Matt Lewis Law Dallas Texas - Disability Management & Treatment Guidelines

THE ODG AND MDA Disability Management & Treatment Guidelines 2008 Matthew B. Lewis (972) 644-1111 matt@mattlewislaw.com

Rule 137.1Disability Management Concept • Applies to non-network claims with dates of injury beginning January 1, 1991 • (a) Disability management is a process designed to optimize health care and return to work outcomes for injured employees to avoid delayed recovery in the Texas Workers' Compensation System.

(b) This chapter is designed 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. The Division may use these tools for the following purposes, including, but not limited to:

(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 Commissioner of Workers' Compensation.

This chapter takes precedence over any conflicting payment policy provisions adopted or utilized by the Centers for Medicare and Medicaid Services (CMS) in administering the Medicare program.

Independent Review Organization (IRO) decisions regarding medical necessity which are made on a case-by-case basis, take precedence in that case only, over adopted treatment guidelines, treatment protocols, treatment planning and Medicare payment policies.

Rule 137.100Treatment Guidelines • HCP’s shall provide treatment in accordance with the current edition of the Official Disability Guidelines – Treatment in Workers’ Comp unless the treatment requires preauthorization under Rule 134.600

Services provided in accordance with the Guidelines is presumed reasonable and reasonably required (medically necessary).

Carrier is not liable for services that exceed the Guidelines unless provided in an emergency or preauthorized under Rule 134.600

Even though services provided may be within the Guidelines’ recommendations, the Carrier may retrospectively review and deny reimbursement for services that were not preauthorized on the basis of medical necessity. • That denial must be supported by documentation of evidence-based medicine that outweighs the presumption of reasonableness.

Based on the layout and discussion in the ODG, this probably means that in addition to its RME or Peer Review report, the Carrier’s position will have to be supported by research studies. These should be included with the RME or Peer Reviewer’s discussion in a report – not based on an adjuster’s perusal of the applicable medical literature.

Any treatment that exceeds the Guidelines or is not included in the Guidelines “may” require preauthorization. • Medical Advisor Howard Smith, M.D., J.D., has issued a memo stating that such treatment does in fact “require” preauthorization. • Jaelene Fayhee, Executive Deputy Commissioner, Policy and Research has issued a similar memo.

Ms. Fayhee urges carriers to consider medical necessity even if the HCP did not request preauthorization for treatment that exceeds the Guidelines during this transition period. • TLC 413.018 requires the Division to review the medical treatment provided in a claim that exceeds the Guidelines. • Any medical necessity disputes will be determined by an IRO.

Carrier cannot deny treatment solely because the diagnosis or treatment is not specifically addressed by the Guidelines. Still a question of reasonable and necessary care.

Rule 137.10 Return To Work Guidelines • The Medical Disability Advisor, Workplace Guidelines for Disability Duration • Use the disability duration values as guidelines for the evaluation of expected or average return to work time frames. • Duration values are considered to be a reasonable length of disability.

To Be Used By: • HCP’s to establish return to work goals/plans for safely returning injured employees to “medically appropriate” work environments. • Insurance carriers as a basis for requesting a DD to address return to work and for case management or vocational rehabalitation

Employers, Carriers, Employees & HCP’s to improve communication among the parties about returning to work. • This was the main focus of the DWC Disability Management Brown Bag Lunch.

Mitigating circumstances that may affect disability duration are co-morbid conditions, medical complications “or other factors.”

Rule 137.10(e) • The duration values are not absolute values • They 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 recovery has not occurred

A carrier may not use the Guidelines as the sole justification or the only reasonable grounds for reducing, denying, suspending or terminating income benefits.

What Does The DWC Say About The Guidelines? • Fast Facts • Provide expected lengths of disability durations, which represent points in time when additional evaluation and communication among the HCP, injured worker, carrier and employer should occur if an injured worker has not fully recovered and returned to work

Disability duration values are points in time when the treating doctor should evaluate when the injured employee should be able to return to work and with what restrictions. • Communication among the parties should include proposed modifications to job duties and activities.

