By Seth Klamann
Via Wyoming News Exchange
CASPER — Several attorneys and labor officials have raised alarm about an air ambulance bill that the Wyoming Legislature will consider, warning that it unravels the grand bargain of workers’ compensation and will leave injured workers with hefty medical bills.
“I just think it’s a breach of trust between industry and labor,” Cheyenne attorney George Santini said. “It’s breaking the promise that was made, and the promise that was made was that if you’re injured on the job, we’ll take care of you.”
What this bill would do, he said, is say: “If it’s too expensive, you’re on your own.”
The measure in question is House Bill 35, a product of the Joint Labor, Health and Social Services Committee. It would essentially offer air ambulance companies a choice in terms of receiving payment for transporting injured workers: Take roughly double the Medicare reimbursement rate, or go bill the worker directly for the rest, a process known as balanced billing.
It’s a product of a yearslong lawsuit between the state and four air ambulance companies, which challenged the state’s set fee schedule for transports. The companies successfully argued that the fee guidelines were preempted by the federal Airline Deregulation Act of 1978.
Last week, Rep. Eric Barlow, the committee’s co-chair, said the bill was an attempt to protect workers from the exorbitant bills that are common of air ambulances. One of the companies that flies in Wyoming and sued the state, Air Methods, was charging $49,800 for an average flight in America in 2016. The transports cost the company between $6,000 and $13,000 per trip, according to a federal report from 2017.
Barlow and officials with the state’s Department of Workforce Service said the bill would give air ambulance companies more money than they would have received under the fee schedule and that they would be incentivized to take the doubled Medicare rate, rather than going after the injured worker, because the state would pay promptly and with certainty.
But attorneys familiar with the issue disagreed.
“Air ambulances aren’t going to take that little amount of money,” Casper attorney Dallas Laird said with a scoff. Under the bill, the rate would be over $10,600 for a helicopter ride and roughly $9,100 for a plane ride, with additional per mileage rates.
Richard Mincer, a Cheyenne attorney who represents the air ambulance companies in the lawsuit against the state, said that the workers’ compensation program was based on the premise that workers would not be charged for medical costs for an injury incurred on the job. In exchange, the workers lost the ability to sue for negligence.
This bill, he said, would unravel that by allowing providers — in this case, the air ambulance companies — to go after the injured workers if they decided to decline the doubled Medicare reimbursement.
“So the idea that this bill is going to do anything to protect workers is completely, flat-out, factually wrong because the workers don’t face any exposure to medical bills as we sit here today,” he said last week. “This bill changes that.”
Labor advocates expressed similar alarm. Rep. Stan Blake, a Green River Democrat and union railroad conductor, said he was “real concerned” about the bill and said the state’s workers’ comp fund was flush.
“I would hate to see somebody lose their life because we’re squabbling over the price of an air ambulance,” he said.
Travis Deti, the executive director of the Wyoming Mining Association, said last week he was still studying the bill. But he said he had “some significant concerns” at first blush.
“We don’t want our miners, an injured miner, on the hook just because workers’ comp doesn’t want to pay the bill,” he said. “We’re going to see how the debate unfolds and visit a little bit with the legislators and see where this goes.”
Jason Wolfe, the interim deputy director of the Department of Workforce Services, said the bill was drafted with the sprawling litigation in mind. He said the 10th Circuit Court of Appeals had indicated that the part of the state statute that was preempted by the federal airline law was the balanced billing provision, not the fee schedule that capped payments to air ambulances.
In other words, the part of the law that was at issue was the prohibition on directly billing the injured worker, a crucial part of the grand bargain that is workers’ compensation.
“This is not where any of us want to be,” Wolfe said. “Unfortunately, the litigation has really pushed us to this point.”
The opinions of the courts suggest otherwise. In a filing from August 2017, the 10th Circuit wrote that they agreed with a lower federal court that the “rate schedule for ambulance services (is) preempted by the Airline Deregulation Act” as set by the state. The air ambulance cost capping was again deemed void.
The 10th Circuit did reverse the lower court’s decision to force the state to pay 100 percent of air ambulance costs. But it did not strike down the direct balanced billing prohibition; it said only that the issue was one for state lawmakers and judges, not a federal appellate court.
The Wyoming Supreme Court, meanwhile, ruled in November that “the statute required the (state) to pay (the four air ambulance companies) the full amount of their billing for air ambulance services.”
Stated another way: The federal appellate court said the issue of whether the state can prohibit balanced billing falls to a state court or the Legislature. The highest state court ruled that the Department of Workforce Services had to pay all air ambulance costs for injured workers, as required by law.
A follow-up email to a Workforce Services Department spokeswoman was not returned Monday. In an email, Barlow, the committee co-chairman, wrote, “Yes, there are legitimate concerns to be considered and we will be receptive to them.”
According to the fiscal note attached to the bill, the measure would save employers in Wyoming about $4 million a year in workers’ compensation premiums. The state spent about $19.6 million in air ambulance fees from 2014 to 2017. Had this bill been in place over that period, with the doubled Medicare rate and balanced billing in effect, the state would’ve saved $15.4 million.
Wolfe acknowledged that the workers’ compensation fund has just over $2 billion in it. But he said that figure is misleading because those funds are attached to existing claims.
He added that should the air ambulance companies reject the doubled Medicare rate and go after the worker, that injured person would receive the Medicare funds to help offset the cost.
Still, even with that amount provided, an injured worker would likely have a difficult time paying an air ambulance bill. According to court filings, injured worker-related life flights in Wyoming routinely topped $30,000.
“The basic problem is the average Wyoming person who gets injured somewhere has no insurance for (an air ambulance) and can’t afford it,” Laird, the Casper attorney, said. “Nobody can afford those kinds of bills. It leaves them with losing their house or getting their wages garnished or having to take bankruptcy.”
Laird said that if the Legislature wanted to allow balanced billing, then it should allow injured workers to sue their companies for negligence. That’s currently prohibited by the grand bargain of workers’ comp and would completely unravel the compromise, but Laird said that workers won’t be able to afford the bills otherwise.
He also floated requiring employers to have air ambulance insurance, even giving them the option of purchasing coverage for their employees or facing a negligence suit.
In a blog post, Michael C. Duff, a law professor at the University of Wyoming and workers’ comp expert, argued that the bill would violate the Wyoming Constitution and could also be challenged on the grounds that it fell afoul of the same federal law that it’s trying to avoid.
“It is not difficult to anticipate the grisly possibility of a worker adamantly refusing air ambulance services, because of a realization that he or she will be stuck with thousands of dollars of expense, and dying during lengthy ground transport,” he wrote. “I also imagine that counsel for air ambulance companies will be factoring in added expense occasioned by pursuit of destitute injured workers in Chapter 7 bankruptcy proceedings.”