Thinking about the Long-term Effect of the Air Ambulance Ruling
On January 31, 2018, the Austin Court of Appeals issued an opinion in PHI Air Medical v. Texas Mutual Insurance Co., et al. where the court reversed a trial court ruling that had recognized the Division’s jurisdiction to regulate air ambulance charges in the Texas workers’ compensation system. The Court of Appeals reached its decision by concluding two things: 1) that the Division’s jurisdiction was preempted by the Federal Airline Deregulation Act; and 2) that the ADA’s preemption of state law was not “reverse preempted” by the Federal McCarran-Ferguson Act.
McCarran-Ferguson is a Federal statute that precludes Congress from invalidating, impairing, or superseding any law enacted by any State for the purpose of regulating the business of insurance. Basically, McCarran-Ferguson commits the regulation of the business of insurance to the States and preempts the Federal government from interfering in those regulatory systems. The Court of Appeals concluded that the Texas Workers’ Compensation Act, and relevant Division of Workers’ Compensation rules, which impose caps on air ambulance fees, are not regulations having to do with “the business of insurance.”
In a column called “Is the Wall Strong Enough?” Thomas A. Robinson, a national commentator on workers’ comp issues, wonders whether this air ambulance decision (and other similar cases around the country) suggest that the barrier to Federal involvement in workers’ comp may be decaying.
Since its enactment in 1945, the MFA has provided safe cover for state regulators responsible for controlling and otherwise regulating the “business of insurance” at the state level. Many workers’ compensation practitioners and state administrators have assumed that because of the close interconnection between an employer’s obligation to provide workers’ compensation coverage for its employees and the state’s duty/obligation to regulate insurance carriers within its borders, that the MFA operates as a firewall between a state’s workers compensation law and the federal government. Yet, is that really true?
For example, could Congress establish a national standard mandating that impairment ratings for all injured workers must be established by utilizing the AMA Guides, Sixth Edition? Could Congress pass legislation requiring the utilization of particular medicine practice guidelines for injured workers (e.g., those established by the American College of Occupational and Environmental Medicine (ACOEM)? Could it legislate laws and/or rules governing the treatment of work-related back injuries by chiropractors? Could it establish some sort of mandatory national drug formulary for use in cases involving employee injuries and/or occupational diseases?
Note that my question is not should Congress do so, or even does Congress desire to do so? Rather, my question—and I admit that based on my own research, I don’t fully know the answer yet—is could Congress make such laws?
FOLIO
