Disability Management Rules: 'Papa's Got A Brand New Bag'

Saturday, June 16, 2007 | 0

By Robert R. Graves

Under Section 413.011 of the Texas Labor Code, the Texas Department of Insurance, Division of Workers' Compensation (DWC), was required to adopt reimbursement policies and guidelines, including return-to-work guidelines and treatment guidelines. To that end, the DWC has adopted the disability management rules.*fn 2

The DWC designed the disability management process to optimize health care and return-to-work outcomes for injured employees to avoid delayed recovery. The process was created to provide disability management tools, such as treatment and return-to-work guidelines, treatment protocols, treatment planning, and case management to benchmark, manage, and achieve improved outcomes. Under the disability management rules, the DWC may use these tools for: (1) resolving income benefit disputes; (2) resolving medical benefit disputes; (3) establishing performance-based tiers; (4) defining performance-based incentives; (5) determining sanctions or penalties; (6) performing medical quality reviews; or (7) assessing other matters deemed appropriate by the DWC Commissioner.

The disability management rules apply to only those claims that are not associated with a workers' compensation health care network. *fn 3 The disability management rules contain a general section and are then divided into the following three separate categories: return-to-work guidelines, treatment guidelines and treatment planning.

The return-to-work guidelines and the treatment guidelines go into effect May 1, 2007. The treatment planning provisions were also originally scheduled to go into effect on May 1, 2007. However, concerns arose that additional time was required to establish systems and processes to appropriately address required treatment planning. There was a fear the implementation of the that treatment planning provisions would result in delay in treatment and neither health care providers nor insurance carriers were prepared to initiate treatment planning as required under the disability management rules. Accordingly, the DWC Commissioner, through an emergency rule, delayed the effective date of the treatment planning provisions until September 1, 2007. *fn 4 The disability management rules will apply to all heath care provided after the effective date of the provisions. *fn 5

II. Return to Work Guidelines

The return-to-work (RTW) guidelines are contained in DWC Rule 137.10. Under the RTW guidelines, carriers, providers, and employers are required to utilize the disability duration values in the current edition of The Medical Disability Advisor, Workplace Guidelines for Disability Duration *fn 6 (MDA), except for the provisions relating to rehabilitation, as guidelines for the evaluation of expected or average return-to-work time frames. The RTW guidelines provide disability duration expectancies. The RTW guidelines are presumed to reflect a reasonable length of disability duration and are to be used by:

1) Providers to establish return-to-work goals or a return-to-work plan for safely returning injured employees to medically appropriate work environments;

2) Carriers as a basis for requesting a designated doctor examination to resolve an issue regarding an injured employee's ability to return-to-work as well as a basis to initiate case management and to refer an injured employee to vocational rehabilitation providers; and

3) Employers, carriers, providers, and injured employees to facilitate and improve communications among the parties regarding the return-to-work goals or plans established by providers.

The disability duration values in the RTW guidelines are not absolute values and do not represent specific lengths or periods of time at which an injured employee must return-to-work. The values represent points in time at which additional evaluation may take place if full medical recovery and return-to-work have not occurred. *fn 7 The disability duration values depict a continuum from the minimum time to the maximum time for most individuals to return-to-work following a particular injury. System participants and the DWC may also consider co-morbid conditions, medical complications, or other factors that may influence medical recoveries and disability durations as mitigating circumstances when setting return-to-work goals or revising expected return-to-work durations and goals.

A carrier may request additional return-to-work information from a provider at any time. However, a carrier may not use the RTW guidelines as the sole justification or the only reasonable grounds for reducing, denying, suspending or terminating income benefits to an injured employee.

For any diagnoses or injuries that are not addressed by the RTW guidelines, system participants are required to establish disability duration parameters and return-to-work goals in accordance with the principles of evidence-based medicine as defined by Texas Labor Code Section 401.011(18-a). *fn 8

Treatment Guidelines

The treatment guidelines are contained in DWC Rule 137.l00. Under the treatment guidelines, providers must provide treatment in accordance with the current edition of the Official Disability Guidelines - Treatment in Workers' Comp, (ODG) *fn 9 excluding the return-to-work pathways unless the treatment requires preauthorization *fn 10 or a treatment plan. *fn 11 Health care provided in accordance with treatment guidelines is presumed reasonable. A provider that proposes treatment that exceeds or is not included in the treatment guidelines may be required to obtain preauthorization or submit a treatment plan.

The treatment guidelines are not absolute. Individual claims may require more or less treatment. However, the DWC believes that, while the treatment guidelines alone do not establish a standard of care for a physician, the guidelines do provide "courts with a benchmark by which to determine clinical conduct in the workers' compensation system." *fn 12

Carriers are not liable for the costs of treatments provided in excess of the treatment guidelines unless: (1) the treatment was provided in a medical emergency; or (2) the treatment was preauthorized. Additionally, a carrier may also retrospectively review, and if appropriate, deny payment for treatments provided for under the treatment guidelines if the treatment was not preauthorized and was not reasonably required. However, such a denial must be supported by documentation of evidence-based medicine that outweighs the presumption of reasonableness. Providers may still initiate the prospective review of medical treatment not requiring preauthorization process outlines in DWC Rule 134.650 and request a PRME regarding proposed treatment that falls within the treatment guidelines and does not require preauthorization. Carriers are prohibited from denying treatment solely because the diagnosis or treatment is not specifically addressed by the treatment guidelines or treatment protocols.

