Significant Changes to MTGs Discussed at February WCAC Meeting

The meeting of the Workers’ Compensation Advisory Council (WCAC) on February 23rd focused almost exclusively on changes to the Medical Treatment Guidelines (MTGs) Title 40, Chapter 23 and 27, as published in a Notice of Intent (NOI) in the February 2017 edition of the Louisiana Register.

Greg Hubachek, a Metairie-based attorney representing workers’ compensation claimants presented the proposed changes. Hubachek, along with Office of Workers’ Compensation Administration (OWCA) Director Sheral Kellar; WCAC Co-Chair Chuck Davoli; Louisiana Automobile Dealers Association President/Administrator Will Green; and Homebuilders SIF Administrator Michael Morris, were the members of the task force responsible for the NOI.

The task force concept to address problems with the MTGs dates back to 2014, but faced roadblocks in the past. In introducing Hubachek, Davoli described the path to the NOI now before the Council and the public as an exercise in “kicking the can” and in “hiding the ball.” Davoli also warned the parties assembled that if they plan to speak in opposition to the proposed changes, that “they should have something better to contribute.”

 

The complete red-lined version of the NOI showing all of the proposed changes is available for download at the bottom of this page.

 

The most significant items discussed in Hubachek’s presentation to the Council were as follows:

 

  • In an effort to curb tacit denials (i.e. de facto denials resulting from carrier/self-insured employer inaction), language added to Subsection D “provides that after a health care provider has submitted to the carrier/self-insured employer the request for authorization and the information required pursuant to this Section, the carrier/self-insured employer shall notify the health care provider of their action on the request within five business days of the receipt of the request.”
    • Further, if a carrier does not act within five days “upon a finding by the Director of three or more [such] instances in a six month period, be subjected to one administrative penalty pursuant to LAC 40:109. Any subsequent instances of a failure to act on a request for authorization per this Section may, upon discretion of the Director, be subjected to an administrative penalty pursuant to LAC 40:109 for each instance.”

 

  • To address disputes regarding new evidence and extraneous or inappropriate information submitted to the Medical Director, as well as to get “laser focus on what exactly is being requested,” Hubachek and team added and removed numerous paragraphs from Section C  – Minimum Information for Request of Authorization, leaving the following language:
    • “Information submitted to the carrier/self-insured employer, and if subsequently provided to the medical director, associate medical director, or worker’s compensation judge, must be directly related to the medical necessity of the request for authorization.”
    • Further, “no information shall be provided to the medical director or associate medical director that has not already been provided to the carrier/self-insured employer with a LWC-WC-1010 or the remand/new evidence section of the LWC-WC-1010.”

 

  • Because, as Hubachek explained, “the Director wants to put some concrete information out there for health care providers,” carriers and self-insured employers will now be required to provide a contact number and fax number, in addition to the already designated email address, for questions about 1010s and non-responses or tacit denials. Failure to update these numbers (for example, when switching utilization review companies) within 10 days of any changes will result in an administrative penalty.

 

  • To further address new evidence, Subsections E and F were added.
    • Subsection E “Submission of Additional Information after Initial LWC-WC-1010 and New Evidence Admitted by the Workers’ Compensation Judge”
      • Hubachek explained that subsection E provides “an option, not a requirement” for providers or the employee’s attorney to submit any new evidence like diagnostic studies and other relevant data to the carrier/self-insured employer in an amended 1010. “The hope is that if this new evidence is relevant and critical that the carrier will go back and approve the 1010,” Hubachek explained. “There is a pause in the proceedings […] and the carrier will again have those five business days to re-consider.”
      • Michael Morris, WCAC and MTGs task force member, weighed in on this subsection saying that he believes that allowing the employee’s attorney “to now file under the remand new evidence, which has not been the case before […] will result in care moving through.”
    • Subsection F “New Evidence Effect on Pending LWC-WC-1009 and LWC-WC-1008”
      • Council member Shannon Lindsey expressed concern over these provision, saying that “perhaps the new evidence rules will increase delay” or provide an opportunity for a carrier to submit an SMO “which presumably the Medical Treatment Guidelines were put in place to alleviate the injured worker of.” Lindsey specifically cited Subsection F part c on this front and whether or not indemnity issues could potentially be stayed during the new reconsideration period. Hubachek clarified that the hearing rules in this NOI are designed to only address issues under the MTGs.

