Patrick Robinson, current Director of the Office of Workers’ Compensation Administration, has served in his position for about eleven months in what was initially an interim appointment prior to the election of a new gubernatorial administration. Now that John Bel Edwards has been elected governor and the process of cabinet positions is ongoing, we sat down again with Robinson to get his perspective on what he’s been able to accomplish, what his plans are, and what remains to be done.
Comp Blog: So first off, do you expect to keep the Directorship as we move closer to inaugurating Governor-elect Edwards? Do you want the job?
Robinson: I would love to keep the job, but I understand that a new administration is coming in and they have their own new ideas and new people – so it certainly won’t break my heart to go back and be a judge in Shreveport (District 1W). We had an ad hoc judge – Carey Holliday – through the end of November in that district, so Chief Judge Kellar and other district judges are filling in as needed. We’re hovering until the new Director is appointed.
Comp Blog: Back when you took the position and Comp Blog interviewed you, we spoke about a number of issues. Opioid prescribing and the fee schedule update were high on your list of priorities. How would you assess what you’ve been able to accomplish in the past eleven months?
Robinson: With the fee schedule, I would have liked to accomplish more on that, but I am happy that we were able to move the ball forward. I think we drove the discussion a lot. My thought when I started in February was not that we could ramrod a fee schedule through, but that we could at least get something on the table, and we did that, several times in fact. We submitted an initial proposal, it had issues, we went back and remodeled that.
We also spoke to a variety of stakeholders and took a look at the concerns they raised, including whether or not we want to tie the updated fee schedule to Medicare – or if not tie it to Medicare, then to look to it for guidance.
Having done all that, we will leave two proposals on the table for the next administration. One is a more ambitious change and would require a substantial revision to the statute. Among other things, it uses American Medical Association RVUs and Louisiana-specific conversion factors. It also calls for a “reimbursement schedule advisory council” composed of employee, employer, provider representatives, to better maintain the schedule. Alternatively, we proposed amending the current administrative rules to address particular problems: a low inpatient per diem, high outpatient costs, and by report codes that are not controlled or well defined. Under that method, we would adopt a 40 percent increase in the current per diem, base outpatient care on Medicare’s HOPPS reimbursement multiplied by a to-be-determined percentage, and set specific fees in place of by-report codes. There are about 50 BR codes that cause issues. Like most other services, those codes have established relative value units. We would set a reasonable Louisiana conversion factor generating specific fees for those procedures and treatments.
Of course, there are political considerations and realities. Whether either alternative survives past January or whether we move in an entirely different direction is up to the new administration. Around July, as the election was looming, people became more reticent to move forward with anything because we just didn’t know what was going to change, which is understandable. I’m hoping that something will get done during the next Legislative Session.
Comp Blog: Are you expecting a busier year for workers’ comp measures during the 2016 Session?
Robinson: Well, from when I wake up in the morning until I go to sleep at night my whole world is workers’ comp, so I think there are a ton of issues that need to be addressed in the Legislative Session. However, I’m sure there are more important priorities, the budget being the major one. And honestly, the budget affects every part of state government, including us, because we’re all dealing with mid-year cuts right now.
Comp Blog: How is the Louisiana Workforce Commission handling those mid-year cuts?
Robinson: The agency’s cut is $1.2 million I believe, and OWC’s portion is about $800,000 of that.
Comp Blog: That’s a significant portion of the total cut falling to OWC, do you know why that is?
Robinson: I don’t pretend to have the knowledge of the budgeting details, but my impression is that many non-OWC parts of LWC receive federal money that falls outside of the cuts. Other than our OSHA Consultation and part of the Records sections, OWC doesn’t really have that benefit. The real point is that, in OWC and across state government, we have to become leaner. There’s no room anymore for any kind of fat.
Comp Blog: Do you anticipate these cuts having any effect on the system’s current delays in treatment approvals, particularly with the difficulty OWC has had in finding a doctor to fill the Medical Director position?
Robinson: We have someone starting on January 4th, Dr. Ian Gardener. It’s a hard position to fill and thankfully, our stakeholders have been amazingly tolerant of the delays in the medical review process. Early in the new year, we’ll need to discuss the backlog that has accumulated during this transition time though. Otherwise, it’s going to affect the new Medical Director for several months to come, so we need to address it. There are any number of ways that folks have suggested to remove that glut, including an “administrative denial” when a 1009 decision is not issued within 30 days. That is not a perfect solution, but it would at least allow disputes to move forward. In the meantime, if providers can resolve a payor’s original basis for a denial and re-submit a 1010 request, they should do so.
We are fortunate to have Dr. Gardener and I think he’ll do a great job. I do think we need to consider an amendment to the current statute regarding the Medical Director and the Associate.
Comp Blog: If an amendment could get through, what would you want to the Medical Director position to look like?
Robinson: Ideally, I’d like to have a Medical Director and then a panel of associate physicians that we could use (either part time or contract employees) that cover the range of specialties most relevant under comp. That way we have an orthopedist looking at another orthopedist’s treatment recommendations, a pain management doc looking at that treatment regimen, et cetera.
Comp Blog: Looking towards the future, whether you’re in this position or not, what do the major priorities need to be?
