BILL ANALYSIS �
AB 2616
Page 1
ASSEMBLY THIRD READING
AB 2616 (Skinner)
As Amended April 29, 2014
Majority vote
INSURANCE 8-5 APPROPRIATIONS 12-5
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|Ayes:|Perea, Bradford, Ian |Ayes:|Gatto, Bocanegra, |
| |Calderon, Dababneh, | |Bradford, |
| |Frazier, Gonzalez, | |Ian Calderon, Campos, |
| |V. Manuel P�rez, | |Eggman, Gomez, Holden, |
| |Wieckowski | |Pan, Quirk, |
| | | |Ridley-Thomas, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Hagman, Allen, Cooley, |Nays:|Bigelow, Donnelly, Jones, |
| |Beth Gaines, Olsen | |Linder, Wagner |
| | | | |
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SUMMARY : Extends to certain hospital employees the presumption
that methicillin-resistant Staphylococcus aureus (MRSA)
infections are presumed to be job-related. Specifically, this
bill :
1)Contains findings and declarations concerning the incidence of
MRSA in health care settings that impact nurses.
2)Specifies that the term "injury" as used in the workers'
compensation law with respect to specified hospital employees
shall include MRSA that develops or manifests itself during a
person's employment at a hospital.
3)Provides that this infection shall be presumed to arise out of
and in the course of employment.
4)Extends this presumption for a period of 60 days after the
employee has terminated employment with the hospital.
5)Allows the employer to dispute the presumption by requiring
the employer to prove by evidence that the disease or
condition is not related to employment.
6)Specifies that the presumption applies only to hospital
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employees who provide direct patient care at a general acute
care hospital.
EXISTING LAW :
1)Establishes a comprehensive system of workers' compensation
benefits for injuries, including diseases that arise out of
and in the course of employment. The benefits include full
medical benefits to treat the injury or condition,
indemnification for temporary and permanent disability, and
death benefits.
2)Requires in most cases that the employee prove that the injury
or condition underlying the claim arose out of and in the
course of employment.
3)Provides safety officers (specified police, sheriff, and
firefighter employees) with a presumption that certain
injuries or conditions are related to employment. The list of
conditions or injuries for which presumptions apply include
cancer, heart trouble, blood-borne pathogens, hernia,
tuberculosis, as well as MRSA.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Presumptions generally lead to an increase in accepted claims
and over-time costs for the workers' compensation system.
2)This bill would apply to several state-run facilities, namely,
state hospitals, developmental centers, and correctional
treatment facilities that are all funded through GF dollars.
The number of additional MRSA cases among state-employed
direct care nursing staff is as a result of the presumption is
likely to be small. However, if even one additional
MRSA-related workers' compensation claims was filed and
approved as a result of this presumption, the cost could
easily be in excess of $200,000 GF.
COMMENTS :
Purpose. According to the author, U.S. Department of Labor data
shows that health care is the second fastest growing sector of
the United States economy, employing over 12 million workers,
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nearly 80% of whom are women. Nurses and other hospital workers
who provide direct patient care are in constant danger of being
exposed to a variety of illnesses by the nature of their work.
Because of the physical nature of patient care, combined with
rising patient acuity, higher levels of exposure to infectious
diseases are occurring. The author states that MRSA is a
work-related contact hazard for hospital employees. In
California, health care acquired infections at hospitals account
for thousands of infections, some infections leading to death,
annually, according to the Department of Public Health. Although
infection control measures help slow the spread of MRSA, they do
not eliminate this job-related hazard, and the author believes
these employees are entitled that these infections be presumed
related to work.
Background on MRSA. MRSA is a staph infection that is resistant
to most antibiotics. Up to one-third of the population may test
positive for a staph bacteria, but only a few of those people
will actually suffer noticeable symptoms from the infection, and
antibiotics provide an effective treatment in those cases.
MRSA, which is much less prevalent than common staph bacteria -
it has been estimated that 2% of the population might test
positive for MRSA - cannot be so easily treated. Of the small
percentage of people who might test positive for MRSA, many will
experience no symptoms, and others only minor symptoms.
However, especially for people with weakened immune systems,
MRSA can cause extremely dangerous infections. These are often
skin infections, but this "super-bug" can also cause internal
infections. Amputations and death are possible consequences of
severe MRSA infections.
While it is true, as opponents of the bill point out, that MRSA
can be contracted from sources other than health care
facilities, the Centers for Disease Control data show that 78%
of MRSA cases are from health facility settings. This most
recent data shows an improvement from 2005 data, when 85% of
MRSA cases were connected to health care settings. The
non-health facility cases, termed "community-associated MRSA,"
tend to occur in people who live or work in crowded settings
where there is poor hygiene, such as prisons or locker rooms.
People with weak immune systems, such as intravenous drug users,
and people who live in settings with poor hygiene, are also more
likely to become infected with community-associated MRSA.
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Background on presumptions - who benefits from them. Under
current law, the only employees (subject to two exceptions
discussed below) who receive the benefit of presumptions that
injuries or conditions are job-related are police and
firefighters - public safety employees. This bill would extend
this special benefit to private sector employees, and to
non-safety employees. The bill is therefore extending the
concept of presumptions in two novel respects.
