My publc comment on 134.600, preauthorization in Texas Work Comp
March 1, 2006
It is my understanding that public comments are accepted until 3-13-2006 on 134.600.
I have been a doctor involved with treating Work Comp patient since 1990. I am presently a Worm Comp provider on the ADL list for Longview Texas. It is my observation from day to day practice, that more and more doctors are deciding NOT to continue as providers.
The "new" system, as a division of the Texas Department of Insurance, as I understand it, will eliminate the ADL list in 2007. Also, as I understand it, HB 7 was the template on which this "new" Work Comp system would be built, with adoption of rules by Commissioner Betts.
Also, as I understand it, this new system has, as its basic fundamental unit, the development of "health networks". Here it is March 1, 2006, and these networks were , as I understand it, supposed to begin forming in the first part of January, 2006. These networks, comprised of doctors approved of by insurance carriers, would in essence, be "company doctors" and it would be from this list, that an injured worker would be forced to choose.
This in stark contrast to the previous system with a list of "any willing provider" on the ADL list, being able to be a treating doctor.
This in essence, really does rob injured workers of an essential weapon in this Work Comp War, and that is, the ability to choose a doctor who is not beholden to the insurance. I believe this is not fair to workers, and my injured worker patients agree with me, and are uniformly horrified at the proposed rules, which includes but is not limited to taking patients away from established treating doctors and forcing them to choose from the list of company doctors that will be referred to as a "health network".
Now, on to 134.600. Preauthorization of procedures and services that were not preauthorizable, is creating a real problem for many providers, specifically, Doctors of Chiropractic. Part of the reason is that , at this point, there appears on its face, to be differentially discriminatory denials given to many D.C.s in this state, when many MDs are experiencing fairly good success rates at preauthorization, and though I have not looked at Doctors of Osteopathic Medicine preauthorization success rates, I would guess they would have similar success rates to that of Medical Doctors ( M.D.s).
Also, as I understand it, per the emergency rule adoption, preauthorization is to cover occupational procedural codes and physical therapy codes as defined in the HCPCS.
As I have found out, Chiropractic manipulations / adjustments, with code numbers of 98940 through 98943, are OUTSIDE the range of procedures that must be preauthorized under the emergency rule adoption, and yet, in my office, we are seeing blanket denials of payment based on preauthorization, INCLUDING manipulations, which are , per my understanding, not required to be preauthorized.
Furthermore, as I understand rule, 134.600(f)(3)(A), which states: "(f) The carrier shall...(3) contact the requestor or employee by telephone, facsimile, or electronic transmission with the decision to approve or deny the request: (A) within three working days of receipt of a request for preauthorization...".
We are sending out proper preauthorization requests and NOT getting any answer within the mandated time frame. These carriers are NOT being compliant, and there seems to be no course toward forcing compliance on insurance carriers.
Thus, my complaint is that the preauthorizations are unduly burdensome, unevenly applied, denials are being applied in a discriminatory and arbitrary fashion, and even MORE importantly, the preauthorization rules are being used as a delaying tactic to avoid payment.
The obvious question is "How does this preauthorization system help the patient?" The answer is that it does NOT help the patient. It really hurts the patient and the treating doctor, and frustrates the efforts of treating physicians to provide care and to get proper diagnostic work done.
An outside observer of the system would conclude various basic things about the system as it exists presently.
Field offices, such as the Tyler office on Paluxy, is being bombarded with paperwork, faxes are getting lost, and in general, workers are being overworked and also, confused about what the new rules are.
Injured workers are being kept sick and injured and not allowed to get the care they need, and often, not even essential diagnostic imaging. They are stalled in an administrative and carrier based nightmare of denials, disputes, peer reviews, designated doctors, RMEs, and on and on to the point that many have chronic pain and clinical depression secondary to these problems.
Treating doctors are, without a doubt, quitting the system. It requires more time to do the extra preauthorization requests for staff and doctors, and the ever increasing mountains of denials, distputes, and requests for preauthorization and other authorizations that often never come, make the doctors want to discontinue this headache.
And, with the above situation, again, quo bene (who benefits) ? The patient certainly does not benefit when their treating doctor withdraws from a system which has become so hopelessly mired in paperwork, and so corrupt that nothing can get done within a reasonable time frame, and when they may not even get paid at all on patient care.
As noted earlier, if no health networks form this year, and the ADL base continues to shrink from attrition and frustration, and the ADL list disappears in 2007, it doesn't take an Einstein to see the system is heading for a true crisis point, attributable directly to implementation of the wrongheaded House Bill 7 provisions.
Also, some attorneys are pointing out that if insurance carriers set treatment parameters for doctors in these phantom health networks, and a patient sustains harm and additional injury or loss of function secondary to the enforcement of these diagnostic and treatment parameters, will these insurance carriers be liable for such damages, and at what point does the establish of such parameters and guidelines, constitute the practice of medicine without a license.
To say that House Bill 7 and its implementation is wrongheaded, is to vastly understate the case. I have looked at the Bill, and with few exceptions, it places the real power and advantage in the hands of the employer / insurance carrier, and how is this EVER fair to the injured worker? It manifestly is NOT !
There are several REAL and POSITIVE and CONSTRUCTIVE changes which WOULD have helped the WC system. One would have been to actually require ALL employers to be subscribers, as it is done in EVERY other state that has Work Comp.
From TDI's OWN WEBSITE, a page at:www.tdi.state.tx.us/wc/regulation/roc/nonsub93.html says :"Based on our analysis of TEC, TWCC and survey data, we estimate that 44 percent of Texas employers are nonsubscribers, and 20 percent of Texas employees are employed by non-subscribing employers. Nonsubscription increases as the size of the employer decreases. Forty percent of employers with two to five employees are nonsubscribers compared to 12 percent of employers with more than 1,000 employees."
And, I believe, we can only expect the number to rise, because there is NO punishment for NOT being a subscriber, and in point of fact, injured workers working for non-subscribers, find it all but impossible for an attorney to take their case. I have seen this latter situation in my own patients injured at non-subscriber businesses.
It is quite clear to me, and other doctors I have spoken with, some who have been in the system for 23 years, that the system as it is developing under the Commissioner and implementation of House Bill 7 provisions by way of rule adoption, is more broken than it ever was, and is more UNFAIR to injured workers than it ever was.
Furthermore, I am only a layperson, but I believe that the amount of cases in which the insurance carrier is acting in bad faith and unfair dealing toward the injured worker, is increasing at a phenomenal rate, dare I say, it is expanding exponentially.
Thus, my public comment on 134.600 must be as a subset of my overall comments on the implementation of House Bill 7 in general. It is the complete ruin of the system from a practical and logistical standpoint.
The Work Comp division of TDI is already overloaded, underpaid, and overworked, and as a result, the system is breaking down at a rapid pace.
I would dare to say that at this point, the real driving force behind what is happening at DWC is ENTROPY, the second law of thermodynamics, such that there is the tendency of things to go from a state of order, to a state of chaos, and just as in the physical world, as heat is input into the system (i.e. stress, agitation, frustration), the level of disorder and chaos increases.
I do not believe this is overstating the case.
Besides the mandatory inclusion of all businesses into a subscriber base, the next change that is needed is for a mandatory reassessment of all designated doctors.
As it is, a "bad" or "unfair" designated doctor can stop a patient's care, render them at MMI, and give them a low impairment rating, and can do this on worker after worker for years, without them being removed from the list. In my modification, workers would be able to rate the fairness of Designated Doctor exams, and if a designated doctor gets consistently low ratings, there needs to be an assessment of their practices and procedures, with perhaps spot second opinion exams to see if their results were verifiable.
Next, the newly created :Office of Injured Employee Counsel" needs to be aggressively marketed to injured workers, meaning that ALL injured workers currently in the system should receive an informational paper about the OIEC as a vehicle for consumer advocacy with regard to work comp issues. Most injured workers aren't even aware of this option.
Also, the whole process of Medical Dispute Resolution needs to be expedited and made easier for providers to avail themselves With as many denials and disputes as are being encountered, this process is very necessary, or doctors will not be paid,and if they are not paid, they cannot afford to do Work Comp on a "pro bono" level.
If proactive changes are NOT implemented, I predict rather strongly, this system is in for real problems, both procedurally and legally, and even worse, injured workers will be suffering even more than they are now.
Injured workers as citizens of Texas, deserve better than that.
Please take my comments into consideration as someone who is one of the quickly dwindling list of providers in East Texas.
Respectfully submitted,
John Raymond Baker , B.S.,D.C.