Adjusters should communicate with the treating doctor and the injured employee regarding return to work goals and monitor the injured workers’ progress • Adjusters should assist the treating doctor and the injured employee in communication with the employer regarding proposed job modifications.

Online versions of the Guidelines are the most current.

Using The Treatment Guidelines • Early access to appropriate medical treatment for injured workers is a key determinant of successful outcomes for employers, providers, and insurers, as well as the workers’ themselves (Page 13). • Provide treatment planning and procedure guidelines • Procedure Summary is the most important section

Using The Disability Guidelines • These values do not represent the absolute minimum or maximum lengths of disability at which an individual must or should return to work. Rather, they represent important points in time at which, if full recovery has not occurred, additional evaluation should take place. These values are designed to allow for individual differences in recovery time based on the numerous variables that impact disability duration (Page xxxiii).

For each diagnosis and job classification, there is a minimum, optimum, and maximum disability duration. • First, identify the diagnoses. • Second, determine the job classification. • Finally, consider the disability duration for each diagnosis. • Disability duration tables provide calendar days, not necessarily work days.

Job Classifications • Sedentary Work – exerting 10 pounds of force occasionally and/or negligible amounts frequently to move objects. • Light Work – 20 pounds occasionally, 10 pounds frequently or negligible amounts for constant force. Usually requires walking or standing to a significant degree.

Medium Work – 50 pounds occasionally, 20 pounds frequently or 10 pounds constantly. • Heavy Work – 100 pounds occasionally, in excess of 50 pounds frequently, or 20 pounds constantly. • Very Heavy Work – in excess 0f 100 pounds occasionally, in excess of 50 pounds frequently, or in excess of 20 pounds constantly

Optimal vs. Maximum Duration • Optimum recovery time assumes the case is optimally managed by the provider and that there are no complications or co-morbid medical conditions involved.

Maximum recovery time is the recommended point in time at which additional case information should be requested from the treating physician to determine when the patient may be able to return to work.

Suggested information to be collected includes specific information on the presence of co-morbid conditions or complications, work accommodations available, and medical treatment administered.

The maximum length of disability is not a definitive cutoff point beyond which individuals must return to work at the same level of efficiency as prior to their injury or illness (Page xxxiv).

Defining Disability • TLC defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage. • MDA defines disability as a state in which the individual is unable to perform his or her job at the same level of efficiency as before the injury occurred. Disability is not necessarily correlated to the presence or absence of pain or other symptoms.

Factors Affecting MDA Disability • Factors that influence disability are not included in the duration tables. They are: • Psychological factors • Severity of the injury • Availability of effective medical treatment • Age

Complications • Medication • Return to Work Programs / Modified Duty availability

Observations / Comments • The definitions of disability in the MDA vs. TLC are quite different. • MDA focuses on function, TLC (with the AP’s help) on earnings • MDA excludes from disability time to attend doctor appointments and therapy. These are not “disability events.”

Disability (MDA), length of disability and maximum duration periods are all at odds with each other. Disability is the inability to perform the pre-injury job at the same level of efficiency. Length of disability refers to returning to “productive endeavor.”

Maximum duration discussion suggests that if that time period is exceeded, information should be gathered on the availability of work accommodations. • Productive endeavor and work accommodations are not the same as return to work at the same level of efficiency as before the injury.

If the maximum duration value suggests the need to consider light duty, how then can the value in the maximum duration column be the end of disability as some Hearing Officers are suggesting? • If Rule 137.10 suggests that the disability duration period is a point in time to consider a DD, then isn’t the DD process just an end run around this whole disability management idea?

How will the MDA definition of disability affect traditional disability cases involving light duty restrictions or termination? • Doesn’t the TLC definition trump the MDA? • The disability guidelines seem a lot “grayer” than the treatment guidelines.

Matt Lewis Law Dallas Texas - Disability Management & Treatment Guidelines