Robinson: One of the things that has shifted my perspective since I’ve taken this job is the need to continue emphasizing return-to-work. It’s not a cost issue; it’s a life and health issue. It’s better for people to recover and go back to work, than to be stuck in the comp system indefinitely. The more quickly we help people recover and get back to work, the better our system is, the more employers come to the state, the more opportunities there are for all workers, injured or not. We need to keep emphasizing that as part of what workers’ comp does, because that’s our mission.
A second issue is opioid medications. People are probably tired of me trumpeting this, because every time I talk it comes up, but it’s a serious problem and we have to address it one way or another. The discussion and concerns surrounding a formulary can be divisive and distract from the issue. All of the data suggests that we’re prescribing too many opioids, and the vast majority of doctors I’ve spoken to agree with that assessment. It’s not a cost issue, it’s a return-to-work issue. We’re leaving addicted workers on an island with no alternative, and we have to come up with a better option. However this gets done – whether it’s a formulary, better pharmaceutical treatment guidelines, whatever – the workers’ comp community, and the Medical Advisory Council in particular, has to address the issue.
Comp Blog: Could you elaborate on the formulary “cost cutting” narrative?
Robinson: A lot of this really depends on the metric used to determine the success of the formulary. Other states release numbers saying that they cut opioid prescribing by 40 or 50 or whatever percent, but to me, that’s not necessarily the best way to measure effectiveness. If we institute a formulary, the measurement should be: are we now getting people back to work faster? Are they recovering more quickly? Are they getting a better outcome? There is some subjectivity to that, but I think that’s necessary to do good work for people. If we just cut an injured worker’s narcotics prescriptions because we set a hard line of twelve weeks or whatever that they’re allowed to have it, and then they wind up switching to heroin, we’re not doing our job. There have to be better alternatives available.
Comp Blog: What other priorities are high on the list moving forward?
Robinson: The Medical Treatment Guidelines are obviously a big one. We have a new MAC, and one thing we have done is to create two new non-voting members – one representing employees and one representing employers – so that they can share their perspective. Robin Krumholt, an attorney in Baton Rouge, has agreed to represent employees, and the employer representative should be set soon. This should be helpful and address concerns about the transparency of the process. We dropped a 200 page update on the community in September. It had been reviewed and approved by the MAC, but other stakeholders hadn’t seen it and were understandably concerned. We’re aiming for better transparency with this. The new MAC will reconsider that update. I’ve also asked the new members to include a formulary/opioid sub-panel, and we’ve added a pharmacist and an addiction specialist for that purpose, among others. Treatment guidelines are a good idea intended to expedite better medical treatment. We just need to implement them better so that they do that.
To that end, moving forward we also need to give attention to how we deal with injured workers who have reached maximum medical improvement but still need palliative care. At this point, our guidelines focus on “functional improvement.” Functional improvement is important and needs to remain a focus. However, the Act entitles employees to appropriate medical treatment, including care that maintains function even if it doesn’t improve it. Our MAC members will look at that issue as well.
Comp Blog: Anything else?
Robinson: On the process side, we’ve made some things more complicated than they need to be, which is partly why doctors believe they must charge more for comp. If we’re going to tell providers “your fees are too high,” then we need to listen when they say, “that’s because I have to employ three people to process my comp billing.” We have to make the process simpler where we can.
We also need to figure out a way for attorneys to get paid in medical-only claims. With the medical review process, an attorney may file a 1009, win and get the treatment, and be left with no way to be paid. That drives good lawyers away from comp. Workers’ compensation is complicated and lawyers help people who are unfamiliar with it navigate the thousands of statutes and rules that apply. We’ve got to figure out a way to compensate lawyers who successfully recover medical benefits without unfairly penalizing employers who play by the rules.
Comp Blog: There was an interesting Third Circuit case recently which addressed vocational rehabilitation and the problems associated with it in our system. What are your thoughts on improving that, given your emphasis on return-to-work?
Robinson: My feeling is that, if we’re going to make return-to-work our goal, then we need to raise voc rehab from its status as a somewhat lower-tier benefit. There’s a trust issue that is detrimental to rehabilitation. Because the employer or the insurance company chooses the voc rehab counselor, the claimant or the claimant’s attorney is often going to have suspicion about their allegiance. My admittedly raw suggestion is to route rehab through OWC and allow the office to appoint a neutral counselor from an approved list. It is definitely a “rough draft” and I’m sure there are lots of ideas out there that we should look at.
Comp Blog: All in all, what have you learned in this job?
Robinson: One thing I’ve learned is that once one side gets control over something, they are not inclined to give it up. That makes change, even positive change, hard to come by sometimes.
There is also an inherent suspicion among stakeholders at times. At some point when I met with a group of stakeholders about the fee schedule, one of them said, “If they’re for it, then I’m against it.” Again, that level of mistrust can make it hard to move forward.
I’ve also learned how little I know, and have been dazzled by the number of really smart, good people in this industry. We focus a lot of effort on the small percentage of “problem” actors. But the vast majority of people in comp agree on the desired ends even if they disagree on the means. The goal has to be helping people recover from injuries so they can get back to work and move on with their lives.