A Perspective on New Peer Review Rules

Saturday, December 16, 2006 | 0

Editor's Note: This is the first in a series of three columns written to provide the reader with an overview of the issues of contention associated with the use of peer reviews in the Texas workers' compensation system. This series of perspective articles has been written at the request of the Insurance Council of Texas in an attempt to provide an overview of the issues of contention surrounding the use of peer reviews by the insurance industry in Texas, the history of the use of peer reviews, how peer reviews are used within the Texas workers' compensation system, and provide insurers and other interested parties with both medical and legal "best practices" guidance.

By Norman Darwin

In an effort to curtail the abuse of peer reviews within the workers' compensation system, the 79th Legislature enacted Section 408.0231 of the Labor Code, which imposes oversight of the peer review process within the workers' compensation system.

Under Section 408.0231, the Commissioner of the Division of Workers' Compensation is required to adopt rules regarding doctors who perform peer reviews.

Section 408.0231 states that the rules "may include standards for peer review, imposition of sanctions on doctors performing peer review functions, including restriction, suspension, or removal of the doctor's ability to perform peer review on behalf of insurance carriers in the workers' compensation system, and other issues important to the quality of peer review, as determined by the commissioner."

In addition to requiring the imposition of rules regulating peer reviews, Section 408.0231 requires a doctor who performs a peer review under the Workers' Compensation Act to be licensed in Texas.

The new peer review rules have taken positive steps to increase the transparency of the system and give injured workers an opportunity to get a better understanding of the peer review process.

Rule 180.28 requires the peer review report to "document the objective medical findings and evidence-based medicine that support the opinion."

In addition, the report must now contain the reviewer's name and license number; a summary of the reviewer's qualifications; a list of all medical records and other documents reviewed by the peer reviewer, including the dates of those documents; a summary of the clinical history; and an analysis and explanation for the peer review recommendation, including the findings and conclusions used to support the recommendations.

In cases where the carrier relies on a peer review report to reduce an injured worker's medical or income benefits, the carrier must submit a copy of the peer review report to the injured worker's treating doctor, the health care provider who rendered the health care, the injured employee, and the injured employee's representative, if any.

In addition to increasing transparency, the new system also imposes new limitations on peer reviews. The new rules curtail the carrier's ability to request a subsequent peer review regarding medical necessity for health care that has already been the subject of a peer review report. In addition, the new rules limit the peer review doctor's ability to offer opinions regarding all future health care.

The new rules to do not address a significant outstanding issue, namely, the fact that peer review reports are often based on incomplete information. The insurance carrier still has complete discretion to decide what information it will provide to the peer review doctors to review. Because the carrier controls what information is provided to the peer review doctor, the perception is that peer review reports frequently are not based on a complete and accurate picture of the injured worker's physical condition.

The fact that the peer review doctor now has to identify the documents that were reviewed in forming the opinion may diminish the significance of the fact that the carrier controls the type of information provided to the peer review doctor.

However, the case can certainly be made that the peer review doctor should be given an accurate picture of the injured employee's condition in order to ensure that the peer review report is of good quality in that the medical opinion contained in the report is based on complete information that truly reflects the injured employee's condition.

It is hoped that the changes in HB 7 and the new peer review rules will serve as a good first step to restore faith in the workers' compensation system by reducing the perception that carriers use purchased peer review reports to delay and deny medical treatment and the payment of indemnity benefits.

Darwin is the state's first Public Injured Employee Counsel and head of the Office of the Injured Employee Counsel. He has more than 40 years of experience representing injured employees in workers' compensation claims before the former Industrial Accident Board, former Texas Workers' Compensation Commission, and the Division of Workers' Compensation. Prior to his appointment to the position of Public Injured Employee Counsel, Darwin, who was an attorney in Fort Worth, had a private legal practice that was devoted exclusively to representing injured employees.

This column was republished with the permission of the Insurance Council of Texas.

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