So This is Actually 'Peer Review'

Saturday, December 30, 2006 | 0

By Dr. William Nemeth

What is peer review?

"Peer review," in the most general sense, refers to a process by which a health care provider reviews the work of another health care provider with a similar scope of clinical practice. In the context of the Texas workers' compensation system and under the criteria established in Article 21.58A of the Texas Insurance Code and under DWC Rules 180.22(g) and 180.28, specific definitions and requirements governing the process of peer review are laid-out. For purposes of this discussion, "peer review" in the Texas workers' compensation system, defines the process by which clinical review of medical necessity and/or relatedness of current or prior health care occurs at the discretion of the payer.

It does not refer to the "preauthorization" process that deals with the determination of the medical necessity of proposed care. It also does not reference the process of review as rendered by Independent Review Organizations, or as done in "Required Medical Examinations" and "Designated Doctor Examinations" available to parties within the Texas workers' compensation system. It also does not encompass the quality review process that occurs within hospital or other provider network environments, nor the scrutiny utilized by licensing and credentialing bodies to ensure high professional standards of practice and compliance.

"Peer Review" is a specific tool utilized by carriers and their utilization review contractors to discern the appropriateness and medical necessity of care of "at risk" claims within the system. "Peer review" is used by payers in an attempt to prevent unnecessary, excessive and inappropriate care provided to injured workers who, by and large, are not improving regardless of the treatment given. These "at risk" claims are most often injured workers with evidence of pre-existing degenerative conditions, psychosocial co-factors, and/or chronic pain. The work injury, often trivial, is superimposed on these chronic conditions, and the frequent outcome is often that the employee does not return to the work force. They become what has been classified as "wounded workers" and are often doomed to permanent and prolonged disability. In this light, "peer review" is a very positive tool, as the emphasis is on refocusing care to attain a more satisfactory outcome for the injured worker.

Why do payers or their utilization review agents perform "peer review"?

Simply put, the rest of the health care industry does a very poor job of it! Numerous economic and political factors work against the evolution of quality improvement programming and can therefore adversely influence healthy peer review programming. Historically, organized medicine (both local and national, including groups such as state and national medical associations) have provided little leadership in this arena due to conflicting business and political agendas. These entities have found it easier to transfer over-site of quality of care to licensing and credentialing bodies, which is probably appropriate. However such regulatory and credentialing entities are also "conflicted" as the leadership positions are often political in nature and can be manipulated by organized medicine and politicians, often with self-serving motives. Also, many other leadership positions with influence over the implementation of quality review processes, such as CEOs and board members of hospital systems, are subject to other real financial pressures, and find it difficult to implement and enforce the type of peer review activities that such systems need.

A more insidious but relevant factor in all of this is the very nature of the "health care" industry itself and the implicit contract with those it serves. In the U.S. we not only have a capitalistic free market economic system, but we have abundance in all sectors. One result is that the health care system in general has made tremendous technologic advances in pharmacologic and other interventional therapies. This has led to the delusion that there is a pill or procedure for most anything that ails us. Not only do we have "entitlement" to good health and long life in our country, but we also have the ability and right to choose how we want to go about it. The consumer has only recently begun to question these abundant offerings, as many of these therapies do not "pan out" as promised and leave us frustrated and "uncured." This shift to "external locus of control" (the pill or procedure as the answer) rather than the continued reliance on the good counsel of the doctor has had a deleterious and eroding effect on the provider-patient relationship.

What does this have to do with quality of care?

A lot! With the commoditization of health care and the decreasing emphasis on the counsel acquired via the Doctor-patient relationship, the "quick fix" of a pill or procedure is difficult to avoid for both the patient and the physician. Doctors don't like to say "no!" Not only has the counsel of the Doctor patient relationship been devalued in favor of the procedure driven providers, but the marketing barrage from vendors of the drugs, devices and procedures is impossible to overcome! So a deluge of medication and procedure driven care, often inappropriate, is occurring. This has only recently been countered by the evolution of evidence-based medicine that has begun to delineate specific scientific indicators and lay out some of the untoward complications of such novel and yet unproven approaches.

"Peer review" is a tool used in an effort to restore the right balance between access to such services and their appropriate utilization. The insurance industry has been relegated the responsibility of discerning the appropriateness of such care as they are the "intermediaries" of the process, and through their unique "window" are privy to the care being rendered.

Doctors HATE "Peer Reviews!" Doctors are highly trained professionals. They are very invested in their professional identity. They have been trained to be authoritative. They are supposed to have answers and solutions for health care problems and have been privileged by licensing bodies to function in such a capacity. Any questioning of their expertise or judgment can be perceived as "threatening" to the maintenance of this continued professional privilege. They often take such inquiry as a personal "affront," though this type of response was much more pervasive in the early days of managed care and has become much less a factor as health care utilization review has become more pervasive.

