It was almost to the point of amusement that I read an article Friday written by our own Angela Underwood regarding a legislative bill intended to establish an Opt Out system in Arkansas. Underwood was writing about Arkansas SB 653, but my amusement was rooted in all of the quotes regarding the Texas non-subscriber system.
Half of the quotes in her article referred to the glowing success of the Opt Out system in Texas. The other half were busy correcting the record, telling us Texas doesn't have an Opt Out system. It is a continuous struggle for Texas, and I strongly sympathize with their plight.
As I've written before, Texas is not an Opt Out State. It is an Opt-in state. Employers there may elect to purchase workers' comp insurance or roll the dice and go completely naked (or nekked, as they may or may not say in some parts of the Lone Star State). Others choose not to buy workers' comp insurance, but set up alternative plans to take care of their injured workers. If an employer does not sign up for comp, they are referred to as a non-subscriber, and they have no protections or liability limits such as that enjoyed by their workers' comp brethren.
Opt Out, on the other hand (also known as “Ye beast that will not die”), is an entirely different concept. Under the Opt Out scheme employers are required to provide coverage, but they may choose to do so under an alternate plan. In this scenario, they may opt out of the actual workers' comp plan, but they still enjoy the protections of limited liability under exclusive remedy provisions common in comp.
This type of legislation was most recently tried in Oklahoma, where the shattered remnants lay in a smoking heap just outside the State Supreme Court building in Oklahoma City. It turns out “separate but equal” didn't work in the 1950's and it wasn't any more successful in 2016.
The issue remains for Texas, however, because Oklahoma Opt Out proponents so successfully linked the two systems in the mind of most people. Even when OK Opt Out was just rolling out, we routinely heard about “the more than 20 years of successful results of Opt Out.” Those 20 years' worth of results were in Texas, where liability for the uninsured reigns supreme. That liability likely produces much different alternative plans than what was found in Oklahoma.
With this as background, I found the quotes in Ms. Underwood's articles downright amusing. A spokesperson for the Texas Department of Insurance took pains to point out that Texas is not an Opt Out state – and he did so twice. A representative of the AIA, which opposes the Arkansas bill, did the same. It could seem to the casual observer that it is a prickly issue. I can assure you that it is.
When I authored the column “For the Last Flippin' Time, Texas is NOT an Opt Out State”, I heard from numerous Texas friends thanking me for helping to define the difference. I speculate the continual lassoing of Oklahoma style Opt Out to Texas non-subscription is an irritant to many in Texas, from those in the trenches to the highest levels of state government. I wouldn't be surprised if Texas Commissioner Ryan Brannan's voice mail says something like, “Howdy, this is Commissioner Ryan Brannan. I am busy doing Commissioner stuff right now, but ya'll leave a message and I'll git right back to ya. Go Longhorns. Beef, it's what's for dinner. Remember the Alamo. Oh, and dang it, Texas is NOT an Opt Out state! Leave a message.” (Commissioner Brannan doesn't really talk like that, but this is what all ya'll can refer to as artistic license).
People of Texas, I am down with the struggle. I feel your pain. I will continue to help define the vast differences between Texas non-subscription and [fill in whatever State is trying it this week here] style Opt Out. There is a difference, dad-gummit. At least you've got your people and others finally working to define it.
It is clear that this ain't Texas' first rodeo. They are obviously fixin' to show the world there is a reason that you don't mess with Texas.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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