BAKER CHIROPRACTIC, PA
It is my understanding that public comments are accepted until 3-13-2006 on 134.600.
I have been a doctor involved with treating Work Comp patient since 1990. I am presently a Worm Comp provider on the ADL list for Longview Texas. It is my observation from day to day practice, that more and more doctors are deciding NOT to continue as providers.
The "new" system, as a division of the Texas Department of Insurance, as I understand it, will eliminate the ADL list in 2007. Also, as I understand it, HB 7 was the template on which this "new" Work Comp system would be built, with adoption of rules by Commissioner Betts.
Also, as I understand it, this new system has, as its basic fundamental unit, the development of "health networks". Here it is March 1, 2006, and these networks were , as I understand it, supposed to begin forming in the first part of January, 2006. These networks, comprised of doctors approved of by insurance carriers, would in essence, be "company doctors" and it would be from this list, that an injured worker would be forced to choose.
This in stark contrast to the previous system with a list of "any willing provider" on the ADL list, being able to be a treating doctor.
This in essence, really does rob injured workers of an essential weapon in this Work Comp War, and that is, the ability to choose a doctor who is not beholden to the insurance. I believe this is not fair to workers, and my injured worker patients agree with me, and are uniformly horrified at the proposed rules, which includes but is not limited to taking patients away from established treating doctors and forcing them to choose from the list of company doctors that will be referred to as a "health network".
Now, on to 134.600. Preauthorization of procedures and services that were not preauthorizable, is creating a real problem for many providers, specifically, Doctors of Chiropractic. Part of the reason is that , at this point, there appears on its face, to be differentially discriminatory denials given to many D.C.s in this state, when many MDs are experiencing fairly good success rates at preauthorization, and though I have not looked at Doctors of Osteopathic Medicine preauthorization success rates, I would guess they would have similar success rates to that of Medical Doctors ( M.D.s).
Also, as I understand it, per the emergency rule adoption, preauthorization is to cover occupational procedural codes and physical therapy codes as defined in the HCPCS.
As I have found out, Chiropractic manipulations / adjustments, with code numbers of 98940 through 98943, are OUTSIDE the range of procedures that must be preauthorized under the emergency rule adoption, and yet, in my office, we are seeing blanket denials of payment based on preauthorization, INCLUDING manipulations, which are , per my understanding, not required to be preauthorized.
Furthermore, as I understand rule, 134.600(f)(3)(A), which states: "(f) The carrier shall...(3) contact the requestor or employee by telephone, facsimile, or electronic transmission with the decision to approve or deny the request: (A) within three working days of receipt of a request for preauthorization...".
We are sending out proper preauthorization requests and NOT getting any answer within the mandated time frame. These carriers are NOT being compliant, and there seems to be no course toward forcing compliance on insurance carriers.
Thus, my complaint is that the preauthorizations are unduly burdensome, unevenly applied, denials are being applied in a discriminatory and arbitrary fashion, and even MORE importantly, the preauthorization rules are being used as a delaying tactic to avoid payment.
The obvious question is "How does this preauthorization system help the patient?" The answer is that it does NOT help the patient. It really hurts the patient and the treating doctor, and frustrates the efforts of treating physicians to provide care and to get proper diagnostic work done.
An outside observer of the system would conclude various basic things about the system as it exists presently.
Field offices, such as the Tyler office on Paluxy, is being bombarded with paperwork, faxes are getting lost, and in general, workers are being overworked and also, confused about what the new rules are.
Injured workers are being kept sick and injured and not allowed to get the care they need, and often, not even essential diagnostic imaging. They are stalled in an administrative and carrier based nightmare of denials, disputes, peer reviews, designated doctors, RMEs, and on and on to the point that many have chronic pain and clinical depression secondary to these problems.
Treating doctors are, without a doubt, quitting the system. It requires more time to do the extra preauthorization requests for staff and doctors, and the ever increasing mountains of denials, distputes, and requests for preauthorization and other authorizations that often never come, make the doctors want to discontinue this headache.
And, with the above situation, again, quo bene (who benefits) ? The patient certainly does not benefit when their treating doctor withdraws from a system which has become so hopelessly mired in paperwork, and so corrupt that nothing can get done within a reasonable time frame, and when they may not even get paid at all on patient care.