In some cases, there may be a conflict between the Centers for Medicare and Medicaid Services (CMS) reimbursement policies and the disability management rules. In such cases, the disability management rules take precedence over any conflicting CMS payment policy.

The rebuttable presumption of reasonableness regarding treatment that falls within the treatment guideline will likely result in a decrease in retrospective medical disputes. However, the requirement that treatment in excess of the treatment guidelines be preauthorized may result in an increase in preauthorization requests and prospective medical necessity disputes. In cases where a medical necessity dispute arises, an Independent Review Organization (IRO) may be appointed to resolve the dispute.13 The DWC believes that it is outside its scope of statutory authority to regulate IROs through the disability management rules. *fn 14 Accordingly, an IRO physician, while he should be completely familiar with the disability management rules and CMS policies, may reach a conclusion that, while the treatment at issue is inconsistent with these provisions, the treatment is medically necessary. Such decisions by the IRO are made on a caseby- case basis and, in that case only, take precedence over the disability managent rules and CMS policies.

Treatment Plans

Treatment plans are governed by DWC Rule 137.300. Treatment plans are required when: (1) treatment is anticipated to exceed or is not included in treatment guidelines or protocols and the treatment will be provided after the greater of: (a) 60 days from the date of injury; or (b) the optimum days listed the return-to-work guidelines; (2) a diagnosis is not included in treatment guidelines or protocols; or (3) as deemed necessary by the Commissioner as a result of sanctions. A treatment plan must include the identification of all reasonably anticipated health care treatment to be provided to the injured employee for a minimum of 30 days. Treatment plans are required to be consistent with the principles of evidence-based medicine and reasonably required health care. A treatment plan must be submitted for preauthorization by the treating doctor.*fn 15

A treatment plan is not required for treatment that falls within the treatment guidelines or protocols, unless the treatment is submitted as part of a required treatment plan as discussed above.

When a provider identifies treatment that requires preauthorization, the treatment or service should be submitted for preauthorization by the provider unless the health care is submitted as part of a treatment plan.

The treating doctor is required to confer with the other providers, carrier, employer, or injured employee as necessary to develop the treatment plan. The treatment plan shall include the identity and contact information of the providers involved in the delivery of care proposed within the treatment plan. When a provider develops a treatment plan, it must be submitted by the treating doctor to the carrier and processed as a request for preauthorization. Accordingly, under the preauthorization provisions, the carrier must process and approve or deny the treatment plan within three working days.*fn 16 The treating doctor is then required to inform the other interested parties of the approval or denial of the treatment plan.

Conclusion

The disability management rules are intended to provide tools to enhance the exchange of information between system participants to develop more effective treatment and return-to-work plans and improve return-to-work outcomes.*fn 17 Additionally, the disability management rules impose standards that will hopefully clarify the expectations of system participants and should, when fully integrated, decrease administrative hassles, which should improve injured employees' access to care. *fn 18 If used properly the disability management rules will become a valuable tool for all system participants to utilize in analyzing disability, return-to-work and treatment issues. As they are implemented, it will be interesting to see how they are utilized and developed.

=============== Footnotes ==============

*fn 2 DWC Rules, Chapter 137 (Rules 137.1 --137.300).

*fn 3 Under Texas INS. CODE Section 1305, Texas workers' compensation health care networks are required to adopt their own treatment guidelines, return-to-work guidelines and individual treatment protocols.

*fn 4 http://www.tdi.state.tx.us/wc/rules/adopted/137eaorder0407.html

*fn 5 The disability management rules only apply to claims with a date of injury on or after January 1, 1991 ("new law" claims).

*fn 6 Published by the Reed Group, Ltd. Information on how to obtain or inspect copies of the DWC return-to-work guidelines may be found on the DWC Web site: www.tdi.state.tx.us.

*fn 7 System participants may determine that additional evaluations are appropriate at any time during a claim.

*fn 8 Texas LAB. CODE Section 401.011(18-a) provides that: "'Evidence-based medicine' means the use of current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients."

*fn 9 Published by Work Loss Data Institute. Information on how to obtain or inspect copies of the DWC return-to-work guidelines may be found on the DWC Web site: www.tdi.state.tx.us.

*fn 10 DWC Rule 134.600 governs preauthorization.

*fn 11 DWC Rule 137.300 governs treatment plans.

*fn 12 32 Texas Reg. 161, 167 (2007).

*fn 13 See DWC Rule 133.308.

*fn 14 32 Texas Reg. 161, 168 (2007).

*fn 15 If the provider is not the treating doctor and identifies services that require a treatment plan, the provider must confer with the treating doctor to develop the treatment plan.

*fn 16 DWC Rule 134.600(i).

*fn 17 See 32 Texas Reg. 163, 170 (2007).

*fn 18 32 Texas Reg. 163, 184 (2007).

Robert R. "Bob" Graves, the author of this article, is an attorney with the law firm of Burns Anderson Jury & Brenner, L.L.P. This article was reprinted with permission from the Insurance Council of Texas.

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