In the practice of medicine, there is also a premium on being "right." Being wrong with a diagnosis or doing the wrong thing to a patient can be harmful and lead to disastrous results. So again, the questioning of a Doctor's decision making or judgment fortifies the notion that he/she might actually not be right and can invoke self-doubt and debase ones self-image as a "good" health care provider. Additionally, the continual threat of medical malpractice is erosive and has sensitized providers to the need to be "right" adding additional potential threat and stress. The burden of "not being right" is very real in the medical profession and the questioning of one's judgment or acumen by others is perceived as "threatening."

Another issue that surfaces in examining the practice of peer review is more subtle but just as poignant. Questioning a physician's judgment implies that in someway you are questioning his/her ethics and value system. Again, this is a deep-rooted concern as most medical providers have spent an additional 7-8 years of committed training beyond college to be able to practice their profession, and the actual "anointing" that occurs with the rigorous credentialing confers that a certain level of behavioral scrutiny in the area of ethics and values has occurred. There is arrogance and pride that can follow the completion of such rigorous training and credentialing that often takes years to overcome. Becoming fallible or imperfect and subject to the inquisition of a peer reviewer implies that a practitioner is not attaining the highest degree of perfection in practicing his/her profession and raises the question of ethical commitment to the profession.

Workers' Compensation and Over-utilization

Workers' compensation is not group health. Due to the complexity that injury awards and wage replacement confers in a workers' compensation claim, the entire context of care can change. The majority of injured workers get well and return to work in a timely manner following workplace injury. However, a minority has prolonged complaints and does not return to work at appropriate times. This group of injured workers is "at risk" of delayed recovery and their health care resource utilization is often excessive. This is a complex group of injured workers who have co-occurring psychosocial issues that go unrecognized and untreated. It is in this population of injured workers that peer review usually occurs.

Not all care is good care. Too much inappropriate care fosters dependence and disability and can be harmful. The workers' compensation system in Texas in recent years was found to have one of the highest utilization rates in the nation while having among the poorest outcomes of any comparable state. The reason for this is complex, and beyond the scope of this discussion. However an open access, robust fee for service system, in addition to factors already discussed, is part of the cause.

The current environment offers many unproven, non-evidence based therapies from which injured workers and their providers can choose. Until recent legislation (HB 2600 in 2001 and HB 7 in 2005) was enacted, there was little effort put forth by regulatory entities to temper these unconstrained and unproven health care strategies. In fact, until 3-4 years ago, peer review and other quality control tools were not uniformly applied within the Texas workers' compensation system. However, these and other tools are being implemented and peer review processes have begun to be used more effectively. That has created a "push back" from organized medicine and other individual providers with political connections.

Peer Review and the Wounded Worker Syndrome

The "Wounded Worker Syndrome" is a condition befalling an injured worker "at risk" for delayed recovery. The condition is well described in the literature. These injured workers do not do well once injured. They are not malingering, though they may appear to be so. They "struggle" to become functional. They suffer from chronic pain and a plethora of associated psychosocial disorders. They undergo treatment after treatment including numerous surgical and interventional procedures, all without relief. They end up on end-stage medications and become hopeless wards of the workers' compensation system and eventually the state. Although their injuries are often trivial, these injured workers do not recover. Unfortunately, they are misdiagnosed and inappropriately treated and therefore harmed by a system that was created to help them.

The providers who care for these injured workers are generally well intentioned though some are subject to the perverse incentives already discussed based on their type of practice. Those who get paid to do interventional procedures (surgery, blocks, and some types of pain management) get paid piecemeal. No income is generated if no procedure is performed. This environment can and does lead to misdiagnosis and inappropriate treatment. Again, the health care environment in which we practice is partly responsible for this as it enables this to happen. Ultimately the provider needs to be held accountable for his behavior, as he/she is the one making the diagnosis and offering the treatment.

Peer review is a tool designed to refocus care to more appropriate evidence-based modalities with the ultimate end in mind of restoring as much function as possible and returning the injured worker to productivity where possible. The focus is on preventing the evolution of the "Wounded Worker Syndrome" and not just on issues of "utilization."

Contentious Issues with Peer Review

How one views the process largely depends upon whether one is the patient or his/her advocate (including provider) or the employer or its fiduciary. Intrusiveness Most injured workers and their providers see this process as intrusive, and this can be the case as the process can and often does interfere with the will of the injured worker and/or provider. In particular cases where proposed care does not meet standards upheld by the scientific community as a whole, this is the intent. Generally, the purpose of this tool is to open a discussion between the provider and the payer that can lead to a refined treatment plan for the injured worker. The intent of a peer review is not to deny needed care.

