Summary of OWC Treatment Schedule /Guidelines Training 8/19/11
Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley
The first public training conducted by the Office of Workers’ Compensation (OWC) was held at the Louisiana State Police Training Academy in Baton Rouge. The room was overflowing with adjusters, attorneys, employers, UR providers and a few physicians. The Director, Wes Hataway, gave the opening presentation in which he recognized the concerns that some people have towards the medical treatment schedule (MTS). He urged everyone to look at the bigger picture which he suggests will show that the MTS will result in better medical care delivered quicker and with lower costs. The program included presentations by Dr. Chris Rich (Medical Director), Dr. Charles Herring (co-chair of the Utilization Review revision committee of the Advisory Council), Sue Newman, Medical Services Section of the OWC and Mike Morris (member of the Advisory Council and CEO of La. Home Builders):
Dr. Chris Rich – Dr. Rich gave an introduction of himself (orthopedic surgeon in Alexandria) and an overview of the concept of “evidence based medicine”. He explained that the guidelines were developed by using the Colorado guidelines as a template but were refined through the Medical Advisory Council. The guidelines became effective July 13, 2011. Dr. Rich stated that as the Medical Director he will have other physicians who will assist him when the issues presented to him involve other areas of medical specialties.
Dr. Charles Herring – Dr. Herring expanded on the discussion of evidence based medicine. The treatment of any particular work injury should be in accordance with the highest level of medical evidence that is available. Not all treatments will have scientific studies of the purest form but all treatment must confirm to what is the best medical evidence available and that is what the guidelines are intended to provide.
Sue Newman R.N. – Sue Newman is in charge of the Medical Service Section which is the section that will receive the disputes (Form 1009) over medical treatment and prepare the received information for Dr. Rich. Her email address is snewman@ldol.state.la.us and her phone number is 800-201-2494; 225-342-7559; FAX 225-342-9836. Ms. Newman stated that the 1009 should be filed by the “aggrieved party” when treatment is not authorized and that the 1009 must be accompanied by a copy of the denial of treatment and all necessary medical records. The employer must also be sure to provide the Medical Director with any medical records relevant to the denial and if relying upon the guidelines should make specific reference to the provisions in the guidelines.
Michael Morris – Michael had the more difficult portion of the program as he was the speaker with the responsibility for explaining the procedures for treatment disputes; A difficult assignment due to the fact that the UR rules and forms that would assist in the process have not as yet been promulgated. The UR rules and Forms 1010 and 1010A are expected to go through the administrative process of promulgation by January 2012. Michael explained that the $750 rule still applies to unauthorized treatment (§1142 provides that unauthorized non-emergency treatment is limited to a maximum of $750). Thus, provided the treatment is considered compensable and is reasonable and necessary the provider does not need authorization to be paid for the services but the maximum they could recover for unauthorized treatment is $750. When a provider requests authorization for treatment AND provides the employer with the information required for the employer to make a decision [see La. Admin. Code 40:2715 (1)(a)] the employer will have five days to either approve the treatment or deny the treatment. If the employer denies the treatment the “aggrieved party” has fifteen days to file a 1009 with the Medical Director (must also file a copy of the denial and the medical records relevant to the issue). The Medical Director has thirty days to render an opinion on the treatment. The Director’s decision is to be based on a preponderance of the medical evidence. A party wishing to appeal the decision of the Medical Director must file a 1008 and must prove by clear and convincing evidence that the decision was in error [the statute does not address the question of how long one has to file the 1008]. Michael acknowledged that the current rules and forms do not provide for the situation in which a provider wishes to have treatment approved that is at variance with the guidelines. [we would suggest that this will likely become an issue when the treatment is denied and the 1009 is filed with whatever medical reasons the provider may have to go outside of the guidelines].
Questions and Answers - Members of the Advisory Council (including our own Denis Juge) responded to questions from the audience. There were a number of questions that clearly are not addressed in the guidelines statute or utilization rules.
- What is the legal effect of the failure of the employer to either approve or deny the requested treatment within the five day period? Some suggested that there should be a presumption that the services are approved; others argued that it should be a presumption that the services are denied and the 1009 should then be filed?
- At what point will the denial of treatment subject the employer to penalties and attorney fees? [no answers given to that question although we would suggest that no penalties or attorney fees are owed until the passage of a reasonable period after the dispute is resolved either by the Medical Director or the WCJ.]
- What is the legal effect of the failure of the “aggrieved party” to file the 1009 within fifteen days of the denial by the employer? Some argued that the denial should be considered correct and if the provider issues another request for the same treatment the issue should be regarded as res judicata (not subject to re-litigation). Others argued that the provider should be allowed to re-urge the treatment and start the process over with that request for treatment.
Please call us if you have any questions regarding the Guidelines.
504-831-7270 djuge@wcdefense.com
