The Judge, The Doctor, The Patient: Who Should Decide?

Why is it that we have such a hard time in workers' compensation breaking free of the concept that judges shouldn't be making medical decisions?  And why do the judges making these decisions fail to recognize the unintended (and negative) consequences of their actions?

Enter Judge Donald Johnson of the 19th District Court in Louisiana.  Judge Johnson recently ruled that the state's approach to dispute resolution surrounding injured worker treatment requests is unconstitutional based on the fact that patients are being deprived of due process rights.  Since 2011, treatment requests from workers injured in Louisiana that are denied by utilization review are ultimately adjudicated by the medical director at the Louisiana Office of Workers' Compensation (OWC).  This way, a physician ultimately decides the applicability of the guidelines given the individual injured worker's clinical circumstances.

Judge Johnson has now suggested we go back to judges making these decisions instead.  I call it a "suggestion" because his decision isn't being enforced until the Supreme Court weighs in (likely some time in the next year).

And the usual suspects have taken their usual positions:

Payers are obviously displeased.  Medical costs had decreased and disability benefits had stabilized in the last few years in Louisiana.  The medical treatment guidelines and dispute resolution process put in place in 2011 appeared to be working.  

Plaintiff's attorneys are celebrating the decision.  Now that they have a shot at going back to the old way of resolving treatment disputes (i.e., requesting a hearing with an administrative law judge at the OWC), there's increased likelihood of care being delivered that's not in alignment with evidence based medicine.  Forget that several defense attorneys have observed that the new process actually resolves disputes faster than the hearing/ALJ approach.

This happens again and again as reforms are enacted to move medical decisions away from judges and back with doctors (where they belong).  Judges routinely attempt to take that power back.  Recall this same debate in California over the Dubon decision?  

Injured workers are best served by medical doctors making medical decisions.  Sometimes, that will involve multiple medical doctors: the treating physician, a peer reviewer, and perhaps the medical director of OWC.  And those doctors may not agree with one another.

But isn't an informed dialog and exchange of information among a group of physicians a vastly superior way to reach the right medical decision than relying on a judge to collect medical opinions, and with no medical expertise, decide which opinion should prevail?  

Michael
On Twitter @PRIUM1

Guidelines: How to Make Them Matter

There has been a lot of talk in the last couple of weeks about medical treatment guidelines.  North Carolina, Tennessee, Arizona, and several other states are looking into adoption of guidelines.

There is a lot of discussion about "evidence-based" vs. "consensus-based" guidelines as well.  While I'm an outspoken proponent of the evidence-based variety, I recognize that local political conditions can make adoption of such 3rd party guidelines difficult.  Politics is a poor excuse - states can benefit significantly not only from the credibility of 3rd party guidelines, but also from the fact that providers of such guidelines work constantly to ensure those guidelines reflect the most contemporary view of the medical evidence.  Consensus-based guidelines (where a state medical director or agency gathers a bunch of stakeholders and they all decide what's best for injured workers in a given state) tend to be static - they age... and they tend not to age well.  They also tend to be subject to influence from outside parties with vested economic interests (see Louisiana as an example).

But the debate between the two competing approaches to guidelines is actually a sideshow, a distraction that prevents regulators from focusing on what matters most: enforcement.

When reading proposed or adopted treatment guidelines for a given state, make sure you explore the extent to which you can successfully challenge treatment that falls outside of the guidelines.  For instance, let's say a medical treatment guideline states that prescribing opioid analgesics in excess of 50 mg MED daily is not recommended (as the ACOEM guidelines suggest).  And assume you have a case where the doctor is prescribing 250 mg MED daily... and that doctor has been unresponsive to requests for discussion regarding the case and has not provided the rationale for why he's prescribing outside of the evidence based guidelines.  Question: Now what?  

There are states that have good answers to this question.

In Texas, if those opioids are N drugs, the answer is required pre-authorization based on a 3rd party guideline (Official Disability Guidelines) and a utilization review process that is statutorily supported and has clearly defined dispute resolution mechanisms.

I was encouraged to read that in Tennessee, the goal is to ensure that any adoption of treatment guidelines is consistent with existing utilization review regulations (which include the ability for a payer to subject any schedule II-IV medication used for the purposes of pain management for more than 90 days to utilization review).

Those are guidelines with enforcement mechanisms.  If the adoption of guidelines doesn't come with enforcement mechanisms, they're still worth having (because good doctors will still be responsive to guidelines).  But those guidelines won't be as valuable as they could be if appropriate enforcement mechanisms are in place (because not-so-good doctors will ignore contemporary medical evidence and continue to administer sub-optimal treatment until the payer stops paying for it).

Michael
On Twitter @PRIUM1