Texas Division of Workers’ Compensation Quarterly Carrier Meeting 1/28/2010

By W. Jon Grove, Jr.  Downs Stanford, PC

On January 28, 2010 the TDI- Division of Workers’ Compensation held its first Quarterly Carrier Insurance Meeting for 2010.

Matt Zurek presented a summary of DWC ongoing rule making proceedings.  Of primary significance is the reminder that the deadline to respond to the accident prevention service annual report (DWC-109) is March 1, 2010.  The information required may be found on the DWC website (under the carrier section).  In addition, Mr. Zurek advised that a new proposal for the pharmacy formulary rule will be forthcoming in the first week of February and a request for comments is specifically directed to the process to be utilized in the implementation of the rule, rather than the actual formulary methodology.  The return to work reimbursement program rules are also expected to be published as a proposal during the first week of February.

Mr. Zurek advised that it is important that the carriers respond to all data requests in a timely manner, since the material provided is utilized by the DWC in its internal processes.  A failure of timely response could result in a referral to enforcement.

Teresa Carney, Director of System and Oversight Monitoring, spoke and reviewed the complaints received during calendar year 2009.  Although she noted that the number of complaints was down significantly from prior years, the area of heaviest concern still remains with problems with communication.  This primarily seems to involve the designated doctor process, as well as the non-subscriber DWC-5 filings (which the DWC has now undertaken to monitor in a more continuous fashion).

The second area of concern was medical reimbursement complaints.  Ms. Carney advised that in most instances these complaints were more properly addressed to medical dispute resolution (MDR) and were referred to MDR for resolution. 

The third area of concern was directed to healthcare provider billing of claimants.  Ms. Carney requested that if such billing is spotted by the carrier, that the DWC be advised in order that they may take appropriate action. 

The fourth area addresses the medical bills processing by carriers and improper denials.  In most instances these cases also were determined to be MDR disputes and were usually referred to MDR for resolution.

Importantly, Ms. Carney addressed the ongoing planning of the new PBO process and stated the participant group had been selected and the first meeting held on January 20, 2010.  The group is now determining what measures should be included, including whether a bell curve or a performance determination should be made in the classification of carriers, the selection process and timeframe for which data should be reviewed.  In the event there are specific areas that you desire to have discussed or reviewed, I would recommend that Stuart Colburn of Downs & Stanford, PC (scolburn@downsstanford.com) be advised so that they may be addressed by the DWC.

A major concern is that the DWC, during the auditing process, has discovered the need for accurate information of submittals by vendors.  It has apparently become a problem that has required data monitoring because some vendors are not completing the required submittals accurately (which causes a compliance problem on audit for the carriers).  This also goes to the monitoring agreed to by the carriers in their various compliance plans and the DWC will look to the carrier for errors committed by the vendors.  A concern is the failure of some vendors to use the proper doctor licensing number in their submittals, as well as the proper date received by the carrier (some vendors have apparently been utilizing the date that they received the information rather than the date the carrier received the information).  As was subsequently addressed by Cass Burton, the head of the enforcement group, if a clear and significant problem has been discovered by the carrier then the carrier needs to self-report to the Division and to address the issue with the affected vendor.  This self-reporting will allow the carrier to utilize the resources of the DWC in order to correct the problem and can also act to greatly reduce any penalty where a subsequent audit reveals the “violation”.

Finally, at the Quarterly Carrier Meeting to be held in April 2010, Ms. Carney is preparing to address the TPA requirements and filing deadlines.  Should there be any specific questions concerning these requirements or input the carrier wishes to be considered by the DWC, Ms. Carney may be contacted at teresa.carney@tdi.state.tx.us. 

Mary Landrum, the medical advisor, spoke concerning the proposed implementation of Rule 130.1.  The proposed changes to this Rule are open to comment through March 1, 2010.  Comments should specifically address the certification of MMI and impairment rating.

Ms. Landrum also spoke to the current status of the medical dispute resolution process and noted that the majority of the unresolved disputes concern the issues of usual and customary, fee guidelines and sub-claimant requests for review.  The non-usual and customary cases have taken approximately 51 days to resolve, whereas usual and customary issues tend to average approximately 159 days.

Cass Burton spoke with respect to the DWC’s policy on enforcement.  Mr. Burton spoke and addressed that the primary areas of concern to the DWC have remained the same.  These are responses to data calls, the improper denial of claims, and overall compliance with the rules and regulations.  The DWC appears at this time to have directed major efforts at the designated doctor and healthcare provider responses. 

Mr. Burton noted that at the State Office of Administrative Hearings (SOAH) the DWC had prevailed against Texas Mutual Insurance Company on the issue of whether or not the DWC may issue a violation for a first time offense.  Having prevailed, the DWC may now issue such a violation. 

Mr. Burton emphasized the significant impact that the classification in the PBO process may have in any subsequent resolution of compliance proceedings.  This factor would primarily go to mitigation rather than to any emphasis on non-compliance. 

Finally, Mr. Burton discussed the need for active action by the DWC against employees who are failing to attend hearings or designated doctor appointments, and requests that carriers advise the DWC when such actions occur without a reasonable basis for the failure to attend.

Bob Lang, the head of hearings, discussed the current status of benefit review conferences and contested case hearings.  Mr. Lang advised that the number of benefit review conferences and contested case hearings has been declining since 2001 and he expects to see a continuing decline through 2010, at which point the numbers should level off.  Mr. Lang does anticipate an uptick in 2010 in the number of hearings as a result of the need to interpret the new supplemental income benefits rules.

Mr. Lang discussed the medical contested case hearings and the application of the ODG and evidence based medicine, which will be considered conclusive unless overcome by expert witness testimony.  He anticipates that many of these contested case hearings may become more “sophisticated” and that there will be challenges to the qualifications of the testifying experts on medical questions, particularly the determination of whether the doctor giving a medical opinion is qualified to offer it, and whether such opinion is relevant to the issues being presented at the contested case hearing.  A bald assertion of expertise will not be enough to overcome the IRO determination.

Discussion was held with respect to the automated process involving a change in treating doctors and RMEs and that this process will be implemented from the central office of the DWC. 

As a general matter, it was brought to the attention of the participants that there are numerous complaints with respect to communication with adjusters and the need of the adjusters to return the calls to the claimant in order to avoid a “disconnect”.  There will be additional emphasis placed upon the requirements of Rule 102.4, the general rules for non-commission communications, and that where necessary the enforcement group of the Division will be brought in to resolve issues. 

Finally, the question was raised of the DWC assignment of a designated doctor after 90 days where there had been a failure to dispute the first certification.  The DWC recognized that this may be a problem and it appears that the issue will go forward where the carrier’s disputing of the appointment of the designated doctor based upon the finality that occurs after the 90 day period, with certain exceptions.  Bob Lang, at this time, opined that in numerous instances that issue must be resolved before a designated doctor is appointed through the BRC and CCH process.  All parties appeared to agree that it would be improper to appoint a designated doctor where the question of the finality of the MMI and impairment rating is raised and a question of a timely dispute exists.