Definition of "Peer" The issue is often brought up as to how to determine whether a given provider qualifies as a true "peer", based on their credentials. A "peer" is one, who in general, has matching credentials, i.e. license, specialty training, and experience treating the condition(s) under review. For example, is it appropriate for a non-fellowship trained orthopedic surgeon or neurosurgeon to review the care of a "spine fellowship" trained provider of like specialty? There is no definitive answer, but to add credibility to the opinion, the match should be based upon the clinical training and experience with the question(s) being reviewed.

There are many areas of crossover in "scope of practice" between MDs, DOs and DCs. The most obvious of these areas in workers' compensation is rehabilitation in which all these particular provider types are often active utilizing many of the same modalities. This can lead, for example, to increased conflict if an MD reviews a DC for the "medical necessity" of continued rehabilitative care. However, using the above criteria, such is an appropriate match based on clinical training and experience. And this general type of matching holds throughout; MDs and DOs should review others with similar scope of practice and surgeons with similar training should review cases in which surgical care is evaluated.

Fortunately, if a close enough match is made to align with competent peer reviewers (nearly all are board certified in their specialty, experienced and most still practice actively) and if evidence-based medicine principles are used in the discussion, the best decision is made with the injured worker in mind. Though this process may be contentious, it tends to favor the most conservative therapeutic option unless there are convincing additional rationales available that favor an aggressive approach. Based on a medical quality review of over 200 actual peer reviews done within the Texas workers' compensation system for injured workers from injury year 2001, with few exceptions, physicians who do "peer reviews" exhibit excellent clinical judgment in the opinions they render, despite often quite vocal protestation from treating doctors whose treatment plans are overturned.

High Denial Rates

A significant misunderstanding exists regarding the objectivity of the actual "peer review" process. There are stakeholders who feel that the process of "peer review" is very biased favoring the carrier-utilization review agent, based upon the predominance of unfavorable and negative opinions rendered in the process. If the process were totally objective, these stakeholders believe that the reviews should yield as many favorable opinions and decisions as unfavorable. In other words, if there was no bias in the process, the results of such reviews over time should "normalize."

The problem with this supposition is that this population subject to peer review is skewed and composed of outlier and "at risk" cases. They are selected for "peer review" generally by adjusters and nurses from a normalized population of injured workers. This is a fairly homogeneous group of "at risk" injured workers still under care and generally not progressing toward recovery. They do not fit neatly into the routine treatment paradigms generally accepted by most providers. Therefore, the actual peer review evaluations of these cases also tend to cluster with a tendency to deny unproven care in the face of already mounting treatment failures.

If you look further within this group of patients, it becomes very clear that they are complex and often exhibit significant psychosocial co-factors that inhibit and prevent recovery. The workers' compensation health care system has not encouraged the recognition or diagnosis of such conditions and generally does not support payment policy that would provide incentive for the appropriate diagnosis and subsequent care of these co-existing conditions. The issue of how to address these co-morbidities remains under study, but as we begin to recognize these factors our ability to limit inaccurate diagnosis and unnecessary care is increasing. As noted, all of the above issues ultimately reflect a group of patients who are skewed for the overall presenting workers' compensation population. This is the population that appears to be "at risk" for continued treatment failure and delayed recovery.

The Bias Issue

This is a legitimate concern of those who continually scrutinize the overall "peer review" process. The real question is whether or not a carrier will utilize only peer reviewers who render decisions favoring restriction of additional health care services. Such a position would create a non-objective and biased process and open the carrier-utilization review agent to "bad faith" allegations. The use of non-objective, non-independent and conflicted reviewers is a recipe for disaster for a utilization reviewer/payer, and these entities cannot afford such a callous policy. Since many of the peer review opinions favor the denial or modification of care, there is an "illusion" that the process is "biased" to favor the carrier.

An opposing view is that the real "bias" in the Texas system is that it has traditionally favored the delivery of excessive amounts of unproven care for the injured workers, as demonstrated in WCRI outcome studies published to date. This data demonstrates that such patterns of care are still rampant in Texas and are in fact conducive to poor outcomes and "delayed recovery." The payer entities must shoulder some of the blame for this (though there is enough blame for all parties) as they have only lately begun to scrutinize care with enough investment and refinement of process to begin to elevate the level of care within the system. Additionally, the legislature has begun to provide tools that will improve the quality of care and outcomes.

