NCCI Posts Report on National Regulatory and Legislative Trends

The National Council on Compensation Insurance published its 2020 Regulatory and Legislative Trends Report four months ago. The report offered an overview of key legislative, regulatory, judicial, and other developments impacting the workers compensation system this year. As the year ends, this seems like an opportune time to examine some of NCCI’s conclusions.

NCCI’s 2020 report notes that many state legislatures were active in early 2020, prior to the pandemic. In the first half of 2020, NCCI tracked approximately 870 state and federal workers compensation bills. A total of 441 bills were in states where NCCI provides ratemaking services. As of July 31, 2020, 77 bills had been enacted. Many of the legislative themes were similar to prior years, including first responders, independent contractors, reimbursement/fee schedules, coverage issues, and indemnity benefits.

In addition, NCCI monitored 203 workers compensation-related regulations in 2020. As of July 31, 2020, 86 of those regulations had been adopted. As in prior years, medical cost containment was the top theme of the regulations adopted, including medical fee schedules, reimbursement, and treatment guidelines.

NCCI also monitored COVID-19 legislation and regulations that were insurance-related but not necessarily specific to workers compensation. When factoring in these bills and regulations, NCCI is monitoring more than 1,110 state and federal bills. A total of 536 bills are in states where NCCI provides ratemaking services and at least 105 bills have been enacted. In addition, NCCI is monitoring 252 regulations. As of July 31, 2020, 130 of those regulations were adopted.

The report identifies five legislative trends and hot topics: presumptions of compensability for contraction of or exposure to COVID-19, mental injuries, the legalization of marijuana, single payer health insurance, and independent contractors/gig economy. The report notes that as of July 31, 2020, eight states had passed legislation establishing presumptions of compensability for COVID-19 for certain workers, while eleven states had issued executive orders, directives or emergency rules related to such presumptions.

By mid-year, five states had enacted legislation addressing workers compensation coverage for mental injuries. Another 16 states had considered or were considering mental injury legislation.

By July 31, 2020, nine states had considered or were considering bills that would legalize marijuana for recreational purposes; and six states had considered or were considering bills legalizing marijuana for medical purposes. However, as of that time, no state legislation to legalize recreational or medical marijuana had passed.

As of mid-year 2020, 14 states had considered legislation to establish a single-payer health insurance program. Four of those states specifically mentioned workers compensation or injured worker’s medical benefits in the proposed legislation. However, as of the date the report was published, no state had passed single-payer legislation.

Finally, by mid-year, three states had considered or were considering legislation that codified a three-part test (known as the “ABC” test) to determine whether a worker was an employee or an independent contractor. In November, after the NCCI report was published, nearly 60% of California voters approved a ballot measure to create a carve-out from the state’s independent contractor law, AB 5, for drivers on technology platforms such as Lyft, Uber, Doordash, and Postmates. This initiative, known as Proposition 22, essentially creates a new category of workers by allowing transportation technology companies to continue to treat drivers on their platforms as independent contractors while simultaneously requiring the companies to provide a new array of benefits traditionally reserved for employees.

The full 75-page NCCI report addresses regulatory and legislative trends in each NCCI region of the country. Read the whole thing. Founded in 1923, NCCI’s self-stated mission is to foster a healthy workers compensation system. In support of this mission, NCCI gathers data, analyzes industry trends, and provides objective insurance rate and loss cost recommendations.