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If you live long enough things definitely seem to come full circle. I began my
workers’ compensation career as a Hearing Officer in the field when designated
doctors only addressed MMI and impairment ratings. As time went by, they added
other issues to their repertoire and the list grew. Local treating doctors
provided MMI/IR certifications and, if you didn’t like it, you requested a
designated doctor. Then the scheduling companies moved in and doctors started
traveling from Houston to Abilene to see patients and the whole landscape
changed. Seemingly before we knew it, the tail was wagging the dog and the
companies were making 60% of the amount billed for the examinations and
recruiting doctors from all disciplines, demographics and age groups to be
designated doctors. It was truly the wild, wild west.
The Division, spurred by the Sunset Advisory Commission and the 82nd
Legislature took action and in January of 2011, I was in Austin and was charged
– along with many others – with making changes to the designated doctor
program. Many people at the Division spent untold hours working very hard
to improve the program and developed new rules, qualification and certification
criteria, testing, and training curriculum that met the statutory requirements
and systems designated to ensure qualified doctors were selected for the
thousands of examinations that were requested each year. It was a
complete overhaul of the system that was not without its fits and starts, but
overall, we saw great improvement in the training, testing, and competence and
resources available to the doctors charged with providing the opinions
necessary for the system participants to use in resolving their disputes.
All of these changes came with consequences – some anticipated and some
unforeseen. The requirements to become a designated doctor – or even a
doctor certified to evaluate MMI/IR – were now more burdensome, time consuming
and costly. The number of examinations available no longer justified the
cost for many and some made the economic decision to let their certifications
lapse. The training for years had been perfunctory and the testing was
not monitored or meaningful. Now, the Division was requiring a three-day
training at no small expense and was requiring doctors to have access to the
ODG and MD Guidelines – additional expense items. Many doctors did not
want to take the time to learn or maintain the certification.
Some unintended problems with the way the Division selected the most qualified
doctors - and the additional costs associated with new training, testing and
administrative requirements under the new rules - pushed many MDs and DOs out
of the system. In September of 2012, there were over 1,200 doctors on the
Division’s list. As of the date of this newsletter, the list is down to
238 and less than 30% are MDs and DOs.
Over the years, the Division attempted to solve the problem of the
ever-shrinking list with rule changes. In December of 2018, they
implemented a rule change designed to change the way the examinations were
assigned and modified the qualification standards, yet the list continued to
shrink. This new set of rules has the stated goal of maintaining and increasing
participation in the designated doctor program and allowing better access to
certain kinds of examinations. While it may well achieve the latter,
there is little hope of it doing the former for one simple reason. In the
April 10, 2023 rule memo, the Division clearly stated that neither rule
concerns one of the most important issues that the Division has not changed in
decades – billing and reimbursement. While they may be working to
address that issue, the status of the billing and reimbursement rules project
remains unclear. In light of the current state of the list, a change to the fee
structure could be, at this point, too little too late.
The medical doctors and osteopaths left because it was no longer cost effective
for them to do the work. The medical fee guidelines for designated doctor
examinations have not been updated to adequately reflect the changes in the
designated doctor program. The administrative burden on designated
doctors – with or without scheduling company assistance – increased considerably
when the rules changed. The complexity of the cases the board-certified
doctors are asked to address – especially regarding the extent of the injury -
and the sheer volume of medical records they are asked to review in order to
adequately evaluate those kinds of issues – are not reflected in the medical
fee guidelines. There is no reimbursement when a doctor travels out of
town to see a claimant that doesn’t show up. There is no incentive for
local doctors who feel as though they are being priced out of the market by
traveling doctors.
The administrative burden has lessened to some degree, however. The
doctors, under the new rule, don’t have to test anymore. Over time other
requirements have lessened: training is no longer three days long every two
years and much of it is available by webinar instead of live training; doctors
are no longer required to have access to MDGuidelines or ODG, they just have to
“apply” them. The obvious casualty of these changes – report quality.
While the doctors have concerns that are no doubt legitimate, practitioners
have their own concerns about the rules. Notwithstanding the obvious
concerns about the declining quality of the designated doctor reports, we are
now back to square one (circa 2010) with the designated doctor deciding what is
compensable – without regard for what the carrier has accepted or disputed –
whether the doctor is addressing extent of injury or not. The designated
doctor will no longer provide multiple certifications unless the Division
orders it. This begs the question – how does this help us with informal
resolution?
Meanwhile, the Carrier is required to pay benefits based on the designated
doctor’s certification of MMI/IR – even if they have disputed the condition the
designated doctor has rated. The question then becomes, is this a
voluntary payment according to the SIF when it comes time to seek reimbursement
if the Carrier is able to get the MMI/IR determination overturned at a CCH?
How do we advise our clients?
A lot of very hard work went in to making positive changes to the designated
doctor program after the last Sunset Commission recognized the problems the
Division was facing. In this girl’s opinion the Division was on the right
track with training and testing and educating a group of doctors to provide
meaningful tools to aid system participants and the Division in dispute
resolution.
Unfortunately, just easing up on the administrative burdens and continuing to
change the qualification criteria will not bring more doctors into the system.
Changing the criteria to make it easier for a doctor to “qualify” does
not make a doctor more qualified.
Copyright 2023, Stone Loughlin & Swanson, LLP