Mental health coverage in workers’ comp has been a topic of conversation across the country for several years. Last year, IWP published a white paper, Mental Health Coverage for First Responders, exploring the various approaches to mental health coverage in workers’ compensation across the country, including the success stories and the failures.
In 2018, the Florida legislature successfully passed legislation that would expand workers’ comp coverage for first responders who suffer from Post Traumatic Stress Disorder (PTSD). The bill came after years of back and forth in the legislature on whether a mental illness should be covered without an accompanying physical injury. After several tragedies in the state, including the Pulse Nightclub and Stoneman Douglas High School shootings, the bill was signed into law by Governor Scott in March.
As we near the effective date of the new coverage requirements, the state is working to develop regulations that make it practical for them to implement while staying true to the legislative intent. The new law specifically covers PTSD in first responders who suffer from PTSD as the result of witnessing or treating patients who suffer “grievous bodily harm of a nature that shocks the conscience.” The law calls on the Division of Insurance to define what “shocks the conscience” means and as a result, new proposed rules list out eight specific scenarios that would give rise to such a scenario.
The list includes:
(1) Decapitation (full or partial),
(2) Degloving,
(3) Enucleation,
(4) Evisceration,
(5) Exposure of one or more of the following internal organs:
(a) Brain,
(b) Heart,
(c) Intestines,
(d) Kidneys,
(e) Liver, or
(f) Lungs
(6) Impalement,
(7) Severance (full or partial), and
(8) Third degree burn on 9% or more of the body.
While the list strives to capture the more grievous injuries a first responder may encounter, industry stakeholders have concerns about such a specific and small list. By detailing exactly what situations give rise to a PTSD claim the Division is inadvertently leaving out other scenarios that might be just as jarring or troubling for a first responder to see.
While perimeters must be set as to what an event that shocks the conscience means, if we specify only certain injuries are we circumventing the legislative intent and putting many first responders right back to where they were before the new law? Mental illness remains a tough topic for legislators and regulators as it’s less definitive than a physical injury and can be frequently misunderstood.
By removing the accompanying physical injury requirement Florida is taking steps to recognize mental illness as its own ailment but like many other states, they are struggling with how to establish perimeters on it - like any other injury in workers’ comp.
The proposed rules are a first step and have begun the hard conversations about how we define what shocks the conscience and while it’s unclear how Florida will ultimately implement the new law to meet the needs of first responders, it is clear that workers’ comp coverage for mental illness will continue to be a complicated and developing topic.