounts worthwhile to the business community.

“You would think employers wouldn’t need much of a carrot to get them to do this, because they bring in equipment and a safe patient-handling program, and workers’ comp claims go down in short order,” Grey said. “They recover their investments in two to five years and then reap the savings forever going forward. It makes good economic sense for them to do that, but for some reason they don’t.”

Investments in safe patient-handling include permanent or portable lifts, transfer sheets and other equipment. There’s also training on equipment use and maintenance, implementation of a “minimal lift” policy that eliminates manual handling whenever possible, and a dedicated “lift team” — often burly workers who travel throughout the hospital moving patients with proper equipment.

New York's law includes a provision that requires health care facilities to allow employees to refuse to lift patients if they believe that it will put them at an undue risk of injury.

Public Citizen, a consumer watchdog, said safe patient-handling programs not only prevent injuries, lost time and workers’ comp claims, but they comfort patients who worry about being dropped and tearing muscles.

“These are no-brainers,” said Emily Gardner, Public Citizen’s worker health and safety advocate. “However, a lot of hospitals are resistant to it because they’re focused on the short-term costs of implementation.

“The benefits are innumerable,” she said. “There should be no barriers to enacting what should be a commonsense reform.”