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Tennessee, Florida sustain opt-out momentum

Tennessee, Florida sustain opt-out momentum

The national discussion around workers compensation opt-out laws won’t go away in 2017, despite a recent low point in the number of Texas workers comp nonsubscribers and the Oklahoma Supreme Court’s decision in September to ax the state’s alternative injury benefit law, according to comp experts.

A Tennessee insurance regulator said the state is gearing up for a third year of battling proposed opt-out legislation there.

Meanwhile, a Florida lawmaker reportedly introduced a bill last month that would make it optional for employers to provide traditional workers comp coverage for their employees.

“We will see other attempts” at introducing workers comp opt-out in other states, said Greg McKenna, Itasca, Illinois-based vice president and counsel of governmental affairs at Gallagher Bassett Services Inc. “It is certainly an issue to watch in 2017.”

Last month, the Texas Department of Insurance revealed that 22% of all companies in the state chose to opt out of traditional workers comp insurance in 2016, down 11 percentage points from 33% in 2014. The 2016 findings represent the lowest percentage of nonsubscribers in the nation’s lone opt-out state since 1993, according to the department’s biennial report.

Texas regulators stated in the report that the new numbers show “employers believe the benefits of participating in the workers compensation system outweigh the costs of obtaining the coverage.”

Employers that opt out of Texas’ workers comp system can either provide alternative benefit plans for injured workers or forgo providing workers comp coverage or injury benefits. Companies that fail to provide comp coverage can face tort litigation from injured workers.

Fred Bosse, Austin, Texas-based vice president for state affairs of the southwest region for the American Insurance Association, said Texas is a very vibrant, competitive market” for workers comp insurers, which could be contributing to employers purchasing comp insurance and driving down nonsubscription rates.

For instance, the Texas insurance department’s report noted that workers comp rates have fallen in the state, “making workers compensation coverage more affordable for Texas employers.” Employers paid an average of 96 cents in workers comp premiums per $100 of payroll in 2014, down from $1 in 2013 and a high of $2.34 in 2003.

“Costs are down (and) medical care, closed formulary (use), access to medical care has improved. Return-to-work numbers are good. Prices for the product are falling,” Mr. Bosse said.

However, Bill Minick, president of Dallas-based PartnerSource, an alternative workers comp consulting unit of Arthur J. Gallagher Risk Management Services Inc., said large Texas employers continue to embrace nonsubscription. The department’s report attributed declining nonsubscription this year primarily to smaller employers choosing to buy workers comp insurance.

“This new report indicates that medium and large employers remain committed to (alternatives to worker comp), which in our experience is a very viable way to provide good benefits coverage and safe workplaces,” Mr. Minick said in a statement to Texas lawmakers in December.

The Texas report came three months after the Oklahoma Supreme Court declared that state’s opt-out program to be unconstitutional. The Oklahoma Employee Injury Benefit Act, which became effective in February 2014, allowed employers to opt out of the state’s comp system only if they provided an alternative benefit program for injured workers, and did not allow injured workers to sue their employers in tort.

Struggles for alternative workers comp programs in 2016 did not make opt-out any less attractive for proponents lobbying other states to introduce similar laws in 2017, experts say.

“There’s a cottage industry of people who advance the opt-out option,” AIA’s Mr. Bosse said.

Republican Florida state Rep. Cord Byrd reportedly is expected to propose a bill in 2017 that would allow employers to opt out of workers comp insurance.

That media report came out last month, which is also when Florida’s workers comp advisory rates shot up 14.5%.

A.J. Donelson, public and government affairs officer with the Association for Responsible Alternatives to Workers Compensation in Richmond, Virginia, said he wouldn’t be surprised to see other states consider various forms of opt-out legislation in 2017. He addressed opt-out programs last month during a panel discussion at the National Association of Insurance Commissioners fall meeting in Miami.

Tennessee is a likely hot spot for such discussion, according to a state insurance regulator.

“This issue has been sort of plaguing us in Tennessee for the last couple of legislative sessions and we anticipate it will ignite again,” Tennessee Department of Commerce and Insurance Deputy Commissioner Chlora Lindley-Myers said during the NAIC discussion.

Gloria Gonzalez contributed to this report.


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