[A guest post from David Price, PRIUM's Compliance Counsel. I'll direct any comments you might to have for response.]
“If you would persuade, you must appeal to interest rather
than to intellect.”
Promoting change is hard.
I feel like it’s particularly difficult in the sphere of workers’
compensation. Between physicians,
injured workers, payers, employers, and attorneys, there are multiple competing
interests at stake, and policy makers are hesitant to change the existing laws
and risk inviting backlash from the groups that don’t feel like they’re
benefiting from the change. The people that
shape workers’ compensation law – whether they’re legislators, administrative
officers, or judges -- want to promote the public good, but most importantly,
they want to make sure that the system is fair.
They want to make sure that no one is getting cheated. Once they feel like someone is getting
cheated by the law, change suddenly becomes much easier.
When a new law is being discussed, there’s always a
temptation for us to discuss only the aspects of the changes that benefit us –
to only consider our side of the overall story.
What we say might be true, but it’s not always persuasive, particularly
if we don’t discuss how the change will benefit other interested groups. When we only talk about how the change
benefits us, it’s no surprise when some of those other groups start to complain
that the change is unfair… or when policy makers start to believe them.
Promoting good policy requires honesty, but more
importantly, it requires effective
I recently had the opportunity to attend the annual Tennessee
Workers' Compensation Educational Conference. This year, the conference
was set up so that audience members could text their comments and questions to
the speakers throughout each presentation. This way, audience members
could ask their questions while they were still fresh in their minds, and the
speakers could finish their presentations without interruption and then come
back to address the questions afterward. As a bonus, because the comments
were submitted anonymously, people weren't afraid to ask questions or offer
their perspective on each issue.
For better or worse, there was a lot of honesty in the room.
Dr. Robert Snyder, the Medical Director of the DWC,
discussed the DWC's plan to adopt treatment guidelines by 2016.
Additionally, several presenters made reference to Tennessee's current UR
process, and there was some brief discussion of what the UR process would look
like once the treatment guidelines were implemented.
The comments from the audience, understandably enough, were
more concerned with how UR could be used effectively to reduce medical costs.
Unfortunately, many of the comments were essentially expressions of
outrage at the irresponsibility and attitude of entitlement of injured workers. Commenters made a strong case for how UR (and
by extension, the guidelines) could be a useful tool to beat drug-seeking
claimants. That may not have been the
most effective form of honesty.
With legislators and workers' compensation judges in
attendance, commenters touted UR and the guidelines as purely cost-reduction
tools and, at one point, a presenter, in response to a question, made the
suggestion that in 2016, adjusters, not UR physicians, should apply the new
treatment guidelines, and that any request complying with the guidelines should
not be subject to UR.
The overall message was clear: the point of treatment
guidelines is to reduce medical costs.
Since they’re really just a tool for the adjuster to use to “beat” the
injured worker, maybe we should let the adjustor apply them directly, without
getting a medical opinion.
If you ask any claimant's attorney, they'll tell you that all injured workers
(or at least their
clients) have a
legitimate medical need for whatever treatment their doctors recommend, and
that payors are just using treatment guidelines and UR as tools to get out of
paying for treatment in order to save money.
UR and treatment guidelines are just tools to “beat” the injured workers
-- at least, that’s how they tell the story. Notably, their version frames
UR and treatment guidelines as tools aimed solely at saving payors money.
They do this because they know that if they can show UR and treatment
guidelines as being implemented solely to benefit the payor by harming the
injured worker, it makes the whole process seem unfair. Any policy maker with the slightest sense of
empathy will try to find a way to undermine or limit application of the
So here's where I say something that may be controversial:
The primary goal of UR and evidence-based treatment guidelines is to
ensure proper treatment for the patient.
Cost reduction is a bonus --
a secondary effect.
Don't get me wrong: from the perspective of insurance
carriers and self-insured employers, cost reduction is going to be the primary
goal. Most payers are for-profit entities, and their focus is (and should
be) on reducing costs. That said, policy makers have a different role.
Their focus should be on the public good, and if we continue to allow the
debate to be framed as "patients' medical need vs. payers' bottom
line," payors will lose every time.
If we talk about treatment guidelines as something that only benefits
payers, we can expect to see those guidelines undermined at every opportunity.
We need to be careful in how we tell the story.
There is a very real public policy battle here, and not just
in Tennessee. In Louisiana
several courts have limited the application of the state's treatment
guidelines. In California, the infamous Dubon
decision is being used by
injured workers' attorneys as a means to attempt to escape the UR/IMR process.
has implemented a closed formulary based on the Official Disability Guidelines,
but the state legislature has effectively limited application of the formulary
based on date of injury. (Only claims
under the jurisdiction of the new Workers’ Compensation Commission – those
claims with a date of injury of 2/1/14 or later – are subject to the closed
formulary). In multiple jurisdictions, we're seeing judges and other
policy makers limit the opportunities to apply objective medical standards.
Why? The primary reason is a concern for due process.
At the risk of greatly over-simplifying the points raised in each of
these instances, the general underlying concern is that the objective medical
standards aren't really objective at all (or at least aren't being applied
objectively), and so a "fair" determination of medical necessity can
only come from a judge.
Now, in Tennessee, the DWC is planning to adopt treatment
guidelines by 2016, but which guidelines will be adopted -- or how they will be
utilized -- remains to be seen. We can be certain that the way we talk
about treatment guidelines and the UR process now will greatly affect the way
the process is shaped as the guidelines are implemented, and whether or not
policy makers see application of the guidelines as an "unfair"
intrusion onto injured workers' right to due process.
We can be just as certain that when the guidelines are
implemented, work comp and appellate judges will see a host of objections.
No doubt, many of those objections will echo the arguments that have been
made in other jurisdictions.
If we talk about treatment guidelines as something designed
to benefit only the payer -- and especially
if we promote them as something that payers should be able to use without
requiring a physician’s opinion (I don’t envy the attorney that has to defend a
non-medically-trained adjusters determination that a physician’s recommended
treatment isn’t medically necessary) -- we’re buying into a very dangerous
story. It’s the same story every injured
worker’s attorney will tell in 2016 when the guidelines are applied.
To be honest, treatment guidelines do reduce overall medical
costs, but that's not the whole story.
If that's how we allow the discussion to be framed, we can expect to see
more limitations on when and how guidelines are applied -- in Tennessee and
The vital part that’s missing from that story is that, in
reality, evidence-based treatment guidelines are designed to benefit injured
workers, and that’s precisely what they do.
The reality is that injured workers usually don't know what
treatment is appropriate; they only know what their doctors tell them.
The reality is that treating physicians are torn between their duty to
help the patient recover as quickly as possible and the lingering financial
incentive toward excessive treatment.
The very nature of the workers’ compensation system, and sometimes
even the patients
, can pressure physicians to treat in ways that contradict
their best medical judgment. At the same time, even the most honest and
strong-willed treating physicians are hard-pressed to keep abreast of current
medical evidence as they try to operate a successful practice, and many are
particularly under-educated regarding the proper prescription of opioids for
pain. The reality is that evidence-based treatment guidelines provide an
objective standard of care and, when used correctly, can protect the injured
worker from improper treatment, overdose, and addiction.
That's the truth, and that's how we should tell the story.