As noted earlier, if no health networks form this year, and the ADL base continues to shrink from attrition and frustration, and the ADL list disappears in 2007, it doesn't take an Einstein to see the system is heading for a true crisis point, attributable directly to implementation of the wrongheaded House Bill 7 provisions.
Also, some attorneys are pointing out that if insurance carriers set treatment parameters for doctors in these phantom health networks, and a patient sustains harm and additional injury or loss of function secondary to the enforcement of these diagnostic and treatment parameters, will these insurance carriers be liable for such damages, and at what point does the establish of such parameters and guidelines, constitute the practice of medicine without a license.
To say that House Bill 7 and its implementation is wrongheaded, is to vastly understate the case. I have looked at the Bill, and with few exceptions, it places the real power and advantage in the hands of the employer / insurance carrier, and how is this EVER fair to the injured worker? It manifestly is NOT !
There are several REAL and POSITIVE and CONSTRUCTIVE changes which WOULD have helped the WC system. One would have been to actually require ALL employers to be subscribers, as it is done in EVERY other state that has Work Comp.
From TDI's OWN WEBSITE, a page at:www.tdi.state.tx.us/wc/regulation/roc/nonsub93.html says :"Based on our analysis of TEC, TWCC and survey data, we estimate that 44 percent of Texas employers are nonsubscribers, and 20 percent of Texas employees are employed by non-subscribing employers. Nonsubscription increases as the size of the employer decreases. Forty percent of employers with two to five employees are nonsubscribers compared to 12 percent of employers with more than 1,000 employees."
And, I believe, we can only expect the number to rise, because there is NO punishment for NOT being a subscriber, and in point of fact, injured workers working for non-subscribers, find it all but impossible for an attorney to take their case. I have seen this latter situation in my own patients injured at non-subscriber businesses.
It is quite clear to me, and other doctors I have spoken with, some who have been in the system for 23 years, that the system as it is developing under the Commissioner and implementation of House Bill 7 provisions by way of rule adoption, is more broken than it ever was, and is more UNFAIR to injured workers than it ever was.
Furthermore, I am only a layperson, but I believe that the amount of cases in which the insurance carrier is acting in bad faith and unfair dealing toward the injured worker, is increasing at a phenomenal rate, dare I say, it is expanding exponentially.
Thus, my public comment on 134.600 must be as a subset of my overall comments on the implementation of House Bill 7 in general. It is the complete ruin of the system from a practical and logistical standpoint.
The Work Comp division of TDI is already overloaded, underpaid, and overworked, and as a result, the system is breaking down at a rapid pace.
I would dare to say that at this point, the real driving force behind what is happening at DWC is ENTROPY, the second law of thermodynamics, such that there is the tendency of things to go from a state of order, to a state of chaos, and just as in the physical world, as heat is input into the system (i.e. stress, agitation, frustration), the level of disorder and chaos increases.
I do not believe this is overstating the case.
Besides the mandatory inclusion of all businesses into a subscriber base, the next change that is needed is for a mandatory reassessment of all designated doctors.
As it is, a "bad" or "unfair" designated doctor can stop a patient's care, render them at MMI, and give them a low impairment rating, and can do this on worker after worker for years, without them being removed from the list. In my modification, workers would be able to rate the fairness of Designated Doctor exams, and if a designated doctor gets consistently low ratings, there needs to be an assessment of their practices and procedures, with perhaps spot second opinion exams to see if their results were verifiable.
Next, the newly created :Office of Injured Employee Counsel" needs to be aggressively marketed to injured workers, meaning that ALL injured workers currently in the system should receive an informational paper about the OIEC as a vehicle for consumer advocacy with regard to work comp issues. Most injured workers aren't even aware of this option.
Also, the whole process of Medical Dispute Resolution needs to be expedited and made easier for providers to avail themselves With as many denials and disputes as are being encountered, this process is very necessary, or doctors will not be paid,and if they are not paid, they cannot afford to do Work Comp on a "pro bono" level.
If proactive changes are NOT implemented, I predict rather strongly, this system is in for real problems, both procedurally and legally, and even worse, injured workers will be suffering even more than they are now.
Injured workers as citizens of Texas, deserve better than that.
Please take my comments into consideration as someone who is one of the quickly dwindling list of providers in East Texas.
Respectfully submitted,
John Raymond Baker , B.S.,D.C.
BAKER CHIROPRACTIC, PA
posted by chiropractic at 10:25 AM
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