Legislative Affairs Feature - May 2007
By Ken Ortolon
Not all sprained knees are alike, but Beaumont orthopedic surgeon David Teuscher, MD, warns that new workers' compensation treatment and return-to-work guidelines will force physicians to treat all workers' sprained knees and other injuries as if they are. They will in effect have to practice "cookbook medicine."
He and other physicians who treat injured workers are afraid health insurers will use the new guidelines to deny care to patients or deny payment to physicians. The guidelines took effect May 1.
"In the short term, a lot of physicians are going to get disgusted with it," Dr. Teuscher said. "It basically makes us a bunch of robots. It's cookbook medicine, and that's not the way medicine is practiced."
Supporters of the guidelines, however, say that if used correctly, they can help reduce unnecessary surgeries and overutilization in the workers' compensation system and help get injured workers back on the job quicker.
"The biggest problem we've had historically in the comp system from the provider standpoint has been overutilization in certain areas," said Austin orthopedic surgeon Stephen Norwood, MD.
While supporters say the guidelines aren't perfect, they believe they are a good starting point in ensuring that physicians and other health care professionals provide appropriate care.
"For physicians, the major concerns with these guidelines are not about the appropriate use of guidelines - physicians understand guidelines are a valuable resource. The real issue is how these guidelines will be used," said Michael Reed, director of Texas Medical Association's Managed Care Delivery Systems Department. If used correctly as a reference tool, he says, everyone will benefit. "If these guidelines are used by insurance carriers to deny care to patients or deny payment for services provided by physicians, there will be significant problems."
Equally important, he adds, is the potential for reducing patient access to physician services; as physicians make decisions about accepting workers' compensation patients, required guideline consultation is an additional burden and cost.
"The state must understand that these additional costs are real and are being considered in physician practices everyday," he said. "TMA continues to ask the legislature and regulators to adjust the outdated and unrealistic price controls for workers' compensation to account for these additional administrative burdens in physician practices."
Legislators mandated the use of treatment and return-to-work guidelines in 2005 when they reformed the workers' compensation system. They felt guidelines would help rein in overutilization that made the Texas worker's compensation system one of the country's most expensive.
In December, the Texas Department of Insurance's (TDI's) Division of Workers' Compensation (DWC) adopted the Official Disabilities Guidelines-Treatment in Workers' Comp ( ODG ), published by the Work Loss Data Institute (WLDI), as the official treatment guidelines for non-network workers' compensation care. The Medical Disability Advisor, Workplace Guidelines for Disability Duration ( MDA ), published by the Reed Group, was selected as the return-to-work guidelines.
These guidelines will be used only for injured workers not covered by network health plans in workers' compensation. Workers' compensation managed care networks are allowed to adopt their own treatment and return-to-work guidelines for care.
The ODG and MDA were chosen after extensive public hearings and meetings among TDI staff, guideline publishers, and workers' compensation stakeholders. According to workcompcentral.com, which provides news and information on the workers' compensation industry, the debate mainly centered on whether to adopt the ODG or treatment guidelines published by the American College of Occupational and Environmental Medicine.
There was little consensus among the stakeholders on which guidelines to adopt, Mr. Reed says. In fact, TMA made no recommendation because there was little agreement among members of a TMA ad hoc committee on workers' compensation.
Despite the lack of consensus, Howard Smith, MD, DWC medical advisor, says adoption of the guidelines is a major step forward in optimizing care and return-to-work outcomes for injured workers.
"These treatment guidelines are evidence-based, scientifically valid, and outcome-focused," he said. "They are designed to reduce excessive or inappropriate medical care, while safeguarding necessary medical care. I am confident that the use of these treatment guidelines will have a positive impact on health care outcomes for these patients."
Practicing in a Vacuum
Dr. Teuscher sees several problems with the guidelines.
"There's not any widespread understanding in the general medical and orthopedic workers' comp treatment community of exactly how these things are going to be used. Doctors are not familiar with them, and they do not respect them as the controlling treatment authority. The carriers need to partner with us to delay implementation until TDI updates the Medical Fee Guidelines in October."
The ODG alone costs $325 in book form or $325 per user per year for the online version.
Dr. Teuscher says the guidelines are "extremely expensive and contrary to most modern forms of operative management," which he feels is shortsighted.
"Sometimes an operation is the conservative way to take care of a problem, like a torn meniscus, a torn ligament, or a herniated disk," he said. "Conservative means that the patient is going to achieve maximal work ability sooner and more cost efficiently when you get to surgery for a surgical condition."
Finally, he says physicians who follow the guidelines have no guarantee they can bypass preauthorization or that they will be paid for the care they provide within guidelines.
"Patients are complex entities with multiple organ systems, some of which are in a disease state that has something to do with the workers' comp claim directly and some that don't. You can't treat a single condition like ordering a part off the shelf to replace one in your truck."
Guidelines Just Guidelines
But Dr. Norwood, cofounder and chief medical officer of Physicians Cooperative of Texas, a certified physician-owned workers' compensation network, says the guidelines can be beneficial if the carriers use them properly.
"Guidelines can be used for good purposes or for bad," Dr. Norwood said. "The good purposes are if physicians are providing care within these guidelines 80 percent of the time, they could be left alone with less hassle. As long as they're practicing within these guidelines, they would require less preauthorization, less peer review, and that type of thing."
In the other 20 percent of cases in which physicians feel the patient's condition requires them to go outside of the guidelines, TDI requires doctors to submit proposed treatment plans to the carrier's utilization review process for approval.