Another well-documented bias that does exist in the health care system is "specialty" bias. This is particularly prevalent in the areas of "super" specialization that treat "pain" such as spine surgery and interventional pain management. Often, these specialists will insist that a provider with like fellowship and subspecialty training review their cases. The problem with this practice is that these providers are often myopic with a limited focus on their area of expertise and a poor recognition of other conditions such as diabetes, addiction, and depression all of which may contribute more to the patient's symptoms than the incidental findings upon which they base their treatment plan.

Also, these specialties generate large amounts of revenue and are often economically conflicted as they are tied into related entities in which they have financial interests creating the need to keep a significant caseload moving through their system. These practitioners tend to support their fellow specialists; for fear that they might themselves be held up to additional scrutiny thus threatening the profitability of their practices.

Peer Reviewers must be licensed in Texas

This is an argument that has been wielded largely by providers who have been subject to considerable review and is based on the need to have a sense of better "control" over the peer review panel. Many questions as to identity, actual credentialing and competency of out of state reviewers have arisen. While some of these concerns have proven valid, by and large, the quality of the assessments and evaluations by out of state peer reviewers is very good. However, an interesting issue does occur if a disciplinary action need be taken against an out of state peer reviewer. Texas state medical and chiropractic boards have no jurisdiction over out of state providers and therefore have limited roles in monitoring or disciplining such peer reviewers.

Additionally, there is a sense, though invalid that the actual standard of care in Texas might well be different than it is elsewhere. In years past, standard of care was determined "locally." Therefore, depending on the intervention, there were large statewide variations in practice. With the advances of evidence-based medicine and more global access to medical research and guidelines, the general standard of care for most treatment is becoming more consistent from place to place. An additional factor in the state of Texas is that many providers feel that Texas is a unique state with special demographics that can also influence health care outcomes. Out of state peer reviewers can be "out of touch" with these Texas issues and are therefore subject to providing misdirected opinions if the context of the injured worker's situation is unappreciated. There is no evidence to prove that this is the case, but these issues remain contentious when discussing peer review in general. On the whole, the need to use out of state peer reviewers to do the Texas work is becoming less of a problem, as there appears to be an ample set of Texas state licensed peer reviewers at this time.

Inadequate documentation or information to make an accurate assessment This is an issue that has been problematic and actually goes beyond the notion of whether or not "all" the needed medical records are available for the reviewer at the time of review. To clarify this issue, suffice it to say that each peer reviewer has the records that are given him by the providers following appropriate requests for the records. If there is important information missing, peer reviewers will generally acquire it by special request submitted directly to the provider. Most peer reviewers will document the specific material reviewed in doing their review and, incidentally, the requirements for such documentation have been appropriately strengthened with recent DWC rules. Often, medical records are illegible or woefully inadequate in terms of treatment planning documentation and rationales for care.

Of more interest is the issue of whether a peer reviewer can do an adequate evaluation of care without actually examining the patient. There is process available in the management of these cases that does enable a physical evaluation and additional assessment as needed. Depending on the case, the actual evaluation of the patient by an unbiased, objective, and independent provider can be very useful. In like sense, the unbiased and objective evaluation of the multiple clinical records available to a peer reviewer can often lead to clarity of understanding unavailable to the health care provider who has the "suffering" human being in front of him, and is subject to the emotional persuasion of that relationship. The peer reviewer who does not have the vested economic interest in the outcome of treatment or the emotional involvement and empathy that can occur in a therapeutic relationship may actually be able to offer a less biased and more objective assessment and treatment plan than the actual caregiver.

Peer Review is an important quality improvement tool utilized in "at risk" workers' compensation cases to prevent and mitigate poor outcomes. Improved outcomes can be generated by appropriate over-site and the redirection of care when done by unbiased peers who have the overall best interest of the worker's health in mind. This is particularly important in today's environment in cases in which current and proposed interventions are unlikely to improve the patient's outcome or unfortunately might even cause further harm, resulting in the "Wounded Worker Syndrome."

Dr. William Nemeth is the current medical director for the Texas Association of School Boards. He is the past medical advisor for the Division of Workers Compensation at the Texas Department of Insurance. Dr. Nemeth is a board certified orthopedic surgeon and Fellow of the American Academy of Orthopaedic Surgeons, Fellow of the American Academy of Disability Evaluating Physicians, and a Diplomat of the American College of Physician Executives and is an active member of the American Pain Society, the American Society for Addiction Medicine, and the International Association of Industrial Accident Boards and Commissions. Dr. Nemeth has 26 years of clinical orthopedic experience and has had major administrative and policy positions in the workers' compensation system for 12 years. This article was republished with the permission of the Insurance Council of Texas.

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