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Can Employers Mandate COVID Shots?

Just when many of us were beginning to feel that COVID vaccinations were improving the landscape of our lives in 2021, we now have the delta variant surge to worry about. This variant is much more infectious – perhaps as contagious as chickenpox, according to an internal CDC document

On July 27, the U.S. Centers for Disease Control and Prevention (CDC) issued a recommendation that everyone in areas of high COVID-19 infection rates wear masks in public indoor spaces REGARDLESS OF VACCINATION STATUS.

As of that same date, 49 percent of Americans have been fully-vaccinated, while 7.8 percent of people have only been partly vaccinated against COVID-19. Whether herd immunity, widely considered to be between 70 percent and 90 percent, is possible in this country is now debatable. As mentioned earlier, the variants that continue to evolve, along with the persistent hesitancy of vaccinations will make herd immunity difficult, if not impossible.

Dr. Kevin Kavanagh, a member of Infection Control Todays® Editorial Advisory Board, recently wrote: “The virus that we’re currently dealing with has a lot of room to continue to mutate, and to become more infectious and more lethal.” His last few statements, however, were most alarming to me: “I am convinced this virus is about one or two iterations away from completely avoiding the vaccine. And remember, we have the lambda variant and the kappa variant which are sitting out there in the wings, waiting for immunity to drop and possibly cause another wave.”

With this latest delta variant surge, more employers are justifiably looking at options to either strongly insist or incentivize their employees to get vaccinated. Should employers use the stick or the carrot to move the needle on vaccinations?

Do Employers Have a Legal Right to Mandate COVID shots?

Overall, can employers require that employees get vaccinated for COVID? The quick answer is “yes.” 

Recently, the U.S. Department of Veterans Affairs, the State of California, New York City, hospitals and nursing homes, colleges and universities have introduced COVID-19 vaccine mandates into the workplace, including masking protocols. This past week, President Biden announced that federal employees and contractors must be vaccinated or be tested once or twice a week. 

Government agencies and private employers can require their employees to get vaccinated as a condition of working there. Employees can certainly refuse to be vaccinated, but they have no right to legal protection. However, there are a few exceptions. Employees with medical or religious reasons may seek reasonable accommodation under civil rights laws, but such accommodation must not constitute an undue hardship for the employer. These employees could get tested weekly, wear masks while in the office, or work remotely. 

For those employees who are unable to meet these exceptions, they will likely need to seek different employment opportunities.

On July 6, the Department of Justice Office of Legal Counsel issued an opinion that federal law does not stop private businesses or public agencies from mandating COVID vaccines. This opinion comes two months after the Equal Employment Opportunity Commission (EEOC) released guidance (May 28) that said U.S. employers could require all employees who physically enter an office space to get vaccinated.

Google and Facebook have recently implemented requirements that any employees returning to the office must first be vaccinated. Google is also extending its work-from-home policy until October 18. Should this policy change, employees will be given at least a 30-day notice.

Can States Ban Vaccine Mandates?

The EEOC guidance has pushed lawmakers in some states to introduce legislation prohibiting businesses from mandating COVID-19 vaccinations as a condition of employment. According to the National Academy for State Health Policy (NASHP), Iowa had two bills introduced that would ban employer mandates, but neither was enacted. 

Non-Mandate Strategies that include Incentives

This discussion is really centered around using the carrot or stick approach. Mandating vaccinations at the workplace serves as the stick, while using carrots to incentivize employees to get vaccinated may serve as the middle ground for many employers. Short of mandating that workers are fully-vaccinated and having mask protocols, what options do employers have to keep employees safe while at the workplace? 

One option is to mandate vaccinations for certain classes of employees, and then offer carrots to all other employees. As an example, Walmart announced that all of its corporate staff employees and regional managers must be fully vaccinated by October 4. However, for store and warehouse employees, Walmart is offering a $150 vaccine bonus (carrot).

The May 28 EEOC guidance provides updated and expanded technical assistance on how the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) affect establishing policies when offering incentives to employees to get the COVID-19 vaccine. In short, the employer may offer an incentive to employees for voluntarily obtaining a vaccine that is administered by the employer or its agent if the incentive is not so substantial as to be considered ‘coercive’. 

Unfortunately, the EEOC guidance does not state a standard for what would be considered ‘coercive’, which may deter employers from arranging onsite vaccinations to provide an incentive. However, the EEOC guidance states no specific limit on incentives for vaccinations that are NOT administered by employers or their agents, which can actually provide a reasonable level of comfort for employers who wish to offer cash or gift card incentives.

The EEOC clarified that, under GINA, the employer may offer employees incentives for getting vaccinated, but the employer cannot acquire genetic information while administering the vaccines. Additionally, employers should have protocols in place to ensure that vaccination information is kept confidential – such as proof of vaccination – and be stored separately from regular personnel files. 

RECOMMENDED READING: The Society of Human Resource Managers (SHRM) provided an article on four key takeaways from the EEOC guidance.