But Dr. Norwood says guidelines have to remain just guidelines, not hard and fast rules for physicians to follow.
His own network has adopted the ODG but has established regional provider committees to look at where the guidelines are too confining or do not provide adequate patient care. In those cases, the network will alter the guidelines to respond to those issues.
Ken Ortoloncan be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by email at Ken Ortolon.
TMA Offers Training on New Workers' Compensation Guidelines
The Texas Medical Association, in conjunction with the Texas Department of Insurance's Division of Workers' Compensation (DWC), has develop a Web-based training course for physicians on the new treatment and return-to-work guidelines, as well as treatment planning requirements.
Disability Management - New Rules 2007 Webinar describes the goals of DWC's new disability management rules and identifies components of disability management that physicians should understand completely. It also tells physicians how to obtain access to the new return-to-work and treatment guidelines, explains the treatment planning process and how to determine when a treatment plan is required, and outlines how to dispute the denial of a treatment plan.
The course is free to physicians and their staffs, unless physicians want continuing medical education credit (CME), in which case it will cost $25. The course offers 1 hour of CME ethics/professional responsibility credit.
TMA also continues to offer training courses for designated doctors performing impairment rating in the workers' compensation system. TMA offers both Web-based and classroom curriculum-based courses. These courses were developed to meet DWC's new rule requirements and enhanced authority for designated doctors.
The curriculum for both courses includes an overview of the 2005 workers' compensation reform bill, the rule-making process, treatment guidelines, functional capacity testing and maximum medical improvement, determination of causality and compensable injuries, return-to-work issues and strategies, and health care networks and their effect on medical practices.
The Web-based course materials include a CD containing speaker presentations and slides to view on your personal computer, along with a 150-page syllabus and state-mandated post test.
The Web-based course, which costs $300, is only for doctors who are currently serving as designated doctors. Physicians who wish to become new designated doctors must attend in-person training sessions.
At press time, information about the disability management course was scheduled to be posted on the TMA's Web site (click on CME, then CME Courses, then TMA Seminars).
In addition, information on Web-based training for designated doctors is posted on the TMA Web site. Click here.
DWC Considers Delaying Treatment Plan Rules
The Texas Division of Workers' Compensation (DWC) has delayed implementing new rules requiring treating doctors to submit treatment plans for injured workers.
Some stakeholders say many doctors aren't aware yet of when such planning is required and that carriers also may need additional guidance. DWC staff members met with stakeholders in late March to discuss the issues and decided to delay the implementation date of the new rules from May 1 to Sept. 1.
The treatment plan rules were adopted in December when DWC also adopted treatment and return-to-work guidelines. The guidelines took effect on May 1.
The disability management rules require treatment planning by a treating doctor in several instances, including when treatment or services are expected to exceed (or are not included in) the treatment guidelines and the services or treatment are expected to continue for more than 60 days from the date of injury or the optimum days listed in the guidelines.
A plan also is required when a diagnosis is not included in the treatment guidelines or protocols and if the workers' compensation commissioner determines that a treatment plan is needed.
When a plan is required, the treating doctor must identify "all reasonably anticipated health care to be provided" for a minimum of 30 days and must submit the plan to the carrier for preauthorization.
The Texas Medical Association advocated for the delay in implementing the treatment plan rules, and the association plans to provide training on the rules for physicians.
TMA officials say some carriers already have been asking physicians to file treatment plans, even though the rules are not yet in effect.
Workers' Compensation Bills Advance
Physicians performing peer and utilization review in the Texas workers' compensation system would have to be licensed to practice medicine in Texas and be in the same specialty as the physician they are reviewing, under bills that are advancing in the Texas Legislature.
The Texas House in March passed House Bill 1003 by Rep. Helen Giddings (D-Dallas) that requires independent review organizations that review workers' compensation cases to use only Texas-licensed physicians to perform those reviews.
The House also passed HB 1006, also by Representative Giddings, which requires utilization review agents or insurance carriers that used doctors to provide utilization review of workers' compensation cases to use only doctors licensed in Texas.
Currently, independent review organizations can use out-of-state physicians to conduct peer review in workers' compensation cases, but critics say that limits the ability of the Texas Division of Workers' Compensation (DWC) to sanction those doctors for misconduct. And, physicians who perform utilization review can be licensed in other states so long as the review is performed under the direction of a Texas doctor.
"Clearly, our current situation is problematic," Representative Giddings said. "Doctors licensed in Texas should be the only doctors allowed to practice medicine in Texas. It is unacceptable to allow out-of-state doctors to make medical decisions for our citizens."
At press time, both bills were pending in the Senate.
A third bill by Representative Giddings, HB 2004, requires physicians who review workers' compensation cases to be board certified in a specialty appropriate to the care received by the injured worker. It also would require same-specialty reviews in peer reviews, designated doctor examinations, and other physician examinations. That bill was approved by the House Business and Industry Committee in March and was awaiting a vote on the House floor.
TMA supports all three bills.
Austin orthopedic surgeon Stephen Norwood, MD, says the bills will relieve one of many of the irritating hassles for doctors in the workers' compensation system.
"We have been plagued by peer-to-peer requests for basic patient care by hired guns from out-of-state, and some here, that often involves cross-specialty questioning and education," he said. "This is often a futile and time-wasting exercise, which typically must occur during prime patient encounter time. We simply want the peer-review doctors to understand the Texas workers' comp laws and nuances, and to be accountable to the DWC, TDI, and Texas Medical Board in their processes and determinations, in order to protect the interests of our injured workers."
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