Imagine you’re stuck in this horrible situation: while driving on the job you are seriously injured many miles from a hospital. When an ambulance finally arrives, the EMTs decide you need to be transported to the nearest medical facility by helicopter.
If you are unconscious the decision is made for you, and you are airlifted to a hospital. But if you are awake, you know that under a law the Legislature passed to supposedly “protect” injured workers, you could be stuck with a bill of at least $30,000 if you go by helicopter.
For fiscal reasons you decide to take the much slower ground ambulance instead. And on the way to the hospital, you die.
This scenario is quite possible under House Bill 35 Worker’s compensation-air ambulances, which would remove Wyoming’s constitutional guarantee to injured workers that all their medical care costs — including first aid and emergency treatment — will be paid by workers’ compensation.
It’s a misguided effort by the Joint Labor, Health and Social Services Committee to save the state money by paying air ambulance firms a fee far lower than they charge for such services.
If it becomes law, the state’s Workers’ Compensation Division would pay twice the amount Medicare would pay for emergency air transportation. It also would allow companies to sue the injured worker for payment if they do not take the state fee.
It seems like a good deal for the air ambulance companies, right? It isn’t. The new legislation would cap the state’s payment at about $12,000, depending on the mileage and severity of the injuries. Air ambulance services routinely levy charges much higher than that. The average emergency medical flight costs between $30,000 and $50,000.
Wyoming lost a lawsuit last year that was filed by four air ambulance companies that objected to the state’s practice of only paying a maximum of $3,900 per flight. House Bill 35 is the Legislature’s initial attempt to fix the legal problem without having to pay the full amount companies charge.
The bill’s supporters believe companies would prefer prompt, reliable payment from the state — even at a lower rate — to the uncertain, costly and time-consuming process of collecting from the worker. “But there’s no way the ambulance companies are going to accept that low amount,” University of Wyoming law professor Michael Duff said in an interview.
Why is he so certain? Because under federal deregulation of air services, they don’t have to. According to a federal study of the issue, companies spend an average of between $6,000 and $13,000 on each call. The flights require a staff of four pilots, four nurses, four paramedics and a mechanic.
But they can charge whatever they want to because the going rate for air ambulance service isn’t competitive. They all generally charge the same amount. And guess what? Federal law prohibits states from regulating air ambulance fees, which is precisely what the state of Wyoming is trying to do.
Under HB35, if a company refuses to accept the state’s maximum offer, it is expressly authorized to send the bill to the injured worker. But since 1915, workers have been protected from such debts after a 1914 amendment to the Wyoming Constitution cleared the way for legislation establishing the workers compensation system.
In exchange for giving up the right to sue their employer, that amendment has guaranteed that a worker injured on the job has all emergency medical bills paid by the workers’ compensation system, Duff noted. It’s part of the quid-pro-quo agreement the state made between itself, employers and employees. It can’t be broken.
But HB35 would unconstitutionally shatter the compromise, Duff contends, and leave an injured worker holding the bag. The worker could not sue his or her employer to recover the total cost of the air ambulance flight, but the bill would allow an ambulance company to legally sue the injured employee to recover its costs.
Now, we don’t know for sure if a company would decide to go after the injured worker because of the legal expenses it would occur. But the whole purpose of the workers compensation system is to make certain that a worker dealing with the pain and suffering — and everything else that recovering from an injury entails — doesn’t have to pay for adequate care.
Workers in Wyoming should not have to fear that an injury at a remote site might bankrupt them because lawmakers decided to ignore the state constitution.
HB35 contains another fundamental flaw. It mandates that the decisions of the state’s workers’ compensation bureaucrats in these cases are final. It leaves no chance to appeal administratively or in court.
“I doubt the Wyoming Supreme Court would agree that denial by the state of rights that were originally obtained through an exchange of fundamental rights under the Constitution was not subject to judicial review,” Duff said.
None of the four air ambulance companies that serve Wyoming testified at the Labor Committee’s meeting when the committee voted in November to introduce the measure in the 2019 session. But there’s absolutely no chance that they will miss any further committee discussion, and you better believe they will have their lawyers in tow.
Luckily there’s a legal backstop to this madness. Duff contends that the entire bill is preempted by the federal Airline Deregulation Act, so it’s a waste of everyone’s time to even consider it. But he’s sympathetic to the plight of the state, which, if no remedy is sought, will have to pay what it considers the exorbitant fees the air ambulance companies can legally charge.
“What the state needs to do — what all states need to do — is establish a re-insurance pool to cover air ambulance services,” Duff explained. Such a secondary insurance system would spread the risk to all employers in the state who pay workers’ compensation premiums.
If there’s any doubt that HB35 is a terrible bill that should be immediately withdrawn, here’s the topper: Injured workers can submit claims for air ambulance services to their employers’ general health insurance carriers, but those carriers are perfectly free under federal law to amend the plans to exclude coverage of such expenses.
“Perhaps air ambulance companies will respond by simply refusing to transport injured workers. It all sounds very 19th century,” Duff wryly added.
Obviously, back then there were no air services. Not using their helicopters to fly injured workers to hospitals now — in addition to being unethical — would put air ambulance firms out of business. But here in the 21st century, people who are covered by the workers compensation system have the constitutional right to have all bills for such flights covered.
If Wyoming has a problem with that — and the state obviously does, or HB35 wouldn’t exist — legislators can’t be allowed to “fix it” by sticking it to workers.