Summary

Should employers use a stick or carrot to increase a vaccinated workplace? It really depends on the organization’s culture, its geographical location, and the level of trust that an organization has with its employees. Similar to the elongated pandemic, the answers to this Rubik’s Cube are evolving and somewhat complicated – but need immediate attention.

In an abundance of caution, it is recommended that businesses seek legal guidance about any potential associated hurdles of mandating vaccinations, in addition to considering other strategies in lieu of fully implementing a vaccine mandate.

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Ending Bad Medical Billing Practices Requires a Tsunami of Patients to Speak Up and ACT!

Ending Bad Medical Billing Practices Requires a Tsunami of Patients to Speak Up and ACT!Talk to any stranger about the cumbersome medical bills that we encounter, and you will surely find something in common with that person – regardless of political party, religion, gender, ethnicity or place of residence. The fact is, whether or not you have health insurance, few of us are happy with the hefty medical bills we are prompted to pay.

Recently, a book was published that addresses how patients should carefully scrutinize their medical bills before paying them. The book, “Never Pay The First Bill and Other Ways to Fight the Health Care System and Win,” was written by ProPublica investigative journalist, Marshall Allen. Many of Allen’s resources and strategies to demand fair prices make intuitive sense…but it requires patience and persistence from each of us.

Price gouging continues to be a huge reason why the U.S. spends more money on healthcare than any other wealthy country. Seeking care requires one to navigate a complex system that too often provides unnecessary treatment, elicits erroneous medical bills that require higher cost-sharing with patients, and necessitates complicated communications with insurance companies, hospitals and other care professionals. 

Medical Debt

About one in six Americans have medical debt in collections. Sadly, this number appears to be increasing. A good reason – other than being uninsured – is that a rising number of Americans are enrolled in high-deductible health plans (HDHPs). HDHPs are commonly used with health savings accounts (HSAs), which are tax-free spending accounts that help people pay for their out-of-pocket costs. However, the HSAs are typically funded by the employee, reducing their disposable income for other essential items, such as food and housing.

According to a 2018 Survey of Income and Program Participation (SIPP), 19 percent of U.S. households carried medical debt – costs that people are unable to pay up front or when they receive care. The median amount owed by households was $2,000.

A CNBC report from 2019 indicated that two-thirds of people (66.5 percent) who file for bankruptcy cite medical issues as the reason. In fact, an estimated 530,000 families turn to bankruptcy each year because of medical issues and bills.

Below is a medical debt breakdown by SIPP based on race, education level, family composition, region and poverty status.

How Common are Errors in Medical Bills?

Most people who take time to review their medical bills say they contain errors. Whether we are charged for services or procedures that were not performed, or upcoding, which is assigning an inaccurate billing code to a medical procedure or treatment which will increase the cost to the payer(s). Plain and simple, upcoding is nothing short of fraud. Much too often, patients unknowingly pay for these ‘mistakes.’

According to a July 6 Wall Street Journal article, after “studying thousands of prices at hundreds of hospitals,” many hospitals charge top prices to uninsured patients who must pay cash out of pocket. The difference of payment required between those insured and those uninsured are substantial. Even those who have insurance may find their policy will not cover a particular procedure, leaving the individual to assume the entire billed amount on their own. This finding is not terribly earth shattering, as it has been street knowledge for years that insurers are able to drastically reduce billed charges down to a more ‘reasonable’ amount. But what insurance companies have ‘negotiated’ to pay hospitals is still multiples higher than what Medicare pays these very same hospitals for the same procedures.

Based on research, medical billing errors are so frequent that four out of five bills contain at least minor errors. Insurance companies may find some of these errors, but ultimately, most medical claims are auto-adjudicated, which means most errors fall through the cracks at the insurance company, leaving patients with unfair bills to pay. Marshall Allen asks both a fair and fundamental question: Who are the REAL customers of the insurance company – the hospitals and physicians, or those who actually pay for the insurance coverage?

What You Can Do to Combat Medical Bills

Allen does a wonderful job of describing what you can do when confronted with medical bills that appear to be unreasonable (most are, by the way). Primarily, Allen recommends that people always request an itemized medical bill from the hospital and other medical providers. This bill should include a list of all the charges that add up to the total, in addition to including the billing codes – also known as Current Procedural Terminology (CPT) – that the provider used when they filed the insurance claim on your behalf. With these itemized billing codes, you can perform your own research on what is considered to be ‘fair’ prices. Yes, this process can be intimidating, even for those of us who are tangentially involved in the healthcare industry.

Itemized bills, by the way, are not terribly common in the U.S., primarily because patients assume and expect their insurance company to process the bills to ensure accuracy and appropriateness. This is a big assumption that may not happen. If more Americans would request an itemized bill from hospitals and other providers, it would force billing departments to make this a standard procedure. If not, people can insist on legislation in their states or nationally to ensure that every hospital bill is itemized. By doing this, more transparency will force the billing practice to become more accountable to payers and patients.