The two exceptions to the "only public employees" and "only
safety officers" rules for presumptions involve somewhat unique
circumstances. A small number of firefighters who happen to be
employed by a private contractor due to a quirk in federal law
were granted the same status with respect to presumptions
afforded public employee firefighters. The other exception is
for certain public employee lifeguards, and that presumption is
limited to skin cancer.
Proponents argue that nurses and other hospital employees who
provide direct patient care, while not necessarily placing their
lives on the line like safety officers, are nonetheless front
line workers protecting the public health under challenging and
dangerous conditions. Opponents of the bill strongly object to
the expansion of presumptions to private sector employees.
Presumptions of compensability - rationale. The general rule in
workers' compensation is that the employee bears the burden of
proving that the injury or condition is work-related. However,
the law has recognized certain "presumptions" that shift the
burden of proof to the employer to prove that the injury or
conditions is not work-related. A presumption has historically
been adopted when employees have had difficulty proving that the
injury or condition at issue is job-related, while at the same
time it is intuitively logical that it is, in fact, job-related.
In this regard, there is substantial logic to the conclusion
that MRSA cases contracted by hospital employees who provide
direct patient care are likely to have been the result of
workplace exposure. This is the case for several reasons: most
MRSA cases do come from hospitals; hospital employees are not
very likely to visit many of the locations, such as prisons,
where community-associated MRSA tens to occur; and, these
employees are likely to be relatively healthy and not suffer
compromised immune systems as compared to the population that
typically contracts community-associated MRSA. On the other
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hand, proponents have presented no evidence that nurses and
other hospital employees have had any difficulty pursuing MRSA
claims in the workers' compensation system.
Cost implications. Proponents point to data from the Workers'
Compensation Insurance Rating Bureau (WCIRB) indicating that the
workers' compensation system had only 200 cases involving
infections of any sort in 2009, and therefore dispute that the
bill would generate significant new costs for hospitals. It
should be noted that WCIRB data is compiled only from insured
employer data, as reported by insurance companies. Since most
hospitals obtain a certificate of self-insurance, the WCIRB data
may not be reflective of the total number of infection cases
system-wide. Opponents counter that the bill would likely
increase claims that involve community-associated MRSA, and the
hospitals would have little chance to rebut the presumption.
The hospitals note that many health care workers work at more
than one facility, which makes rebutting the presumption even
more difficult. They also argue that, as hospitals are
generally self-insured employers who are required to maintain
reserves on a worst-case scenario basis, there will be a
substantial increase in costs to meet that requirement.
MRSA workers' compensation claims. There is very little
published data relating to the incidence of MRSA in the workers'
compensation system. Proponents point to the recent WCIRB study
reflecting 2009 experience. The WCIRB has reported to Assembly
Insurance Committee staff that the latest data that will be
released shortly will show that for 2010 there were some 1400
infection cases. Again, this information does not differentiate
among infections, and does not include self-insured. According
to the WCIRB, the significant increase from 200 to 1400 claims
is explained by a change in the reporting requirements. Since
WCIRB is primarily looking at data significant enough to impact
insurance rates, prior to loss year 2010, it did not require
reporting of detail for "all" claims, except in its aggregate
data. Claims under $5000 were not included in the 2009 data,
but were included in the 2010 data.
Assembly Insurance Committee staff also contacted the California
Workers' Compensation Institute (CWCI), a respected insurance
industry funded research and analysis organization. At the
Assembly Insurance Committee's request, CWCI drilled down into
available claims data contained in the Insurance Claim
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Information System (ICIS) to attempt to get a better handle on
the incidence of MRSA in the workers' compensation system. This
data base includes detailed claims data - more detailed than the
aggregate data used by the WCIRB - from insured employers, but
only limited data from the self-insured sector. CWCI advises
that there have been 393 MRSA cases reported to the ICIS since
2000. Of these cases, 6% were initially rejected, but
eventually accepted, either by the employer changing its
decision, or the employee prevailing in challenging the denial.
However, the data base only captures paid claim data, so it is
not possible to capture the extent of claim denials that were
not challenged by the employee, or claim denials that were
upheld after the employee challenged the denial.
Nonetheless, the data shows that approximately 30% of the claims
were "medical only" - that is, they did not involve any lost
work time. These minor infection claims cost, on average,
$4500. The remaining 70% of claims were more serious, involved
lost work time to at least some degree, and had average total
claim costs, which include medical costs, temporary and
permanent disability costs, and potentially death benefit costs,
of $300,000.
Prior legislation. AB 664 (Skinner) of 2009 and AB 1994
(Skinner) of 2010 proposed including nurses in the full range of
presumptions afforded safety officers. AB 664 and AB 1994 were
held on the Assembly Appropriations Committee suspense file. AB
375 (Skinner) of 2011 initially was similar to AB 664 and AB
1994, but was narrowed to include fewer of the presumptions. It
failed passage on the Senate Floor. AB 808 (Skinner) of 2012
was identical to this bill, but was held on the Senate inactive
file.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086
FN: 0003631