Q2 2020 Legislative Updates

Here is a summary of legislative and regulatory developments and challenges for the second quarter of 2020 and their practical implications:

Effects of the COVID-19 pandemic dominated legislative and regulatory activity during the second quarter. Some of these responses to the emergency will be transitory (e.g., closing of agency offices and delay of regulatory actions and hearings), but others are likely to be more long-lasting.

Regulatory virtualization

In response to social distancing and stay-at-home orders, government agencies have embraced an array of technological solutions.  These range from video conferencing of administrative hearings to the elimination of notarization of legal documents.  Professionals and companies, spurred by extensive work-from-home strategies and avoidance of business travel, have incorporated these techniques more broadly into their day-to-day operations.

  • Implications

Commentators have observed that there will not be a complete “snap back” to business and social normalcy after the pandemic fades.  This may hold true in the regulatory environment, as well.  Although many agencies’ technological innovations are temporary measures as currently written, a “new normal” may prevail afterwards. Less bureaucratic red tape may appear as an advantage, with perhaps less stakeholder-government interaction, and thus less administrative agency accountability, as a disadvantage.

Broadening of telehealth authorization

As noted in the 1Q20 report, many states have temporarily relaxed barriers to telehealth services, through either WC/insurance regulatory agency, health department or governor’s order.  These actions address payment, scope of practice and billing issues.

With the coronavirus pandemic continuing into the foreseeable future and with providers, patients and payers having generally positive experiences with telehealth services, it is likely that many of these temporary measures will be extended and then made permanent.

  • Implications

Employers and commercial payers will need to develop techniques to maximize the benefits of telehealth services while managing the quality of care as it relates to workers’ compensation and return to work.  They also need to strengthen their cybersecurity defenses to thwart the attacks that are predicted to form around this innovative healthcare delivery model.  Forming partnerships with managed care organizations that have expertise in this field and strong IT security measures will be a key component of this strategy.

Compensability presumption

Many states have adopted or are considering measures to protect “front-line” workers by creating a presumption that COVID-19 is a work-related disease for broad classes of employees who are exposed to contagious patients or are required to work in high-risk environments.  The National Conference of State Legislators reported earlier this month that six states have taken action to deem COVID-19 as a presumptively work-related illness, either through legislative enactments or executive authorizations, and action pending in several other jurisdictions. Protected classes extend beyond first responders and healthcare workers, to others deemed essential, including grocery store employees.  For the full report: https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx. In addition, the NCCI has published a survey addressing the current status of COVID-19 compensability presumption laws and regulations, which can be found here:  https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf.

  • Implications

Compensability presumptions tend to be permanent after the emergency recedes, conclusive rather than merely evidentiary in operation, and expandable to other conditions and protected categories of workers.  This politically popular response to the pandemic may prove to be one of the most important and enduring effects of the COVID-19 emergency.