Through his research, Allen has found that hospital bills can be negotiated down to a more reasonable amount, whether through collection agencies who are hired by hospitals, or by ‘debt buyers’ who purchase the hospital debt at pennies on the dollar.  Debt buyers will subsequently discount the list price greatly in order to profit from what they paid the hospital. According to one source quoted by Allen, people can get about an 85 percent discount off the list price of the debt. This is quite substantial.

Closing Remarks

Because Americans pay far more per capita for our healthcare, this book is a must read. Without giving away Allen’s ‘secret sauce’ within this blog, this book should be purchased and read cover to cover. Marshall Allen was also a guest on Reconstructing Healthcare, where he describes his book (audio below). Information gleaned from resources like these will make it easier for patients, employees and employers to more confidently push back on our perverse health system, and actually win!  

 

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Role of Government in Healthcare – Has a ‘Tipping Point’ Been Reached?

Has a ‘Tipping Point’ Been Reached on the Role of Government in Healthcare?With great interest, I read a newly-released report by the Kaiser Family Foundation (KFF) and the Purchaser Business Group on Health (PBGH) on how corporate executives view the role of government when controlling health costs. Let me just say, the findings are not a flattering compliment to the status quo.

As we have found in Iowa and all over the country, healthcare costs continue to climb, year after year. In the past, employers have relied on private insurers and the quasi ‘market system’ to stem the tide of unaffordable healthcare costs, eschewing government regulations that would likely control how much providers are paid. As we know through Medicare and Medicaid, the government is able to reimburse providers considerably less than private payers.

This new survey of over 300 large private employers with at least 5,000 employees was important for yet another reason. The surveyed respondents were corporate leaders in key positions, such as CEOs, CFOs, COOs – individuals who have powerful decision-making roles within their organizations. They are prone to influence the trajectory of their organizations in the future. Equally impressive is the nice mix of industries represented: Agriculture, Construction, Financial Services, Manufacturing, Mining, Retail Trade, Services, Telecommunication, and Transportation & Distribution.

Key Findings

The overall takeaway is that a large share of corporate leaders are likely to SUPPORT government efforts to control health spending. Only a small share of respondents would oppose government regulations. 

As in the past, corporate leaders indicated they will continue to implement value-based payments, shift more costs to employees through plan designs and payroll-deductions – and find other ways to control their health costs – including direct-contracting relationships with health providers. But many leaders acknowledge that these measures have only been marginally successful, and despite conventional wisdom, large employers have little market clout to control their own costs.

This survey, therefore, sheds light on a new awakening that large employers may now have:

  • Bigger Role By Government – 87 percent of surveyed corporate officers believe the cost of health benefits will become unsustainable over the next 5 to 10 years. In fact, 85 percent indicate that the government needs to take on a bigger role in controlling costs and providing coverage.
  • Government Action on Hospital Prices – 78 percent of leaders expressed some level of support for government action on hospital prices, particularly in areas that have limited hospital competition. Of huge importance, less than five percent opposed these regulations.
  • Limiting Drug Prices – Surveyed leaders are equally supportive of having government limits on drug prices.
  • Public Insurance Option – About two-thirds (65 percent) of corporate leaders indicated having some level of support for a public insurance option for their employees. Additionally, a large majority support lowering the age for Medicare eligibility.

According to the surveyed executives, some advantages to having a greater governmental role in coverage and costs are:

  1. Employers are relieved of the responsibility and the costs of managing health benefits (61 percent).
  2. May enable the government to hold down costs (61 percent).
  3. May be able to increase consumer choices by offering public plans (e.g., public option or Medicare buy-in) to compete with private plans (47 percent).
  4. Might reduce administrative costs (29 percent).

Disadvantages include:

  1. Government doesn’t have a great track record of running big programs like this effectively (43 percent).
  2. Since the health care industry contributes so much money to political campaigns, lawmakers are never going to take steps to reduce costs (41 percent).
  3. Employers might not have the ability to tailor health benefits to their employee needs (30 percent).

Employers are in the Healthcare Business

Warren Buffett once said that “General Motors is a health and benefits company with an auto company attached.” In fact, GM spends more on healthcare than steel to make cars. Starbucks, as another example, spends more on healthcare than coffee beans. For most employers, after payroll, healthcare is the second largest expense. Whether employers like it or not, this puts employers smack in the center of the healthcare business.

It remains to be seen whether corporate leaders will put lobbying and advocacy energy into healthcare legislation that pushes for more government regulations on healthcare pricing. But if this latest survey is an indication of a new tipping point on the horizon, this could be a catalyst for real change. Of course, health providers and insurers will lobby hard to keep this from happening.

Executives of large organizations have historically been vocal on healthcare costs, but primarily resistant to increased government regulation. If employers no longer wish to be in the healthcare business, or at least, not quite like they have been in the past and present, their formidable voice for larger government involvement may become too loud for Congress to ignore.

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