Congress may have implemented a partial legislative fix in response to a growing number of state and federal court decisions, the most recent out of the 4^th Circuit Court of Appeals, holding federal law regulating aviation preempts workers’ compensation fee scheduling of air ambulance bills.

The FAA Reauthorization Act authorized the Secretary of Transportation to appoint an advisory committee to suggest rules about charges for air ambulance services. But this “fix” may actually give air ambulance companies more power to avoid having their charges “fee scheduled” under state workers’ compensation laws.

The main controversy about air ambulance charges is that users, including injured workers, can be stuck with paying the difference between what insurance paid and what is billed. In workers’ compensation, when a provider accepts the “fee schedule” then an employee can not be billed further by the medical provider.

But since many courts hold that a state cannot regulation air ambulance charges, state fee schedules do not apply to air ambulances in that situation. This is because when a state law conflicts with a federal law, the federal law preempts the state law.  Charges for air ambulances are often in the tens of thousands of dollars because of the cost of helicopter flight.

On a negative note for workers, the fact that the Department of Transportation is issuing rules regarding air ambulance charges could strengthen the case that the regulation of air ambulance expenses preempt state workers’ compensation fee schedules.

In another downside for workers, the air ambulance industry will get three members of the advisory board that will be helping to draft the rules, while there will be one “consumer representative” as well as two other representatives generally representing the health insurance industry. There is a chance that consumer interests could get short-shifted by the Department of Transportation.

One upside for workers is that the legislation indicates that it should breakdown air ambulances expenses between transportation and non-transportation expenses. Non-transportation expenses could be more likely to be subjected to fee schedules which would reduce the cost of air ambulance services.

Recent case law would indicate there was an emerging majority view that the fee scheduling of air ambulance charges under state workers’ compensation laws would be preempted by federal law. The 4^th Circuit Court of Appeals upheld a federal court in West Virginia that held that state regulation air ambulance charges would be preempted by federal law. The 4^th Circuit joined the 10^th Circuit, 11^th Circuit and courts in Florida, Kansas, Kentucky, North Dakota, Texas  and West Virginia in holding that workers compensation fee scheduling of air ambulance services are preempted by federal law.

Three things disturbed me when I read over the recent 4^th Circuit decision and the West Virginia federal decision it upheld. The first thing that bothered me was any lack of discussion by the court about how fee schedules fit into the beneficent purpose of workers’ compensation laws. Legal analysis oftentimes requires balancing of different interests, but there was no more than cursory balancing of interests in the latest air ambulance case.

Fee schedules were generically described as a “regulation” in the most recent air ambulance case. The deregulation of air service was described by the District Court as an unvarnished good. Recent press coverage has demonstrated how business interests have worked to influence the federal judiciary. The recent air ambulance cases show a strong anti-regulatory bent and how that influence may manifest in court decisions.

Finally, the District court upheld a contracts clause challenge to state workers’ compensation fee schedules. I don’t know if the contracts clause argument would have succeeded without the pre-emption argument, but the contracts clause has historically been used to strike down workplace safety and workplace rights laws. As a plaintiff’s attorney, I don’t like seeing the contracts clause being used to weaken workers’ compensation laws. Again, this could show how business interests are influencing the federal judiciary.

But if Congress has legislated on air ambulance fees and the DOT will be regulating the area, there is some possibility that Congress or the DOT could change those rules and regulations in a way that would help workers, by say, ruling that air ambulances have to accept workers’ compensation fee schedules if one is in place. Ideally air ambulances would be excluded by Congress from the definition of common carrier as argued by proponents of the West Virginia fee schedule for air ambulances.