 

  • To address problems with the variance procedure, Subsection L “Variance to Medical Treatment Schedule” removes the current language of “higher ranking and more current” medical evidence than the MTGs and replaces it with both the clinical opinion of the treating physician and: “any other evidence supporting the position of the health care provider or the employee demonstrating by a preponderance of scientific medical evidence that a variance from the medical treatment schedule is reasonably required to cure or relieve the claimant from the effects of the injury or occupational disease given the circumstances.”
    • WCAC members Dr. Pierce Nunley, Dr. Mark Kruse and Dr. Daniel Gallagher expressed concerns over the difference between the legal and the medical definitions of “preponderance of the evidence” and explained that the “art of medicine” is making decisions based on the individual patient. Dr. Nunley also explained that incorporating new technology is a problem with the MTGs, in that more recent studies (within the last three years) are not often contemplated therein.

 

Public comment after Hubachek’s presentation of the NOI:

 

A full meeting for public comment will not be held until March 31st, 2017, at the LaSalle Building (617 North 3rd St. Baton Rouge) in the LaBelle Hearing Room beginning at 9:30 AM. However, WCAC Co-Chair Chuck Davoli (WCAC Chair/OWCA Director Sheral Kellar was not present) allowed time for a few members of the public to react to the NOI as written. Davoli emphasized that the purpose of the detailed presentation of the NOI was to get input from the Council and system participants in order to provide the maximum amount of transparency possible.

Jill Leonard, AVP of Claims Operations at the Louisiana Workers’ Compensation Corporation (LWCC), addressed the Council first and had relatively few initial issues with the draft. In addition to some technical issues, Leonard explained that, “It’s important to payors that any time information related to a 1010 or medical dispute is faxed or emailed to the payor that the specific email and fax number on file with the OWC is used – and it should say that in the rules. We have so many instances where we do get the 1010s to the right number, but then when something else is submitted they fax it to the adjuster.” Leonard requested a specification in the draft to that effect.

Further, Leonard requested that the requirement to fax all of the 1010 approvals to all involved parties as written in the new draft is “resource intensive” and would be a “burden” to her staff, which she said processed over 9,000 1010s in 2016.

Mary Lou Salley, an attorney in Shreveport spoke heartily against the proposed changes, saying that “ with all deference and respect to the people who drafted this stuff – it’s trash.”

Salley explained that her concerns stem from the new requirements for doctors under the remand procedures because “there are only a handful or orthopedic surgeons and a handful of pain management doctors [in the Shreveport region] that will accept workers’ comp.” She is concerned about a “chilling effect” among MDs unwilling or unable to handle the bureaucracy associated with the MTGs more generally and the new rules. She bemoaned the fact that even treatment listed in the MTGs is sometimes not approved and asked, “Why is it the doctor’s job to prove that this treatment is reasonable and necessary when it’s in the book? It should already be done. So my suggestion is this,” Salley continued, “Has anyone ever thought about having a 1010 where the doctor identifies where in the Guidelines he thinks [the treatment] falls, versus a true variance form? We don’t need paralegals in the doctor’s office.”

Trey Mustian, a Metairie-based attorney representing claimants and current President of Louisiana Workers’ Advocates echoed some of Salley’s thoughts, saying that “generally, this adds another layer of bureaucracy especially for the health care providers, that is not necessary to achieve the stated purpose of 1203.1 – to get quick, expeditious care to injured workers.”

 

The next meeting of the Workers’ Compensation Advisory Council is set for March 23rd, 2017, at the LaSalle Building in Baton Rouge in the LaBelle Hearing Room, beginning at 9:30 AM. Note that this falls before the public comment meeting for this NOI, which will be held at the same location, same time, on March 31st.

 

Download the complete red-lined DOI: NOI MTGs Feb 2017

 

Image Credit: Excel Medical Waste Management Louisiana

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *