TOWN HALL MEETING 9/30/2016 · 2016. 10. 27. · TOWN HALL MEETING 9/30/2016 Page 4 COURT REPORTERS...
Transcript of TOWN HALL MEETING 9/30/2016 · 2016. 10. 27. · TOWN HALL MEETING 9/30/2016 Page 4 COURT REPORTERS...
TOWN HALL MEETING 9/30/2016
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TOWN HALL MEETING
MEDICAL TREATMENT GUIDELINES
Held on Friday, September 30, 2016
At the Louisiana Department of Insurance
Plaza Hearing Room
1702 N. 3rd Street
Baton Rouge, Louisiana
REPORTED BY: KELLY S. PERRIN, C.C.R.
*********************************************
COURT REPORTERS OF LOUISIANA, LLC
9614 BROOKLINE AVENUE, SUITE A
BATON ROUGE, LOUISIANA 70809
PHONE: (225) 201-9650 * FAX: (225) 201-9651
E-MAIL: [email protected]
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1 I N D E X
2 PAGE
3 CAPTION 1
4 APPEARANCES 3
5 REPORTER'S CERTIFICATE 126
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1 APPEARANCES:
2 JUDGE SHERAL KELLAR
3 JUDGE PAM LARAMORE
4 JUDGE DIANE LUNDEEN
5 DR. JASON PICARD
6 DENISE LEE, MEDIATOR
7 FREDA CHAUCER, MEDICAL SERVICES SECTION
8
9 SPEAKERS FROM AUDIENCE:
10 JASON FERRIS, INJURED WORKERS PHARMACY
11 DANIELLE JAFFEE, INJURED WORKERS PHARMACY
12 TERRI FONTENOT, NOVARE
13 MELINDA ROBERTSON, NEUROMEDICAL CENTER
14 PAUL PROCELL, WORK KARE
15 JONATHAN MITCHELL, ATTORNEY, DEGRAVELLES,
16 PALMINTIER, HOLTHAUS & FRUGE'
17 CHAS "CHUCK" DAVOLI, ATTORNEY, DAVOLI & KRUMHOLT
18 BRETT GROVES, AHCS
19 RANDY MIRE, GEM
20 CRISTEN TARKINGTON, CAPITAL CITY CHIROPRACTIC
21 WILL GREEN, LADA
22 DR. PETER ZIMMERMAN, LMC
23 BRIAN BLACKWOOD, DOJ
24 ROBIN KRUMHOLT, DAVOLI & KRUMHOLT
25 BRAD PRICE, ATTORNEY, PRICE LAW FIRM
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1 P R O C E E D I N G S
2 JUDGE KELLAR:
3 Good afternoon. I'm Sheral Kellar. I'm
4 the Director of the Office of Workers'
5 Compensation. I hope everybody signed in. If
6 you did not, please do so.
7 I want to thank you all for coming. I
8 was recently appointed Director of the Office
9 of Workers' Compensation after having served
10 as the Workers' Compensation Chief Judge for
11 17 years. And it had not been unnoticed
12 during my tenure as Chief Judge, nor as the
13 Director that the medical treatment guidelines
14 need some work. And so we have been going
15 around the state for the last couple of weeks
16 to hear from the folks who deal with the
17 medical treatment guidelines who do the 1010s,
18 the 1010As, and 1009s, the 1008 appeals to try
19 to find out what problems you're having with
20 navigating that system.
21 We want to make it work for you. We
22 understand that some things are broken, and we
23 want to fix them. But you're the guys who are
24 in the trenches. And so we want you to have
25 an opportunity to tell us what you think we
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1 might be able to do better, what you think we
2 might throw out, what you think we might just
3 tweak. I have some staff from the Office of
4 Workers' Compensation and from District 5, the
5 Workers' Compensation Court here with me today
6 who are going to listen to your grievances.
7 And we will maybe not be able to give you the
8 answers that you like, but maybe we can give
9 you some direction of how to navigate the
10 system better.
11 I have on my immediate left the Chief
12 Judge, Diane Lundeen. To her left is the
13 Medical Director, Dr. Jason Picard. Then, we
14 have Pam Laramore, the judge in District 5,
15 the Baton Rouge office. Next to Judge
16 Laramore is Denise Lee, the Mediator in the
17 District 5 Office. And next to her is Freda,
18 who is a member of the Medical Services
19 section in the Baton Rouge office.
20 Freda actually sees your documents when
21 you file a 1009 appeal to the Medical
22 Director. So as we proceed through this
23 afternoon, she's going to tell you some of the
24 things that she sees that would help her; that
25 she sees and does not see that would help her
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1 to put those files together better before they
2 are sent to the Medical Director for his
3 review.
4 On that table, we also have some
5 statistics from the medical services section
6 from March 2016 to date. We chose March 2016
7 because that's the date that Dr. Picard became
8 the full-time Medical Director. And as you
9 can see, he has a 70 percent approval rate.
10 When you file a 1009 appeal with him, he
11 approves 70 percent of the requests for appeal
12 that he receives and 30 percent of those he
13 denies.
14 I'm going to give him an opportunity to
15 address you as well. And he will tell you
16 some of the things that he sees that cause
17 those denials and some of the things that he
18 sees which assists him in approving your
19 request for medical treatment.
20 As you can see, we have a court reporter
21 here today. Throughout the state, we have
22 been taking recorded statements of these Town
23 Hall Meetings, because what we want to do is
24 at the conclusion of this one, our last one,
25 we're going to go back to the office and read
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1 all of the comments that you've made about the
2 problems you're having with the medical
3 treatment guidelines process and use those
4 comments to try to make it better for you. We
5 want the medical treatment guidelines to be
6 user-friendly. We do know that there are
7 problems.
8 So we have a court reporter who is going
9 to take your comments. And we have Michael
10 Pippins, who is an IT guy in the back of the
11 room. Michael has a handheld mic. And when
12 you speak, I'm going to ask you to first
13 identify yourself, tell us who you represent,
14 and then speak slowly and clearly so that the
15 court reporter can get your comments down.
16 If you have cell phones, I'm going to ask
17 you to put them on silent, vibrate, or stun,
18 whichever you prefer. In deference to
19 everyone in the room who may want to make a
20 comment, I'm going to ask you to keep your
21 comments to three minutes, but you may speak
22 multiple times.
23 But just don't hog the mic, just three
24 minutes and then let's move on to the next
25 person, and then we can come back to you.
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1 We're not going to necessarily answer all
2 of your questions today. And if we do answer
3 some, there may be some answers that you don't
4 like. But this is not an opportunity for us
5 to -- this is an opportunity for you to talk.
6 You guys are in the trenches. You do this
7 every day. I see some attorneys in the room.
8 I see some health care providers. You're
9 dealing with the 1010 process every day, so
10 you know things from your perspective that we
11 don't know.
12 It's amazing that throughout these Town
13 Hall Meetings, some of the problems have been
14 repeated. And I'm sure we're going to hear
15 some of the same things that we've heard in
16 other cities. But we've also heard new things
17 as well.
18 So this is your opportunity to talk to
19 us. Some of you call us individually, but now
20 you have our undivided attention. And you
21 will not get this always, so I ask you to take
22 advantage of this opportunity.
23 So with that, I will open up the floor.
24 Yes, sir? Mic?
25 DR. ZIMMERMAN:
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1 My name is Peter Zimmerman. I'm a
2 practicing physician in Baton Rouge. I've got
3 a number of questions. But the first one that
4 I'd like to address is, when carriers check
5 off the under box and list as their reason
6 that they're still investigating whether or
7 not claims are job related or not, these
8 investigations seem to go on for months and
9 months in an attempt, at least in my
10 understanding, to starve the patients into
11 settling. I'm wondering what recourse we have
12 and how best to address that situation?
13 JUDGE KELLAR:
14 This is on the 1010 form, and you have, I
15 think, three boxes. One says, for causation.
16 Are there --
17 DR. ZIMMERMAN:
18 Not in accordance with the medical
19 guidelines, not job related, not compensable,
20 and other.
21 JUDGE KELLAR:
22 Okay. If -- and you submit it to the UR;
23 right?
24 DR. ZIMMERMAN:
25 We submit a 1010 form. The check off box
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1 comes back, other; the investigating -- still
2 investigating compensability of the claim, and
3 that goes on for months in an attempt to get
4 to a 1008 without ever having to address
5 medical guideline issues.
6 JUDGE KELLAR:
7 So is your request for treatment denied
8 at that point, because other is checked off?
9 DR. ZIMMERMAN:
10 Other takes it out of the medical
11 treatment guidelines and into a 1008 issue.
12 And but it's -- it's not that they've
13 challenged compensability. They have said, we
14 are still looking into this. But it goes on
15 forever.
16 JUDGE KELLAR:
17 Well, what we've heard around the state
18 is that not that specific scenario, but we've
19 heard the scenario where the 1010 moves
20 through the process to approval by the Medical
21 Director.
22 DR. ZIMMERMAN:
23 No, ma'am.
24 JUDGE KELLAR:
25 By the Medical Director.
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1 DR. ZIMMERMAN:
2 It's not allowed to.
3 JUDGE KELLAR:
4 I have no -- I understand.
5 DR. ZIMMERMAN:
6 We don't get an --
7 JUDGE KELLAR:
8 I understand.
9 DR. ZIMMERMAN:
10 Okay.
11 JUDGE KELLAR:
12 I understand. It moves through the
13 process to approval by the Medical Director,
14 and then the payor raises the issue of
15 causation. I'm not aware that the office is
16 receiving those that say other.
17 Have you seen that, Freda?
18 MS. FREDA CHAUCER:
19 In the past.
20 JUDGE KELLAR:
21 Use the mic.
22 MS. FREDA CHAUCER:
23 Not recently since the people have been
24 investigating the Medical Director have we
25 seen under investigation. If so, the front
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1 desk, who receives the 1009, if it's being
2 sent back so that they're rejecting it on the
3 front end, have you gotten that rejection
4 recently on that?
5 DR. ZIMMERMAN:
6 Within the last two months, yes, ma'am.
7 MS. FREDA CHAUCER:
8 I think it is --
9 DR. ZIMMERMAN:
10 I can identify the individual carriers if
11 you'd like. I know exactly who they are.
12 LUBA does that and LCI does that. So it's
13 very specific and it's a very clear tactic
14 that they take.
15 JUDGE KELLAR:
16 I was not aware that when the box other
17 is checked that it's sent back to you, because
18 we have a system now where if the 1009
19 appeal -- because I'm assuming that's what you
20 mean, the appeal?
21 DR. ZIMMERMAN:
22 No, ma'am. I mean the 1010.
23 JUDGE KELLAR:
24 Okay. See, yeah, it's --
25 DR. ZIMMERMAN:
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1 We're not allowed to get to a 1009 at
2 that point because it's not --
3 JUDGE KELLAR:
4 Okay. Then --
5 DR. ZIMMERMAN:
6 It's not within the medical guidelines.
7 It's taken out of the medical guidelines by
8 checking other. And the prior director viewed
9 that as -- viewed that as non-compensable or
10 putting compensability at issue.
11 JUDGE KELLAR:
12 I don't know what that means, I really
13 don't. But at that point, I think your only
14 recourse would probably be to file a 1008 with
15 The Court.
16 DR. ZIMMERMAN:
17 But that defeats the purpose of the --
18 JUDGE KELLAR:
19 It does.
20 DR. ZIMMERMAN:
21 -- expedited nature of the process.
22 JUDGE KELLAR:
23 I think it does defeat the process, but
24 we don't even see that is what you're telling
25 me?
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1 DR. ZIMMERMAN:
2 Yes, ma'am.
3 JUDGE KELLAR:
4 So --
5 DR. ZIMMERMAN:
6 So what I'm wondering is, is there any
7 way to time limit investigations of
8 compensability?
9 JUDGE KELLAR:
10 I don't know that, an answer to that
11 question, but it is an issue that we can take
12 under advisement. Okay?
13 DR. ZIMMERMAN:
14 (Nods head.)
15 JUDGE KELLAR:
16 Thank you for bringing that to my
17 attention. Now, that is the first time we've
18 heard that one. Thank you.
19 DR. ZIMMERMAN:
20 (Nods head.)
21 JUDGE KELLAR:
22 Dr. Zimmerman, can you tell us what your
23 field of specialty is?
24 DR. ZIMMERMAN:
25 Pain management. I work at Louisiana
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1 Medical Clinic in Baton Rouge.
2 JUDGE KELLAR:
3 Thank you. Anybody else?
4 MR. PROCELL:
5 My name is Paul Procell from Shreveport,
6 Louisiana, occupational therapist. Is there
7 any other therapists in the room? Raise your
8 hand. Okay. I represent all the therapists
9 in Louisiana.
10 First question I have is, as a therapist,
11 I'm getting some feedback from certain
12 attorneys in my area that I cannot fill out a
13 1010 on behalf of a patient unless the patient
14 gives me their consent. So a doctor refers a
15 patient to me, the insurance carrier, nurse
16 case manager, insurance adjustor, and they
17 want me to fill out a 1010 and submit it to
18 them. And is it legal for someone to fill out
19 a 1010 without the patient's consent? Have
20 y'all heard this one before?
21 The background of this would be that
22 certain attorneys are trying to manipulate
23 where the people go for functional capacity
24 evaluation. And if you force it to receive
25 approval or consent by the patient, then you
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1 can somehow direct or manipulate the course of
2 where these functional capacities are being
3 performed. So my question is, do I need a
4 consent from the patient to fill out a 1010?
5 JUDGE LUNDEEN:
6 So you have two questions here. You have
7 two issues. But first, let me address the
8 second issue, and this may or may not be the
9 answer. But medical treatment guidelines are
10 designed to be mandatory for any workers' comp
11 patients. So if you are treating a workers'
12 comp patient, you have to use this form.
13 So it's not about the consent of the
14 patient. This is the legal mandate created by
15 our legislature that is a tool that you have
16 to use to get medical care for them, if they
17 are there because they've had an occupational
18 injury and are filing under workers'
19 compensation.
20 You may have a different answer if they
21 come to you. It's undetermined if they have
22 had an occupational injury or claiming a
23 workers' compensation compensable claim, and
24 they present to you under a private insurance
25 company. That's a very different scenario.
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1 MR. PROCELL:
2 That would be the case with me. I would
3 not get the referral unless it came from the
4 treating physician and they provided me the
5 contact information, work comp information and
6 so forth. So every patient I'm discussing is
7 a workman's comp claim with a claim number
8 that's been processed.
9 JUDGE LUNDEEN:
10 You're legally obligated to use this
11 form.
12 MR. PROCELL:
13 I understand. I got that part.
14 JUDGE LUNDEEN:
15 There's nothing in the statute that
16 indicates, at least that I am aware of, that
17 indicates that you have to have the patient's
18 consent to do what the legislature has told
19 you have to do.
20 MR. PROCELL:
21 Thank you. Second thing is, since I do
22 functional capacity evaluations, I've been
23 having issues with a certain insurance carrier
24 in the state, and I've mentioned LUBA, that a
25 functional capacity evaluation is usually 24
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1 units. Before the state went to units, they
2 were doing it by the hours. I've been in
3 business since 1989, so six hours. Once the
4 state went to units, four units -- a unit is
5 15 minutes, so basically 24 units.
6 Now, LUBA is saying they're only going to
7 approve 14 units. You do the 1009, you appeal
8 it. It goes to you guys. And the next thing
9 I know is that it gets denied, and that a
10 14-unit functional capacity evaluation is
11 acceptable.
12 What I would like to discuss with the
13 panel is that there's no such thing as a
14 partial functional capacity evaluation. When
15 a patient goes to an orthopedic and does the
16 evaluation and they have an assigned body
17 part, they're doing a full evaluation of that
18 injured body part. When they come to me for a
19 functional capacity evaluation, I have to do a
20 full evaluation.
21 So I'm wondering or maybe to educate,
22 because I'm not sure if there is a therapist
23 on your Board to determine partial and full
24 functional capacity evaluations. Is there a
25 therapist that that information has been
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1 shared with? Is there a therapist?
2 JUDGE KELLAR:
3 The Medical Director makes the decisions
4 on all 1009 appeals, regardless of what field
5 of specialty there is.
6 MR. PROCELL:
7 So there's no such thing as a functional
8 function capacity evaluation. You have a
9 functional capacity evaluation and a work
10 screening tolerance. A functional capacity
11 evaluation is, once a patient has achieved
12 maximum medical improvement, they've achieved
13 maximum rehab potential, then you do a
14 functional capacity evaluation.
15 A work screening tolerance is done in the
16 process of them achieving MMI, achieving
17 maximum rehab potential that you're trying to
18 determine that they can return to work at some
19 capacity, but that is a partial -- a work
20 screening tolerance. That is not a functional
21 capacity evaluation. So I would suggest
22 cleaning up the definition of a partial FCE.
23 JUDGE KELLAR:
24 Yes, sir?
25 DR. PICARD:
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1 The guidelines don't specify partial
2 versus full FCE. So if you're addressing an
3 FCE and it is appropriate and it was denied
4 due to what you're describing, it would be
5 approved by me or back to me. We can't do
6 anything about what the insurance companies do
7 on the front end about things like that. I
8 can only look towards what to do when it gets
9 to me.
10 And I look at what the guidelines say.
11 And there is no delineation between those two
12 things. You either do an FCE or you don't.
13 And if it's appropriate, then you would
14 approve it and we would consider limiting the
15 amount of hours and things of that nature.
16 MR. PROCELL:
17 The previous medical director has
18 approved partial functional capacity
19 evaluations, so ...
20 DR. PICARD:
21 That's kind of --
22 MR. PROCELL:
23 I just got stuck with one this past week
24 so I would submit that.
25 JUDGE KELLAR:
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1 Have you received the partial functional
2 capacity evaluation since March?
3 MR. PROCELL:
4 Last week, yes, ma'am.
5 JUDGE KELLAR:
6 From Dr. Picard?
7 MR. PROCELL:
8 I didn't appeal it. I just went ahead
9 and did the evaluation because it was on a
10 timing basis, because previous ones I had -- I
11 was unaware of the new medical director -- in
12 the past when you submit them, it's denied.
13 So in the future, I'm going to try it again.
14 And but I would just ask you to consider,
15 there's no such thing as a partial functional
16 capacity evaluation.
17 And in the guidelines with LUBA, they're
18 asking that you only reimburse 14 units versus
19 24 units. And there's no way you could do a
20 full functional capacity evaluation in that
21 short a period of time. Because when I go
22 through depositions, my findings are going to
23 be shot out of the water.
24 DR. PICARD:
25 If it's not specified in the guidelines,
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1 then I wouldn't deny it on that basis. If
2 it's not specified that there is such a thing
3 as a partial functional capacity evaluation to
4 specify functional capacity evaluation and you
5 make a decision on what that entails, then I
6 would approve it.
7 MR. PROCELL:
8 Well, the referring physician would write
9 on the script, functional capacity evaluation.
10 DR. PICARD:
11 Right.
12 MR. PROCELL:
13 So they don't need to put full or
14 anything. A functional capacity evaluation
15 has its own definition.
16 DR. PICARD:
17 I agree.
18 MR. PROCELL:
19 Thank you.
20 JUDGE KELLAR:
21 Let me go back to Dr. Zimmerman for a
22 minute. I've been looking at the 1010 form
23 and in Section III, Responsive Care and
24 Self-Insured Employed for Authorization. And
25 what it says is the requested treatment or
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1 testing is denied because, other.
2 DR. ZIMMERMAN:
3 Yes.
4 JUDGE KELLAR:
5 That's a denial, which means that at that
6 point, you're required to appeal to the
7 Medical Director --
8 DR. ZIMMERMAN:
9 No, ma'am. The only way you can get to
10 the Medical Director is if it's denied based
11 on not consistent with the medical guidelines,
12 the first check off box. Boxes two, three,
13 and four do not allow you to get to the
14 Medical Director. They take you to a 1008.
15 Boxes two, three, and four are
16 non-compensable, not job related, or other.
17 So they're not inconsistent with the medical
18 guidelines and they don't get to a 1009.
19 JUDGE KELLAR:
20 The four boxes are not in accordance with
21 the medical treatment schedule. The second
22 one is the request for a portion thereof is
23 not related to the on-the-job injury. The
24 third is the claim is being denied as
25 non-compensable. And the fourth one is other.
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1 And it says, attach brief explanation.
2 DR. ZIMMERMAN:
3 And then, if you check off boxes two,
4 three, or four, you do not get to a 1009. The
5 only way you get to a 1009 is if you check off
6 box number one.
7 JUDGE KELLAR:
8 Okay.
9 MS. FREDA CHAUCER:
10 I'm -- I guess I'm not sure what he was
11 referring to what -- it says, a brief
12 explanation, because other, other has been
13 checked on the 1010, and it does go to the
14 Medical Director.
15 DR. ZIMMERMAN:
16 Not if they put compensability at issue.
17 JUDGE KELLAR:
18 If compensability is at issue --
19 MS. FREDA CHAUCER:
20 Well, that's --
21 JUDGE KELLAR:
22 -- no, it does not give them medical.
23 DR. ZIMMERMAN:
24 So but the point is to not allow them to
25 fudge and say, we don't know whether
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1 compensability is an issue or not. My
2 preference would be that if compensability is
3 the issue, that they check off
4 non-compensable. They don't.
5 What they do is, they check off other and
6 they say, we're still investigating whether
7 compensability is at issue or not. And then,
8 they go on and take months to make that
9 determination.
10 JUDGE LUNDEEN:
11 So what you're saying, Doctor, is that
12 they've actually created a new category of
13 non-compensable by checking off other and
14 saying we're investigating its compensability,
15 when they should have checked off
16 non-compensable or undetermined as
17 compensable?
18 DR. ZIMMERMAN:
19 They haven't been -- their feet haven't
20 been forced to the fire --
21 JUDGE LUNDEEN:
22 Right.
23 DR. ZIMMERMAN:
24 -- by taking and saying we have placed
25 compensability at issue. They have simply
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1 said, we are investigating and it takes -- and
2 they go on and on and on until they finally
3 get to a 1008. They depose and they try and
4 investigate the patients over time. And they
5 use that to not have to pay for medicals in
6 the meanwhile. And they use that to not have
7 to pay for benefits in the meanwhile when they
8 haven't determined whether compensability is
9 at issue or not.
10 JUDGE KELLAR:
11 Has anybody in the audience seen a 1010?
12 Yes? Yes, ma'am? Can you stand up and
13 identify yourself, please, ma'am?
14 MS. ROBERTSON:
15 I'm Melinda Robertson.
16 JUDGE KELLAR:
17 Hold on just a minute.
18 MS. ROBERTSON:
19 Melinda Robertson, I'm the Workers' Comp
20 Coordinator for the NeuroMedical Center. And
21 we do a lot and I see that a lot, and that's
22 just to stop the process where we can't do
23 anything and the patient is sitting waiting
24 for treatment, but they're not making any
25 decisions. So we can't send a 1009 because
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1 they're going to reject it for being -- for
2 compensability.
3 JUDGE KELLAR:
4 "Compensability"?
5 MS. ROBERTSON:
6 Yeah. We're stuck.
7 JUDGE KELLAR:
8 So you get the 1010 back from the payor
9 and it says, other?
10 MS. ROBERTSON:
11 And it says, claim under investigation.
12 And we're waiting months to -- and we can send
13 it again and they'll keep over and over, and
14 the patient is not getting the care they need
15 because they're investigating.
16 JUDGE KELLAR:
17 And when you've sent those in to the
18 Office of Workers' Compensation Medical
19 Director, they've been rejected?
20 MS. ROBERTSON:
21 Well, when we first started doing it, we
22 were doing it that way when the guidelines
23 came around. But once we realized it wasn't
24 going to get through, we don't waste our time.
25 JUDGE KELLAR:
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1 Okay. Thank you. Thank you, ma'am.
2 MS. LEE:
3 I've seen instances where insurers will
4 pay for claims, even though they are being
5 investigated; maybe not everybody, but some of
6 them will. And, of course, it's unfortunate
7 if there's something they learn that would
8 make them cut off the benefits, but I would
9 give it a shot. There are a few who will pay
10 for claims while they are being investigated.
11 JUDGE KELLAR:
12 Yes, sir?
13 DR. ZIMMERMAN:
14 My second issue that I'd like to chat
15 about is when carriers create rules not in the
16 guidelines; specifically when they impose
17 requirements not in the guidelines. For
18 instance, if I get denied as not in accordance
19 with the medical guidelines and I call in and
20 I ask for a voluntary reconsideration, Carrier
21 A may say, we will only allow you voluntary
22 reconsideration if you provide additional
23 medical documentation. Carrier B may say, we
24 will not consider any additional medical
25 documentation when we have -- when you have
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1 voluntary reconsideration.
2 So there are inconsistent rules amongst
3 carriers for the right to have voluntary
4 reconsideration when neither of those
5 requirements are part of 2715I. So they
6 impose rules not in the guidelines and they
7 are inconsistent so that LWCC will say X, and
8 Novare will say Y, and it depends on the
9 carrier as to whether or not, I guess, how we
10 respond.
11 JUDGE KELLAR:
12 Thank you. There are also inconsistent
13 rules imposed by carriers on things that are
14 not required by the medical treatment
15 guidelines, so 2715 in other areas as well,
16 but we were not aware of that one.
17 DR. ZIMMERMAN:
18 Additionally, and I'm curious
19 particularly with LWCC as to their ability to
20 impose a formulary when no formulary within
21 the guidelines exist; so that if I write for a
22 branded medication, I receive a denial from
23 Dr. Beau -- or Dr. Clark, I should say,
24 advising me that they will only pay for
25 generics and that they will -- I will either
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1 need to submit a 1010.
2 So I write a prescription, that gets
3 turned down. I then submit a 1010, that gets
4 turned down. I have voluntary
5 reconsideration, that gets turned down. And
6 then I finally go to a 1009 where the Medical
7 Director approves it. But by then, the
8 patient has waited in excess of 30 days for
9 the medication, when in fact, there is no
10 formulary that they can hang their hat on.
11 JUDGE KELLAR:
12 Thank you. Yes, ma'am?
13 MS. ROBERTSON:
14 I have a question about the 1009 after
15 it's approved. It states that the 1009 is not
16 a guarantee of payment. So what we do is we
17 go back to the carrier, send them the 1009
18 approval, along with a new 1010 so that they
19 can send us the approval. However, we're
20 waiting upwards of months to get those back.
21 Is there a certain amount of time they
22 have to respond to us after getting the 1009
23 approval?
24 JUDGE KELLAR:
25 There is currently no period of time
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1 written into the rules regarding how long it
2 is they have to approve the procedure once
3 it's been approved by the Medical Director.
4 We've heard this question in other cities.
5 And our response has been to file a 1008
6 appeal.
7 Yes? Go ahead.
8 JUDGE LUNDEEN:
9 Under the Workers' Compensation Act, an
10 employer or its insurer has 60 days' written
11 demand to pay for medical bills. We don't --
12 we don't have any cases yet that have tried
13 that, but we are getting cases where the
14 Medical Director -- and we're hearing some of
15 the state -- the Medical Director approves
16 something and then people sit around waiting
17 for the insurer to actually provide that
18 medical care.
19 Arguably, you could file a motion to -- a
20 1008 with a motion to enforce in that 60-day
21 rule, potentially applying for either
22 penalties and attorneys' fees depending upon
23 the circumstances of the case to enforce that
24 decision. But I don't think that they can
25 circumvent that 60-day certainty and that
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1 doesn't help the patients in need, because
2 that's 60 more days after the medical
3 treatment guideline process. But it is sort
4 of a finite window. It's not clear yet though
5 how to do this.
6 JUDGE KELLAR:
7 Well, you see, the first time we've heard
8 that complaint is during these Town Hall
9 Meetings. And we had no clue that the Medical
10 Director would approve a treatment and then
11 the payor would not pay it. I personally
12 don't feel that you need to send another 1010,
13 together with the 1009 approval to get them to
14 authorize the treatment. But as I said, one
15 of the reasons we're here is to find out what
16 your issues are and try to fix them.
17 These Town Hall Meetings have revealed to
18 us that our medical treatment guidelines lack
19 enforcement power. And so that's one of the
20 things that needs to be written into the rules
21 to enforce once the Medical Director gives an
22 approval, that needs to be enforced so that
23 you don't have to file a 1008.
24 Because as Dr. Zimmerman pointed out and
25 as we all here know, the medical treatment
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1 guidelines are intended to be quicker, faster
2 to get the treatment to the injured worker.
3 So if you're having to file a 1008 to enforce
4 what we intended to happen in the first place,
5 then we're failing. You know, we're failing.
6 So thank you. We've heard that one numerous
7 times.
8 Yes? Yes, ma'am?
9 MS. TARKINGTON:
10 Hi. I'm --
11 JUDGE KELLAR:
12 Just a minute.
13 MS. TARKINGTON:
14 Hi. I'm Cris from Capital City
15 Chiropractic. I have a question. When you
16 fill out the 1010 form, we send it in. It
17 gets approved. The Code that I'm using is a
18 97124, which is a massage therapy code.
19 For every 15 minutes is one unit. And I
20 put four units on the side of that code. It
21 gets approved, then the payor doesn't pay it.
22 It's just denied. It doesn't have a medical
23 explanation by it or anything.
24 So, therefore, by the time I get that
25 denial back, that could be two months, and
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1 they've had ten massages by then. And so
2 they're all getting denied. What do I do in
3 that circumstance?
4 JUDGE KELLAR:
5 So the Medical Director is approving the
6 requests?
7 MS. TARKINGTON:
8 Yes, ma'am.
9 JUDGE KELLAR:
10 And then the payor denies --
11 MS. TARKINGTON:
12 Just that code, yes, ma'am.
13 JUDGE KELLAR:
14 Well, again, you're in the same position
15 where you have to enforce the Medical
16 Director's approval through the 1008 process.
17 Because, currently, there's nothing in the
18 rules which allow you to do anything further.
19 There's nothing in the rules that say, once
20 the approval is received from the Medical
21 Director, the payor has 60 days to approve or
22 they'll be assessed a penalty and attorneys'
23 fees. There's nothing in the rule that says
24 that. So that is an issue that we will be
25 addressing so that when the Medical Director
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1 gives an approval, it can be enforced.
2 MS. TARKINGTON:
3 Okay. Also, I have a question when the
4 patient has an attorney and it's a workman's
5 comp case, everything goes through the
6 workman's comp process. If a workman's comp
7 carrier keeps denying that claim and I cannot
8 get it paid, is the attorney or the patient
9 responsible for that care that didn't get
10 paid?
11 JUDGE LUNDEEN:
12 No.
13 MS. TARKINGTON:
14 No? Okay. That's what I thought. I
15 just wanted to --
16 JUDGE KELLAR:
17 I -- somebody over here said no, but they
18 need to say it verbally.
19 JUDGE LUNDEEN:
20 No. In fact, Tulane Medical Center in
21 New Orleans got dinged for doing that because
22 you can't go beyond the fee schedule of the
23 Workers' Comp Act. And while a claim, even if
24 it's compensability is being denied, you can't
25 seek payment from both sources and charge the
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1 whole in excess of the fee schedule to the
2 injured worker or if he's been guaranteed by
3 somebody else like an attorney to the
4 attorney.
5 MS. TARKINGTON:
6 Yeah, I just wanted to --
7 JUDGE LUNDEEN:
8 Be careful of that. You can actually get
9 penalized for that as a medical provider.
10 MS. TARKINGTON:
11 Okay. I thought so, but I just wanted to
12 make sure that I was understanding it
13 correctly. Thank you.
14 JUDGE KELLAR:
15 Thank you, ma'am.
16 DR. ZIMMERMAN:
17 I have another.
18 JUDGE KELLAR:
19 Please, Dr. Zimmerman, go ahead.
20 DR. ZIMMERMAN:
21 So, recently, I had a case where I called
22 seeking voluntary reconsideration after being
23 denied on a 1010. I called and spoke to the
24 nurse case manager and the adjustor who
25 claimed that, because the patient was
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1 represented by counsel that they were not able
2 to speak with me to allow for or deny a
3 voluntary reconsideration. I'm curious
4 whether that's a reasonable response.
5 JUDGE KELLAR:
6 Generally, if someone is represented by
7 an attorney, you speak through their attorney.
8 That's generally.
9 DR. ZIMMERMAN:
10 The nurse case manager -- so the
11 patient's attorney needs to request voluntary
12 reconsideration in order to allow me to then
13 speak to the adjustor or the nurse case
14 manager?
15 JUDGE KELLAR:
16 I can't make the rule generally about
17 that at this time. But, generally, if someone
18 has an attorney, you need to speak to their
19 attorney. We're finding that there's a lot of
20 gamesmanship going on with the implementation
21 of the medical treatment guidelines. And so
22 what we need to do is we need to tighten up
23 our rules for that purpose so that these sorts
24 of things don't happen. But thank you for
25 bringing it to our attention.
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1 DR. ZIMMERMAN:
2 While I've got the mic, I want to try one
3 other way, which is more aspirational than
4 anything. I find myself asking for the same
5 things for different reasons for different
6 patients repeatedly and redundantly to the
7 same carrier. If I ask for Amrix because the
8 patient has found that Flexeril is too
9 sedating, I will get a denied by the
10 prescription level, denied at the 1010 level,
11 and then authorized by the Medical Director
12 routinely.
13 I'm wondering whether there is any way to
14 allow for precedential value of Medical
15 Director's decisions so that if the same
16 carrier has been asked the same question for
17 the same reasons in the past, we need not go
18 through the process redundantly.
19 JUDGE KELLAR:
20 That's a suggestion?
21 DR. ZIMMERMAN:
22 I'm wondering whether that is in fact
23 something that I already have the right to
24 request or whether that is something that
25 needs to be added because I don't know what
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1 the panel thinks about that, but I'd be
2 curious to hear.
3 JUDGE KELLAR:
4 Okay. First of all, this panel doesn't
5 make decisions on your request. Only one
6 person does.
7 DR. ZIMMERMAN:
8 Okay.
9 JUDGE KELLAR:
10 And that's Dr. Picard.
11 DR. ZIMMERMAN:
12 Precedential value --
13 JUDGE KELLAR:
14 I understand what you're saying. It's
15 like when the judges render decisions, if you
16 know what treatment a judge has given to a
17 particular issue, you don't need to appeal it
18 because you know what's going to happen in
19 that case. I think that the Medical
20 Director's decisions ought to be instructed.
21 But insofar as asking for the same thing,
22 receiving the same answer is concerned, I
23 would say each patient is different. So it
24 might be a little bit difficult. That's my
25 response. Dr. Picard might think something
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1
differently.
2
3
DR. PICARD:
Yeah, I understand your question.
The
4 only problem with it would be the amount of
5 variability from person to person, and the
6 insurance company is going to want to look at
7 that case and its mentality to determine what,
8 you know, they want to do. And if they're
9 basically rejecting that particular thing
10 every time, regardless of what the
11 circumstances are, I think the only thing you
12 can do is file a 1009. I know it's more
13 difficult, but there's nothing in the
14 guidelines that would allow what you're asking
15 for.
16 DR. ZIMMERMAN:
17 Understood. I guess my issue is if it's
18 something that you've already said yes to and
19 it's the same fact pattern routinely as it is,
20 it seems to me that they're denying it solely
21 to delay. And so at that point, it becomes
22 again a vital issue of the spirit of the
23 notion that our rules exist to expedite
24 things.
25 JUDGE KELLAR:
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1 But it's a different patient; right?
2 DR. ZIMMERMAN:
3 Different patient with the exact same
4 fact pattern.
5 MR. PROCELL:
6 Same carrier?
7 DR. ZIMMERMAN:
8 Yes.
9 JUDGE KELLAR:
10 Thank you. Anybody else? Yes, sir?
11 MR. PROCELL:
12 Is there any way as far as the medical
13 professionals and rehab professionals to gain
14 more information on the 1010 as far as what
15 insurance carriers are receiving the most
16 1009s or does that data exist? Because if
17 there are certain carriers that continually
18 deny, I think we should be made aware? Your
19 thoughts?
20 JUDGE KELLAR:
21 The only information that we are
22 currently keeping is information that actually
23 comes into our office. We are not privy to
24 the information that is received at the
25 various payors.
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1 MR. PROCELL:
2 But the work comp carrier is on the 1009;
3 right?
4 JUDGE KELLAR:
5 The payor?
6 MR. PROCELL:
7 Yes.
8 JUDGE KELLAR:
9 Yes.
10 MR. PROCELL:
11 So that data is there?
12 JUDGE KELLAR:
13 So you're asking --
14 MR. PROCELL:
15 I'm asking to --
16 JUDGE KELLAR:
17 Let you know the names of the carriers
18 that are denying --
19 MR. PROCELL:
20 At a higher rate than the average of the
21 state that there's normative empirical data
22 that shows that, here's the average; we've
23 received Medical Director approval, but which
24 insurance carriers out there are going above
25 the average that you're having to file 1009s?
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1 DR. ZIMMERMAN:
2 You're not aware of the 1010s.
3 JUDGE KELLAR:
4 Yeah, I don't -- I mean I would not be
5 willing to release that information. It may
6 be useful for internally in the office, but I
7 don't -- I don't see where we should be, you
8 know, giving that information to the public.
9 DR. ZIMMERMAN:
10 Right.
11 JUDGE LUNDEEN:
12 Also, the data you would collect would be
13 inaccurate as a whole for reasons that the
14 Director stated earlier. Because the only
15 information that we would have would be the
16 cases that came to us. There might be tons of
17 other cases or no other cases internally that
18 never made it to the 1009 process. So it
19 would be a skewed and incorrect statistic.
20 JUDGE KELLAR:
21 Yes, ma'am?
22 MS. KRUMHOLT:
23 Robin Krumholt with Davoli and Krumholt.
24 I represent injured workers. We have clients
25 that are permanently, totally disabled, so
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1 they can't get treatment under the medical
2 treatment guidelines because it's not giving
3 them 50 percent functional improvement for
4 returning them to work.
5 So my question is, how do we ask for a
6 variance for these long-term patients and what
7 type of medical evidence do we need to try to
8 get a variance from the medical treatment
9 guidelines? Thank you.
10 DR. PICARD:
11 I don't know how to answer that one,
12 Judge.
13 JUDGE KELLAR:
14 You don't know how to answer that one?
15 DR. PICARD:
16 I mean you're asking -- typically, if
17 you're asking for a variance from the
18 guidelines, what it's intended to do is allow
19 you to have a particular procedure or
20 something that might be new that didn't make
21 it to the guidelines yet or some variation on
22 a surgical therapy, something of that nature.
23 You're talking about a whole spectrum of
24 care that you're looking at providing now
25 that's different from what is in the
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1 guidelines. So that's why I'm not sure how to
2 answer that question. She's talking about
3 somebody that completely falls outside of the
4 guidelines.
5 And now, do we have a variance to allow
6 them to now comply with the guidelines? I'm
7 not sure how to answer that.
8 JUDGE KELLAR:
9 Well, the medical treatment guidelines
10 provide for a listing of criteria to be used
11 to submit to the Medical Director if you want
12 a variance. We are aware that the
13 requirements for the kinds of evidence or
14 literature you submit is stated differently in
15 the guidelines and in the rule, 2715. And so
16 it has caused a conflict and it needs to be
17 cleaned up.
18 But if we look at 1203.1, it directs you
19 back to the section to tell you specifically
20 what it is you need to submit to the Medical
21 Director to support the request for variance.
22 MS. KRUMHOLT:
23 Yes, ma'am. And the problem we're
24 encountering is these are patients, say for
25 instance, that have had multiple back
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1 surgeries that have failed back syndrome. And
2 before the medical treatment guidelines are
3 strictly palliative care, they could get, say,
4 epidural steroid injections or trigger point
5 injections, but they're not being allowed to
6 have this necessary treatment under the
7 medical treatment guidelines and they're not
8 able to return to work or ...
9 DR. PICARD:
10 Okay. Now, I understand what you're
11 asking a little bit better, I think. In that
12 case, if you have a specific case that you
13 just discussed, if the patient has what's
14 required for an ESI, they have radiculopathy
15 and pain, you know, if they've failed
16 nonconservative treatment, that I would
17 typically approve that particular procedure.
18 Return to work is not in the guidelines
19 as required for that procedure. So I think
20 it's still worth going through the 1009
21 process and to let us take a look at it,
22 because it might be that some cases do meet
23 the guidelines.
24 MS. KRUMHOLT:
25 Thank you.
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1 JUDGE KELLAR:
2 Yes, sir?
3 UNKNOWN:
4 Judge Kellar, Members, thank y'all.
5 Today, I'm here with several pharmacies who
6 would like to express their concerns and
7 their -- basically the 1010 forms. And I have
8 IWP, I have the AHCS and GEM drugs and they
9 would like to maybe suggest some ideas of how
10 they can -- how we can address these issues
11 that they're facing on the pharmacy side.
12 MR. MIRE:
13 Thank you, guys. So my name is Randy
14 Mire and I own four pharmacies in Louisiana.
15 I'm a pharmacist as well. And one thing that
16 we find very difficult is with the role of the
17 $750 for approval for medication. Many of
18 times, you know, with the costs of generic
19 drugs being more cost effective and so forth,
20 they will lump all of the patients' meds on an
21 office visit together.
22 So a patient gets four generic
23 medications, they exceed 750. Then they say,
24 you should have filled out a 1010 and got
25 authorization. We find that very difficult.
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1 You know, it slows up the process for the care
2 of the patient.
3 They'll go out without meds for many days
4 while you wait for an adjustor to get back
5 with the pharmacy. And patients, when we have
6 them sometimes in the pharmacy, you know, are
7 begging for their meds. And it's just generic
8 meds that are price efficient.
9 I understand that there needs to be a
10 rule in place for some sort of threshold, but
11 it needs to be defined better. And a single
12 medication, if it's a branded med that's over
13 a certain dollar amount, that you need
14 authorization for that specific medication,
15 but not lump them all together like that. And
16 we find it very, very difficult to deal with
17 when we're trying to get patients the care
18 they need.
19 JUDGE KELLAR:
20 Thank you.
21 MR. GROVES:
22 And just to weigh in on that, we've
23 basically come to a decision --
24 JUDGE KELLAR:
25 Your name?
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1 MR. GROVES:
2 I'm sorry. It's Brett. Sorry.
3 JUDGE KELLAR:
4 Okay.
5 MR. GROVES:
6 Yes, we've come to a decision that we
7 could either wait to give the patients their
8 medications and try to obtain a 1010 form or
9 we can go ahead and risk, go ahead and give
10 the patient their medications and hopefully
11 that we collect on the back end. But so many
12 times, we're denied for the reason of
13 authorization wasn't given because you exceed
14 the 750, so that's their denial. So at that
15 point in business, we're out of pocket on that
16 just because we want to make sure that the
17 patient is serviced in a timely fashion.
18 JUDGE KELLAR:
19 Would either of the judges like to
20 address the 1010 and the prescription issue?
21 Judge Laramore?
22 JUDGE LARAMORE:
23 I don't know that you want me to get into
24 this.
25 UNKNOWN:
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1 We also have IWP --
2 JUDGE KELLAR:
3 Well, you can tell them what the First
4 Circuit's treatment is on that issue.
5 JUDGE LARAMORE:
6 There's a case out there, it's
7 Ms. Krumholt's case, it's the Mire case, I
8 have made the decision that the medical
9 treatment guidelines do not apply to
10 pharmaceutical drugs; that there's nothing in
11 the medical treatment guidelines that says,
12 you get this drug at this amount for this
13 length of time for this condition. That's not
14 in there. There is no formulary for drugs in
15 the medical treatment guidelines.
16 There's been a lot of talk for many, many
17 years about doing one, but it's not there.
18 And I said that the medical treatment
19 guidelines do not apply to pharmaceutical
20 drugs. And I've been upheld to the First
21 Circuit. It's on its way to the Supreme Court
22 now.
23 It's, like I said, Ms. Krumholt could
24 give you more specifics about what the actual
25 case is, but it's a gentleman who is
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1 permanently, totaled disabled and this is all
2 he's got is pain management drugs and it's
3 expensive. But that's -- that's where the
4 issue stands now.
5 Denise, if you want to cite the -- did we
6 bring it here? She can give you the cite --
7 MS. LEE:
8 For the First Circuit.
9 JUDGE LARAMORE:
10 -- for the First Circuit. It's up on
11 writs. And I have not received whether or not
12 the Supreme Court's accepted the writ yet or
13 denied it. But Phil did take it up; didn't
14 he? Denise -- I mean, Robin, or do you know?
15 Have they accepted it?
16 MS. KRUMHOLT:
17 Yes, Your Honor. I filed an objection to
18 the writ. He's filed a reply. But it all
19 happened at the time of --
20 JUDGE LARAMORE:
21 The flood?
22 MS. KRUMHOLT:
23 -- the flood, so we have not heard if
24 they've accepted the writ or not.
25 JUDGE LARAMORE:
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1 So we don't know if the Supreme's going
2 to address it or not, but the First Circuit
3 has agreed with me.
4 DR. ZIMMERMAN:
5 Can I just ask for clarification? If the
6 guidelines don't apply, there's nothing that
7 the carrier is -- or what does that imply?
8 JUDGE KELLAR:
9 No, that's not what that means at all.
10 JUDGE LARAMORE:
11 You mean as far as I'm concerned? And
12 it's just me. It's just me. Every judge has
13 got their own way of looking at things. And,
14 believe me, Director Kellar will tell you that
15 my way of looking at things ain't always the
16 way everybody else does it.
17 DR. ZIMMERMAN:
18 Sure.
19 JUDGE LARAMORE:
20 But --
21 DR. ZIMMERMAN:
22 Well, what's your opinion?
23 JUDGE LARAMORE:
24 My opinion on this issue is there is no
25 medical treatment guidelines for how to handle
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1 the drugs in general. And until they do that
2 and give specifics, then it's reasonable and
3 necessary medical treatment. If it's
4 reasonable and necessary medical treatment,
5 then I'm going to agree with it.
6 So what you do is you have -- present me
7 that it's -- carrier present to me that it's
8 not reasonable and necessary medical treatment
9 until I get the decision from the Supreme
10 Court that says, gee, Judge, stop that, you
11 know, or okay. I don't know.
12 JUDGE KELLAR:
13 And it is the First, the Fifth, and
14 the -- is it the Third -- the Second?
15 JUDGE LARAMORE:
16 I lose count, Dear.
17 JUDGE KELLAR:
18 All right. I know it's the First and the
19 Fifth and there's one other circuit?
20 MS. FONTENOT:
21 First, Second, and Fifth.
22 JUDGE KELLAR:
23 First, Second, and Fifth?
24 MS. FONTENOT:
25 As per the meeting in Lafayette.
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1 JUDGE KELLAR:
2 Okay. That has decided that prescription
3 medication is not subject to the approval and
4 the appeal process authorized by 23 -- 1203.1.
5 JUDGE LARAMORE:
6 Now Brian has got his hand up, and I'll
7 tell you that Brian has got that same issue
8 with me too, and they -- on the exception of
9 prematurity. And we -- I've ruled the same
10 way on it. And I know, Brian, you're taking
11 that up too; aren't you?
12 MR. BLACKWOOD:
13 Yes. Brian Blackwood, State of
14 Louisiana. So the Mire case that you're
15 talking about with Robin and Phil Foco and
16 then myself for the State, we've got several
17 cases, they're all going up at the same times.
18 The writs were due at the same day. So --
19 JUDGE LARAMORE:
20 We're just waiting.
21 MR. BLACKWOOD:
22 -- The Court will likely consolidate them
23 if they accept it. But the point I was going
24 to bring out is the Second Circuit in dictum
25 says that it does go through the treatment
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1 guidelines, and that's my opinion at least
2 according to in dictum in court. And I don't
3 recall the Fifth making comment.
4 The First clearly said that, you know,
5 upheld the judge and overturned Judge
6 Thompson, who in the District Court level had
7 said that the drugs would go through the
8 guidelines. So that was overturned.
9 JUDGE KELLAR:
10 Okay. So I have the decision from the
11 First and the Fifth, and I know there's one
12 other circuit. I'm not sure which one that
13 is. But what that means is for the lawyers in
14 the room, they know that they are to follow
15 the Appellate Court in their jurisdiction.
16 To the extent that the Appellate Court
17 has made a different decision in the other
18 jurisdictions, then you do something
19 differently until the Supreme Court renders a
20 decision. And since we have a split in the
21 circuits, we're hoping that they will tell us
22 whether or not statewide pharmaceuticals are
23 subject to the medical treatment guidelines.
24 UNKNOWN:
25 We have one more client here at the IWP.
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1 They would like to say -- express their
2 concerns and what they've had going on and
3 suggests their opinions on what -- how we can
4 fix it.
5 MS. JAFFEE:
6 Hi, I'm Danielle Jaffee, IWP, Injured
7 Workers Pharmacy. We share the concerns with
8 the other pharmacists and pharmacies. But our
9 model is a little different, so we've seen a
10 lot more of this problem.
11 We're a home delivery pharmacy. We
12 deliver the prescriptions to the injured
13 workers in our area. We had to fill that gap.
14 I think some of the providers have seen where
15 when there's an issue at hand, a patient can't
16 go into a pharmacy and get the prescription
17 without paying out of pocket, paying out of a
18 health care plan or just walking out without
19 it. So we try to fill that gap.
20 We have a staff that works with adjustors
21 and insurance claims. We pay and we take that
22 risk. And it works for us. It's our model.
23 We work in all 50 states.
24 But here in Louisiana, the problem we're
25 seeing is so much confusion, as you say, on
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1 the court level as to if we need to be filling
2 it out. And that confusion comes from
3 insurers. Some insurance companies want us to
4 fill it out. Some want the doctors to fill it
5 out. You know, some want us to fill it out
6 for a prescription. Some say that once
7 they've approved it once, it carries through
8 the end of the prescription.
9 And on top of that confusion that we're
10 getting back, we do still have the 1010s.
11 We're covering ourself. So, for example, in
12 August, we filed -- we filled 700
13 prescriptions in Louisiana. We filed 700 1010
14 forms. We got replies from insurance
15 companies, only 78 replies.
16 And so for us, if they don't reply within
17 five days, it's a denial. And you can appeal
18 it, but that would be, like, over 600
19 decisions every month. And so for us, the
20 system is just not working as it should be.
21 And we're doing everything we're told
22 we're supposed to do, even when the attorney
23 is like he doesn't think we should be doing it
24 and we're still getting nothing from them and
25 that's apparently a denial for us. So we have
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1 to take on the decision, do we keep going or
2 do we cut off this service that we're
3 providing for these injured workers that
4 already have no where else to go. So we kind
5 of agree with them.
6 You have to value the system whether it's
7 pharmacies filling out the 1010 forms or give
8 pharmacies a clearer idea of when they need to
9 fill out a 1010 form, whether there are
10 certain drugs that require that
11 pre-authorization because they're less --
12 maybe they're less effective, they're not as
13 common in the workplace injuries, or, you
14 know, generic drugs are available.
15 You have to give us some certainty.
16 Otherwise, I mean, I'm assuming you don't want
17 us to file 650 some-odd 1009 forms.
18 JUDGE KELLAR:
19 So what you do is you get a prescription
20 from the physician, the health care physician,
21 and you fill it out. You send it to the
22 injured worker. And then, you submit a 1010
23 to the payor to see if they will pay for the
24 script that's already gone to the injured
25 worker?
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1 MS. JAFFEE:
2 That's how we do initial prescriptions.
3 Because, again, we cover that half. We'll
4 take on the risk that they're going to say no.
5 That's initial prescriptions. But we present
6 our 1010 forms as soon as we exceed the
7 prescription and start our work.
8 So we bill the next day. They're getting
9 the 1010 forms immediately and they have five
10 days to respond. They're not responding and
11 it's a confusion of what are we supposed to
12 do?
13 We're filling out the form. You're
14 telling us sometimes we don't need to fill out
15 the form and sometimes we need to, and you
16 don't reply. So you're going to deny us
17 without even evaluating the request we've
18 made.
19 JUDGE KELLAR:
20 Okay. Thank you.
21 MR. MIRE:
22 If there was a clearer role that there
23 was no 1010s for medications on the pharmacy
24 level or if it was just for branded
25 medications or it was just some type of role
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1 laid out, because you've all been in the
2 pharmacies. It's impossible for us to fill
3 out all of the 1010 forms, give the quality of
4 care to the patient and make sure they get the
5 meds, and then hope we get paid.
6 It's -- the carriers look for any reason
7 to deny. So they use this as their way to be
8 able to deny. And, personally, all the
9 generic meds are very cheap. It seems like a
10 good fix would be just to save the brand
11 medications.
12 JUDGE KELLAR:
13 The problem, as I said previously, is
14 there that there is a split in the circuits,
15 so it would be inappropriate for the agency to
16 make a decision one way or the other as to
17 whether or not pharmaceuticals are subject to
18 the medical treatment guidelines. And as
19 Judge Laramore says, the issue has gone up to
20 the Supreme Court. We don't know whether
21 they've accepted writs or not. But if they
22 do, then the Supreme Court will settle the
23 issue statewide, and then you'll have your
24 answer.
25 Until then, you only can do what the
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1 Appellate Courts and the jurisdiction in which
2 you're working has ruled. Whichever way
3 they've ruled is the way you --
4 MR. MIRE:
5 And that prevents us from appealing
6 through you as well with a 1008 or anything;
7 right?
8 JUDGE KELLAR:
9 No, it does not.
10 MR. MIRE:
11 So in the meantime, we could just say if
12 they deny for that reason, we can appeal with
13 a 1009?
14 JUDGE KELLAR:
15 That's correct. In those circumstances
16 where pharmaceuticals are subject to the
17 medical treatment guidelines, yes.
18 MS. JAFFEE:
19 So part of our problem comes with we
20 submit the 1010s, as I said, and they take
21 that out in the rules where if they don't
22 reply in five days, it's denied. And some of
23 that could be just administratively not
24 feasible for them to approve every
25 prescription 1010 form.
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1 But the problem is, if they don't rule on
2 it, they don't make a judgment on any part of
3 it, but they deny it by not responding. And
4 then, if we continue to fill or if anything
5 happens, they can come back and say, you
6 didn't get a prior authorization. Well, we've
7 tried.
8 And if you don't give us anything to
9 appeal on, we -- we're just -- we're banging
10 our heads against the wall because you're just
11 choosing to not respond basically. I'm not
12 saying they're doing it intentionally. Part
13 of it is, if you're submitting a prescription,
14 a 1010 form on every prescription, any
15 provider can tell you, Workers' Comp patient
16 can receive a lot of prescriptions, it might
17 not be feasible for the insurance company to
18 go through each and every one.
19 JUDGE KELLAR:
20 If they don't respond, that's a denial.
21 MS. JAFFEE:
22 So then it's considered not prior auth,
23 and then what are we supposed to do?
24 JUDGE KELLAR:
25 It's considered what?
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1 MS. JAFFEE:
2 Yeah, I know it's a denial.
3 JUDGE KELLAR:
4 That's a denial.
5 MS. JAFFEE:
6 Yeah, but we -- yeah, I know and I agree
7 with you, but our 1009s would be double to the
8 Medical Director. It would be 650 1009s in
9 August.
10 JUDGE KELLAR:
11 Okay. Yes, Dr. Zimmerman?
12 DR. ZIMMERMAN:
13 Sorry. Last one, I promise. In the
14 circumstance where we file a 1010 and we get
15 denied or we have tacit denial, there are
16 several carriers will then give us exactly the
17 same person who has denied us the first time
18 to have the discussion regarding voluntary
19 reconsideration. That seems like a system set
20 up for failure. If you've already made up
21 your mind, it's unlikely that I'm going to
22 change your mind.
23 Often times, the more reasonable carriers
24 will provide us with an alternant decision
25 maker for the voluntary reconsideration
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1 discussion. I don't know whether they have
2 any obligation under 2715 currently, but it
3 would be a great help if the rules insisted
4 that a different person provide voluntary
5 reconsideration than the one who provided the
6 original decision.
7 JUDGE KELLAR:
8 Thank you. The Chief Judge was just
9 pointing out to me that the 1009 process is
10 not available for retrospective treatment.
11 Which means, if you render it and are seeking
12 our approval afterwards, we're not going to
13 take the 1009 to the pharmacy guys in the
14 back.
15 Your request for treatment is supposed to
16 be made before you render the treatment. So I
17 don't know what we do with pharmacy benefit
18 managers like our IWP people, but we hear you.
19 MR. FERRIS:
20 Jason Ferris, also of IWP. Just a
21 question, I guess, regarding what you said.
22 If we then dispense the medication prior to
23 actually sending the 1010 -- no, 1009, however
24 for refills and stuff like that, we generally
25 know they're coming up, so we'll file the 1010
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1 first. In those cases, even though we file a
2 1010, no response to fill the med. Is the
3 1009 available to us then? Is it your
4 understanding or is that --
5 JUDGE KELLAR:
6 The 1010 is available -- process is
7 available before the treatment is rendered,
8 before the meds are given or filled or
9 whatever.
10 Freda, is that right?
11 MS. FREDA CHAUCER:
12 Yes.
13 JUDGE KELLAR:
14 If they've already rendered the treatment
15 or whatever, then we send the 1010 back
16 because we don't approve the procedure,
17 treatment, medicine after it's already been
18 given.
19 MR. FERRIS:
20 Okay. You said the 1010, but the 1009.
21 JUDGE KELLAR:
22 The 1009, same thing.
23 MR. FERRIS:
24 So once the medication has been
25 dispensed, we are not able to file a 1009?
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1 JUDGE KELLAR:
2 At presently, that is correct.
3 Presently, the 1009 process is not available
4 to you if you've already dispensed the
5 medication.
6 MR. FERRIS:
7 All right. So I think we can all see the
8 issue with that; right?
9 JUDGE KELLAR:
10 Yes. Absolutely.
11 MR. FERRIS:
12 All right. And then the only other thing
13 I wanted to just add is you mentioned, yeah,
14 this is going to the Supremes and we're going
15 to have some, hopefully, indication one way or
16 another across the state eventually. I'm just
17 thinking, in terms of if they say, yes, this
18 is required for pharmaceuticals, we still -- a
19 company like IWP is going to have issues
20 forever with this because we don't have access
21 to a lot of the -- for instance, there's a
22 spot right on the 1010 for the physician's
23 signature, for instance, or provider's
24 signature, or I think something like that,
25 right, and we don't have a lot of the
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1 information that's provided.
2 So I guess my suggestion would be, in
3 lieu of waiting for the Supremes, perhaps even
4 now start thinking about, if they come back
5 saying that the medical treatment guidelines
6 apply to pharmacy, there should probably be a
7 different form or something different that a
8 pharmacy would provide to the carrier versus
9 what an actual physician. It's just a
10 thought, something to put in your head. I
11 don't know if there's any way to do that
12 practically, but ...
13 JUDGE KELLAR:
14 Thank you. Anyone else?
15 MS. ROBERTSON:
16 I have a question about the 1010A forms.
17 I get a lot of denials because they don't have
18 enough information, but they're not utilizing
19 the 1010A form. Is that still in place?
20 I have, like, two carriers that actually
21 use it. And I think a lot could be done,
22 because they give us a extra ten days to get
23 it through, you know, get it back through to
24 you instead of denying it and we have to go
25 through the appeal process and wait up to 30
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1 days.
2 JUDGE KELLAR:
3 Freda, would you like to respond?
4 MS. FREDA CHAUCER:
5 Yes. The 1010A is still a form that
6 should be used. If the carriers are not using
7 that particular form, if you know the
8 particular carriers, so you can call them or
9 let us go ask and we can, you know, contact
10 them and remind them to use that form. If
11 they don't use it --
12 MS. ROBERTSON:
13 Its like, it's only about two carriers
14 that I know of that actually do use them. All
15 the rest of them don't use it. They'll just
16 outright deny it. Like, is there is way that
17 when it does get denied, can we use that as
18 some kind of fact that they didn't use the
19 1010A form and just outright denied it? We
20 don't get phone calls.
21 Like, we'll do a peer to peer, but my
22 doctors are in clinic all day. And they'll
23 call on that fourth or fifth day and my
24 doctors can't get to their peer to peer in
25 time. So, like, we're doing -- we're sending
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1 out a 1010, and they'll wait until the fourth
2 or fifth day to try to get in touch with the
3 doctor. They're not even sending 1010As where
4 the doctor can respond, and then we're sending
5 out 1009s.
6 JUDGE KELLAR:
7 And so the request for treatment is being
8 denied? All right. So the only recourse at
9 that point is to appeal.
10 DR. ZIMMERMAN:
11 You can also file a new 1010.
12 JUDGE KELLAR:
13 Well, you can file a new 1010, but I mean
14 why should she expect that her experience is
15 going to be different. The Utilization Review
16 Company or the payor is requesting peer to
17 peer review with her physician, who is in
18 clinic and never gets to talk to them, so
19 they're going to deny it again.
20 DR. ZIMMERMAN:
21 Perhaps get another five days and be able
22 to facilitate in light of the additional forms
23 during that five-day period.
24 JUDGE KELLAR:
25 Well, that's one way to do it. I mean
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1 and another way to do it is to file a 1009.
2 MS. FREDA CHAUCER:
3 File the 1009.
4 JUDGE KELLAR:
5 Yes, sir?
6 UNKNOWN:
7 Just a point of clarification. We were
8 just discussing something back here and I
9 might have misunderstood you. You said that
10 after something is -- a prescription is
11 dispensed and a 1010 form is denied, they
12 cannot submit a 1009 form; correct?
13 JUDGE KELLAR:
14 The medication is dispensed, you submit a
15 1010 afterwards, it's denied; right?
16 UNKNOWN:
17 Yes.
18 JUDGE KELLAR:
19 The 1010 process is intended to come
20 before the treatment to get approval before
21 the treatment.
22 UNKNOWN:
23 And that's the primary issue for these
24 people here. These companies here are doing
25 the right thing. They're providing services
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1 to injured workers. They're giving them the
2 medication. And then they take this risk.
3 And what happens is these forms are denied,
4 because after a five-day period, they're not
5 responding to these forms and it's getting
6 denied and they get stuck with the bill.
7 So how -- you're telling me that they
8 need to submit 1009 forms, but they can't
9 submit a 1009 form because they're doing the
10 right thing and providing care. So what's the
11 next course of action for them? What -- how
12 do they -- I mean they're trying to take care
13 of injured workers.
14 They're trying to get people back to
15 work. They're giving them the medicines they
16 need, but they can't follow the protocols in
17 place because there -- it's not working out
18 for their companies and their business models.
19 So what's their course of action?
20 What can they do right now until the
21 Supreme Court has ruled and y'all can change
22 the rule? Because it is a rule that's written
23 by the Department and by Workforce Commission.
24 What can they do in the meantime to recoup
25 some of this money or try to address these
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1 issues properly?
2 JUDGE KELLAR:
3 Well, I understand what you're saying and
4 you've explained your business model to us,
5 but the rule is such that approval is supposed
6 to be received before the medication is
7 dispensed or the treatment is given or
8 whatever. And I understand, because of your
9 business model, that puts you in a severe
10 disadvantage because you've taken the risk to
11 get injured workers the medication that has
12 been prescribed for them.
13 At this time, the only thing I can do is
14 tell you that we will consider what you are
15 saying, but no answers are going to be given
16 to you today. I do understand what you're
17 saying, but we have no answer for you at this
18 time.
19 DR. ZIMMERMAN:
20 But if -- regardless of which way the
21 Supremes rule, the best case scenario for
22 different pharmacies is that the formulary
23 requirement or the 1010 process applies that
24 they can get perspective authorization. And
25 if the 1010 process doesn't apply, then
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1 they're going to have to go to a 1008, which
2 will take months which will mean the patients
3 will have care delayed even more. So either
4 way, patients are going to suffer regardless
5 of which way the Supreme Court rules.
6 JUDGE KELLAR:
7 But what the gentleman is saying is that
8 manner in which they do business is they don't
9 ask for perspective approval. They're asking
10 for retrospective approval.
11 DR. ZIMMERMAN:
12 Which is clearly not how the rules work.
13 JUDGE KELLAR:
14 Which is not how the rules were intended
15 to apply. And I understand in this case,
16 there's a different business model for them.
17 But, unfortunately, the medical treatment
18 guidelines have not carved out something
19 special for pharmacy benefit managers. And
20 maybe we should.
21 I don't -- I'm not saying that we won't.
22 I'm not saying that we should not. But at
23 this current time, we do not. But I hear you
24 and I will -- it will be taken into
25 consideration.
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1 UNKNOWN:
2 Thank you.
3 MR. MIRE:
4 And with all due respect, it's not so
5 much the business model, ma'am, it's the
6 patient needing the care because they won't
7 reply in a timely fashion. And if you want to
8 be in business, exist as a health care, you
9 have to worry about the patient. And they
10 can't wait that timeline --
11 JUDGE KELLAR:
12 I agree.
13 MR. MIRE:
14 -- even the initial five or ten or
15 anything.
16 JUDGE KELLAR:
17 I agree.
18 MR. MIRE:
19 So the new rules would be very
20 beneficial.
21 JUDGE KELLAR:
22 And that's why we're all here is
23 because --
24 MR. MIRE:
25 I appreciate it.
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1 JUDGE KELLAR:
2 -- because we want the injured workers to
3 get the treatment that they need quicker,
4 faster so that they can return to work in a
5 timely fashion.
6 MR. MIRE:
7 Thank you.
8 JUDGE KELLAR:
9 Remember, we're the Department of Labor,
10 we put people to work. So to the extent that
11 we can get them the treatment that they need
12 and get them back in the workforce, that's
13 what we're here for.
14 UNKNOWN:
15 I just want to thank you all very much
16 for trying to address these issues. I know
17 it's a lot to deal with and it's a complicated
18 process. But thank y'all for trying to
19 address this and taking our concerns today.
20 JUDGE KELLAR:
21 Thank you for coming.
22 Yes, ma'am?
23 MS. FONTENOT:
24 I don't know if I want to -- I'm Terri
25 Fontenot. Hi, Dr. Zimmerman.
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1 DR. ZIMMERMAN:
2 Hi. Be careful.
3 MS. FONTENOT:
4 This was brought up in the meeting in
5 Lafayette. The rules that I read, and that's
6 why I didn't talk about it in the meeting in
7 Lafayette, but the Louisiana medical treatment
8 guidelines in the Rule R.S.23 blah, blah,
9 blah, it says that if a procedure is not
10 covered under Louisiana treatment guidelines,
11 you would revert to another state's
12 guidelines. Is that still so?
13 JUDGE KELLAR:
14 It does -- it does say that.
15 MS. FONTENOT:
16 Because we're seeing denials from Dr.
17 Picard because it's not covered under the
18 medical treatment guidelines.
19 DR. PICARD:
20 So we prefer to use the Louisiana State
21 guidelines as much as possible. When a
22 procedure is not within the guidelines, I
23 sometimes use now, and we've just recently
24 figured this out, that we can do that, what
25 you're discussing, because we've looked that
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1 up, we use OBG guidelines and other guidelines
2 when they're available. We don't have access
3 to all of that where I can keep up with
4 everybody's guidelines.
5 So, normally, what I rely on would be the
6 insurance company or somebody to provide that
7 part. And a lot of them do, they provide that
8 part of the guideline of another state or an
9 OBG for me to look at. And we previously had
10 not been using that, but now we are. And when
11 they are both provided to me when it's in the
12 state guidelines or another guideline there, I
13 don't view the other guideline, I use the
14 state's guideline.
15 MS. FONTENOT:
16 Right.
17 DR. PICARD:
18 But we are looking more now towards other
19 guidelines when they are sent to us to look
20 at.
21 MS. FONTENOT:
22 And I have other concerns. Drug
23 screenings, I know y'all are looking into --
24 JUDGE KELLAR:
25 Yeah, we're trying to reconcile what is
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1 in the medical treatment guidelines with
2 regard to urine drug screens and what the
3 Department of Hospitals requires.
4 MS. FONTENOT:
5 And I totally understand it because
6 that's licensure for physicians and practicing
7 (inaudible). My concern is the physicians who
8 are doing urine drug screens monthly, and the
9 urine drug screens are all normal monthly, and
10 they're still doing them monthly. We also
11 send off for a conformation monthly.
12 So in y'all looking into maybe updating
13 the guidelines, if both types of drug screens
14 can be addressed, because confirmations, when
15 they're looking on a patient who has never had
16 an abnormal drug screen and they're looking
17 for conformation on synthetic marijuana and
18 heroin and cocaine, and it's kind of, on a
19 78-year-old patient, it's kind of --
20 JUDGE KELLAR:
21 Counterproductive?
22 MS. FONTENOT:
23 -- counterproductive. If a patient has
24 never had an abnormal drug screen, I don't
25 know why you would do a confirmation of 30
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1
drugs.
2
3
DR. ZIMMERMAN:
Well, let me tell you why.
Urine drug
4 screens do not test for all medications. And
5 so if the patient is on Usenta, if the patient
6 is on synthetic marijuana, if the patient is
7 on medications that -- (inaudible) is another
8 one that is not typically within a cup, then
9 confirmatory tests monthly are perfectly
10 reasonable.
11 Additionally, if the patient has had a
12 history even in the distant past of drug
13 abuse, specifically cocaine or drugs other
14 than pot, I personally think it's perfectly
15 reasonable to test them monthly.
16 Quarterly testing is reasonable for the
17 average patient, but carriers aren't aware
18 necessarily of whether the patient is an
19 average patient or a high risk patient. And
20 so the notion that we should have to provide a
21 cookie cutter approach for all patients is not
22 a reasonable thing to ask us to do. We need
23 to customize our care to the risks of an
24 individual patient, not to the cost structure
25 of the carriers.
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1 JUDGE KELLAR:
2 Thank you.
3 Yes, ma'am?
4 MS. ROBERTSON:
5 I have a question about the 1010s. When
6 we first started doing 1010s, there was a list
7 for every carrier where you should, like, a
8 dedicated 1010 line. And as the years go on,
9 there's either the adjustor say, send it
10 straight to me, or we have to send it to a UR
11 company or even a number that's not on this
12 list that's on the website. So we get a lot
13 of nonresponses and we are doing tacit
14 denials.
15 Is there going to be a list put up that
16 we can just send those to this 1010 dedicated
17 line; therefore, we know it's there and they
18 can't say we haven't received it, you were
19 supposed to send it here, or you were supposed
20 to send it to me? We need a dedicated line
21 for these 1010s so that we know that they're
22 getting to the correct place.
23 JUDGE KELLAR:
24 One of the things we've noticed is that
25 the numbers that are contained on our website
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1 for the dedicated fax lines, they're also not
2 up to date. And many of the tacit denials
3 result from those numbers not being up to
4 date. And so one of the things that we've
5 decided to write into the rules as a
6 responsibility of the carriers to give us a
7 good number, good fax number and a good
8 telephone number.
9 In the Workers' Compensation courts, we
10 require injured workers to keep us updated
11 with a good address for them. If we send them
12 a dually noticed date for a hearing or trial
13 and they don't receive it because the address
14 is incorrect, we penalize the injured worker
15 by dismissing his case, but we don't do
16 anything like that to recalcitrant TPAs or URs
17 or payors who don't keep us apprized of a good
18 number for them.
19 And so one of the things that we have
20 already considered is writing in the rule a
21 penalty for their failure to keep us apprized
22 of a good number so that we won't get so many
23 tacit denials as a result of the numbers not
24 being in there. Thank you for bringing that
25 up.
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1 DR. ZIMMERMAN:
2 With regard to the tacit denials for one
3 second, the Medical Advisory Committee had at
4 one stage discussed the possibility of
5 reversing courts and having the five-day
6 period lead to tacit approvals. I wonder
7 whether that ever was considered and whether
8 that is still under consideration.
9 JUDGE KELLAR:
10 There's a member of the Advisory Council
11 back here and I think he was one of the
12 proponents of tacit approvals. So why don't
13 we let Mr. Davoli tell us why we don't have
14 that.
15 MR. DAVOLI:
16 That's still under consideration.
17 JUDGE KELLAR:
18 Tell us who you are, please.
19 MR. DAVOLI:
20 Excuse me?
21 JUDGE KELLAR:
22 Tell us who you are. Who are you?
23 MR. DAVOLI:
24 Oh, Chuck Davoli. I'm a past member of
25 the Advisory Council and apparently will be on
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1 the new one. I'm a claimant attorney. That
2 was an issue early on that was intended to
3 follow what was the jurisprudential rule at
4 the time when we had problems with -- there
5 used to be a time when we didn't have a time
6 limit at all as approving the treatment.
7 And then, there was always a time limit
8 for payment of medical bills. That, even in
9 and of itself, did not happen. So the
10 jurisprudential rule was, if they don't
11 approve it within a reasonable period of time,
12 and that was at the time, it's considered a
13 tacit denial and then you proceed with a 1008.
14 That's the history, I think, of how we got the
15 tacit denial.
16 We were kind of trying to maintain that
17 rule of thumb. And so, basically,
18 arbitrarily, it was set at five business days,
19 I think, and the time receipt to consider the
20 tacit denial. But the original intent was
21 that you can go to a 1008 without interjected
22 step -- interim step with, you know, the 1010A
23 which is actually her suggestion is very good
24 if the carriers would use it. But most
25 carriers and payors, and this is my bias, are
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1 in a cause for mitigation, not in a
2 utilization, reasonable utilization mode.
3 There are some carriers, you know, Mike
4 Morris left. I consider (inaudible) one of
5 the more responsible administrators out there.
6 Why argue about the necessity of an MRI when
7 you've got evidence there or it isn't there,
8 and the costs that that prohibited causes.
9 And so it depends on the philosophy out
10 there of whose basically approving. Now, you
11 know, somebody mentioned a business model of
12 IWP. They take the risks. I mean I --
13 frankly, you know, the rules shouldn't be any
14 different for them than they are for any other
15 health care provider. You want to take the
16 risks, take the risks with the $750, do it.
17 You want to take the risks beyond that, I mean
18 there are some claims out there that are
19 non-compensable.
20 And in my opinion, even though I come
21 from the claimant's side, why should an
22 employer in a non-compensable claim
23 necessarily get stuck with that? So it's
24 checks and balancing.
25 But to answer your question, the whole
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1 intent was that that's how it came about. It
2 used to be a rule of thumb. Well, they
3 haven't -- you know, what's a reasonable
4 period of time? Sixty days? Ninety days? I
5 mean it's still going on. So we just
6 arbitrarily said five days.
7 Now tacit approval, what would that mean?
8 I mean from a legal standpoint, that would
9 just mean that you now, Doctor, can take the
10 risk and treat. But even -- now, hold on.
11 Hold on. You could take the risk and treat.
12 Because even if they authorize, it's not a
13 guaranteed payment; correct? I mean that's my
14 understanding. I mean they could authorize
15 the treatment, but it's no guarantee of
16 payment.
17 So, you know, we've talked about this and
18 talked about this and talked about this. You
19 know, I was a tacit denial advocate. At this
20 point, I mean we've gotten away from, and I
21 appreciate what the Workforce Commission and
22 particularly Director Kellar is doing in
23 trying to -- and we've been in some pretty
24 serious deliberations on revising the 2715
25 rule, because the intent of the guidelines,
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1 and I'm a guideline advocate, was to make
2 medical treatment for the providers and for
3 the claimants more predictable, more timely,
4 more efficient.
5 And, unfortunately, the bureaucratic
6 process and the manipulation and the games
7 that are played are delaying that process, and
8 it's unfair to the system. But I don't know
9 if that answers your question, but that's the
10 history of the tacit denial. And I'm not sure
11 I'm an advocate for either anymore.
12 DR. ZIMMERMAN:
13 (Inaudible.)
14 JUDGE KELLAR:
15 I can't hear you, Dr. Zimmerman.
16 DR. ZIMMERMAN:
17 I'm sorry. The manipulation that's
18 taking place now is more to the carriers. And
19 the way that they're doing is by not
20 responding. And so if there were a cost to
21 not responding, it would encourage them to
22 actually give us a decision as opposed to
23 giving us nothing. So if there were an
24 incentive for them to actually respond,
25 instead of hoping that we'll go away, it might
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1 actually make this process more predictable
2 and more expeditious.
3 JUDGE KELLAR:
4 I don't disagree with you, but I think
5 there's some adjustors in the room who would
6 say that the gamesmanship is not just on their
7 side. I think some of them, I've heard said,
8 the gamesmanship is on the health care
9 physician side as well. So, you know, we're
10 not really here to point fingers.
11 DR. ZIMMERMAN:
12 I'd love to hear them speak.
13 JUDGE KELLAR:
14 We want to try to solve whatever problems
15 we have because I think there is gamesmanship
16 in the system period, regardless of whose side
17 that's on. But I think that is a very good
18 suggestion that there should be some teeth in
19 the system if they fail to respond. Some of
20 that is delivery. Some of it's because they
21 don't have good numbers, but they should be
22 held accountable for that. Just like we hold
23 injured workers accountable, the adjustors,
24 payors, and TPAs or whomever should be held
25 accountable as well.
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1 DR. ZIMMERMAN:
2 Chuck said five days was the arbitrary
3 number for Texas. (Inaudible) three days. So
4 the notion that 60 days was reasonable is
5 believed by the fact that Texas believes that
6 we give too much time.
7 JUDGE KELLAR:
8 And Texas has tacit approval.
9 DR. ZIMMERMAN:
10 Yes, ma'am. Yes, ma'am.
11 JUDGE KELLAR:
12 Anyone else? Yes, sir?
13 MR. MITCHELL:
14 Yeah. I'd just like to comment because
15 one of the first things that I thought as well
16 with the five-day period was, what about tacit
17 approvals? Jonathan Mitchell, deGravelles,
18 Palmintier, Holthaus & Fruge'. And I mainly
19 represent plaintiffs.
20 We have to remember that the purpose of
21 these rules is for the benefit of the worker.
22 And there are rules that must also say that we
23 need to assess intelligently whether or not
24 this worker deserves the treatment and whether
25 or not the treatment is compensable. But the
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1 insurers, the compensation system, we've all
2 imposed ourselves into a relationship.
3 And the relationship that we've imposed
4 ourself into is a relationship between the
5 patient and its physician. And if you think
6 about it, that's the purest relationship that
7 we have in the system.
8 When the attorney becomes involved and
9 when the adjustor becomes involved and has
10 some sort of skin in the game other than just
11 the treatment and well being of the patient --
12 so since we've chosen to impose ourselves into
13 this system, shouldn't the impetus and the
14 costs be on the insurer to say, look, if
15 you're going to deny this person what his
16 doctor is saying he necessarily needs, then
17 you need to do it expeditiously. And if you
18 don't do it expeditiously, then this person
19 who is at home suffering is going to have
20 their claim approved, their treatment
21 approved.
22 And I think if you get back to the, like
23 I said, the basis of these rules which is to
24 make sure that these injured workers get the
25 treatment that they need that their physicians
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1 are recommending, that I would certainly
2 advocate a reversal to a tacit approval as
3 opposed to a tacit denial.
4 JUDGE KELLAR:
5 You would suggest a tacit approval
6 instead of a tacit denial?
7 MR. MITCHELL:
8 Yes.
9 JUDGE KELLAR:
10 Okay. Thank you.
11 Anyone else? Yes, sir?
12 MR. PRICE:
13 Hello, I'm Brad Price. I represent
14 injured workers. What I want to address as
15 well as the information is one of the issues
16 I'm having in my practice is the doctor
17 submits the 1010 and I don't intend to know
18 what the UR procedure is, but the information
19 is sent to the UR doctor and the UR doctor
20 comes back and he says, you know, meet
21 criteria A, B, C, but you lack approval of
22 conservative care. And that's because, I
23 guess, the treating physician has not sent in
24 whatever documentation he feels is required.
25 But the issue that I have is the carrier
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1 has approved all of that treatment and is in
2 possession of all of those records. So it's
3 putting the illness on me or the doctor to run
4 around and scramble around and try to find out
5 where his PT, where his therapy was or
6 whatever the conservative care was, and then
7 try to submit it in time for the 1009 to get
8 it before the Medical Director.
9 And I think there needs to be some kind
10 of -- some kind of mechanism in place that
11 when the submission is made and the carrier is
12 in possession -- I had one that I looked at
13 today. They said, we did not have a
14 discogram. Well, 45 days ago, they approved a
15 discogram. It was done. And I know they had
16 the report, but the UR is denying and that
17 they don't have the information, which is all
18 being in the possession of the carrier.
19 I don't think there's -- assuming that I
20 even get notice of the UR denial, you know,
21 there needs to be some kind of mechanism or
22 some kind of stick that, you know, I as an
23 attorney can say, hey, look, you have this
24 information and you're denying it solely
25 because you're saying you don't have it. And
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1 that's just a practical problem that I face
2 once, twice a week.
3 JUDGE KELLAR:
4 Thank you.
5 MS. ROBERTSON:
6 I have a question about the 1010 for
7 office visit. At one point, they was saying
8 we didn't need a 1010 for referrals. Some
9 people want it. Some people won't approve
10 without it. Some carriers won't take a
11 patient without an approved 1010. And then we
12 have this office visit situation, I think it's
13 the first year, they approve up to 12 visits.
14 And every year after, then it's four to six.
15 And it's confusing because I don't know
16 whether to send a 1010 for a office visit or
17 to -- because some does -- some don't want it.
18 They'll say 1010 is not required for office
19 visits or 1010 is not required for referrals.
20 But a lot of carriers don't take a patient
21 without the 1010 approving them to see their
22 doctor.
23 JUDGE LUNDEEN:
24 Okay. So this is a repeating issue that
25 we're having. The law does not require a 1010
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1 for a referral. The doctor says it's his
2 patient or her patient and makes a referral to
3 another doctor of a different specialty.
4 Under the Workers' Compensation law, you have
5 the right to choose a specialist in each field
6 as the injured worker.
7 Now as the medical provider, which is the
8 question that you're asking, you don't need
9 the 1010 for the referral. But if you are the
10 receiving doctor or medical provider, then you
11 probably need to put in your 1010 for the
12 visits that you intend to have. Now what is
13 the scope of that visit?
14 You don't know, but you know you have
15 your initial evaluation. Is it a level five?
16 Is it a level four? What a lot of providers
17 are suggesting to us that they have done, and
18 I'm not saying that this is the answer, but it
19 is what we are hearing across the state, is
20 they're putting in for the highest level for
21 their initial evaluation appointment and then
22 putting in for the subsequent appointments and
23 putting things in like up to level five
24 depending on what the patient's needs are or
25 if there's extra tests that you're going to
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1 need.
2 Maybe, typically, you're a type of
3 provider that normally does X-rays on the
4 first visit or certain other tests, but you're
5 not going to do need those, but maybe you will
6 need those on followup, you can put it in as
7 your regular general request. But then say,
8 and patient may need, but will determine at
9 visit.
10 And those seem to be getting through the
11 system a little bit better. So your referral
12 MD doesn't put the 1010 in for the referral.
13 The referral MD simply makes the referral, but
14 the recipient MD is going to make the request
15 for the office visits for his or her practice.
16 MS. ROBERTSON:
17 Okay.
18 DR. ZIMMERMAN:
19 I apparently have an opinion on every
20 subject. The problem is that carriers will
21 sometimes suggest that certain specialties are
22 not medically necessary and denied the
23 referral based on the tact that they're
24 determining that patient X, who has been seen
25 by a primary care doesn't need to see an
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1 orthopedist or doesn't need to see a pain
2 management specialist and are imposing
3 themselves in between the referring physician
4 and the referral and the patient -- and the
5 physician who is receiving the referral.
6 JUDGE KELLAR:
7 Well --
8 JUDGE LUNDEEN:
9 As -- go ahead.
10 JUDGE KELLAR:
11 I was just going to say that all patient
12 care is under the umbrella of reasonable and
13 necessary and work related.
14 DR. ZIMMERMAN:
15 Yes, ma'am. But for a carrier to render
16 the determination as to whether a referral is
17 reasonable and necessary has them serving in
18 the role as provider.
19 JUDGE KELLAR:
20 Well, the statute provides that the
21 injured worker has the right to a physician in
22 a different field of specialty. And we've had
23 referral issues before the medical treatment
24 guidelines, and I thought this issue would
25 have been laid to rest.
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1 JUDGE LARAMORE:
2 It's called a Motion to Compel Choice of
3 Physician.
4 DR. ZIMMERMAN:
5 It's an individual, not a specialty.
6 JUDGE LARAMORE:
7 Not a specialty. What I'm saying is when
8 you make the referral, if the carrier is
9 decided that they don't think that that's
10 reasonable, that that referral is reasonable,
11 then the claimant files a 1008 and attaches a
12 Motion to Compel Choice of Physician in this
13 Specialty.
14 And their evidence is here is the
15 prescription. I've been to see my doctor.
16 Here's the prescription on pain management. I
17 saw my ortho. He says I now need pain
18 management. And let the adjustor come forward
19 and explain why they think that that specialty
20 is not needed.
21 And you -- the Act provides for an
22 expedited process for that. You could get on
23 the docket in two weeks if you file. But
24 don't just file a 1008 and say, I want Choice
25 of Physician. They need to file with it a
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1 motion and order so we can set it on the rule
2 docket.
3 And you'll get on the rule docket within
4 two weeks. And you'll get a decision yeah,
5 yeah or no, no. But there's an expedited
6 process applied in the Act for Choice of
7 Physician issue.
8 JUDGE KELLAR:
9 Yes, ma'am?
10 MS. TARKINGTON:
11 I have a question for that lady right
12 there.
13 JUDGE KELLAR:
14 Ma'am?
15 MS. TARKINGTON:
16 I had a question for the lady walking
17 out. Sorry.
18 JUDGE LARAMORE:
19 I can wait.
20 MS. TARKINGTON:
21 No, I can wait.
22 JUDGE LARAMORE:
23 Go ahead.
24 MS. TARKINGTON:
25 What you were just saying, can you
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1 explain that to me one more time what you were
2 saying, because I'm not an attorney and I
3 don't understand documents, stuff like that.
4 Because I -- what I understood what you were
5 saying is I -- I'm a physician's office and I
6 refer to another physician's office, I don't
7 have to do a 1010 form or anything like that;
8 is that correct?
9 JUDGE LARAMORE:
10 That's correct.
11 MS. TARKINGTON:
12 Okay. So --
13 JUDGE LARAMORE:
14 You're -- you work for a chiropractor;
15 correct?
16 MS. TARKINGTON:
17 Yes, ma'am.
18 JUDGE LARAMORE:
19 You're supplying chiropractic treatment.
20 And now, your chiropractor has decided that
21 you need an orthopedic surgeon?
22 MS. TARKINGTON:
23 Correct.
24 JUDGE LARAMORE:
25 And your chiropractor has written a
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1 prescription -- referral for an orthopedic
2 surgeon?
3 MS. TARKINGTON:
4 Right.
5 JUDGE LARAMORE:
6 And you've contacted the carrier and the
7 carrier says, we need to send him to Prime
8 Medical or to doc in the box. Before he came
9 to you or while he was coming to you and our
10 doc in the box does not say he needs an
11 orthopedic.
12 MS. TARKINGTON:
13 Okay.
14 JUDGE LARAMORE:
15 Okay. So we're not going to agree.
16 There's a disagreement between our doctor, our
17 GP and your chiro or two GPs, two doc in the
18 boxes, okay, intern or whatever that he needs
19 this specialty care. The claimant, the
20 patient can file a 1008 with our office and
21 file a motion asking for the judge to look at
22 the issue of Choice of Physician in that
23 specialty. And you can get on the docket for
24 a hearing within about two weeks.
25 MS. TARKINGTON:
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1 So the patient can do that?
2 JUDGE LARAMORE:
3 Yes.
4 MS. TARKINGTON:
5 Okay. Where -- and this might be a
6 stupid question, but where is the patient
7 supposed to know that? From where? Or who?
8 Because I can guarantee you, my patients don't
9 know that.
10 JUDGE LARAMORE:
11 You know, your ignorance of the law is no
12 excuse. You ever heard of that? Okay.
13 MS. TARKINGTON:
14 Right.
15 JUDGE LARAMORE:
16 You know, you can't -- you know, that's
17 just the way it is. Now, I would suggest that
18 if you've got patients that don't understand
19 it, that they open the phone book and call and
20 make an appointment and see -- there's lawyers
21 all out here. They'll throw you cards like
22 crazy, you know, so that they can file that
23 motion.
24 MS. TARKINGTON:
25 Okay.
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1 JUDGE LARAMORE:
2 And they could call our office. We have
3 an ombudsman in our office, a DRS who will
4 talk to unrepresented claimants for people who
5 just call with questions, look, I'm having
6 trouble. And they'll tell them, come down
7 here and pick up this form and we'll make sure
8 that you get the form filled out and we'll get
9 you in front of the judge. But you're always
10 at a disadvantage if you're an unrepresented
11 claimant. They should all have
12 representation.
13 MS. TARKINGTON:
14 Right. I totally agree. And patient
15 care should come first no matter what. That's
16 how I believe it should be.
17 JUDGE LUNDEEN:
18 And so just that you know in the future,
19 if you have a pen, or you can contact our
20 office. But you can find this actual statute,
21 which is very, very self-explanatory in Title
22 23, which is the Workers' Compensation Act,
23 Section 1121.B1. And it specifically states
24 that the employee shall have the right to
25 select one treating physician in any field or
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1 specialty. Employee shall have the right to
2 an expedited summary proceeding pursuant to
3 Revised Statute 23, Section 1201.1.K8 when
4 denied his right to an original physician of
5 choice.
6 A Workers' Compensation judge shall set
7 the hearing for the matter within three days
8 of receiving the employee's motion for the
9 expedited hearing. The hearing shall be held
10 not less than ten nor more than 30 days after
11 the employee or his attorney files the motion
12 for an expedited hearing.
13 Then, it goes on to talk about how the
14 judge provides it. Now in case you don't
15 remember all of that or couldn't write that
16 quickly, you can go on to Laworks.net and you
17 can find it there. Or you can go onto the
18 Louisiana Legislature's website and you can
19 pull it up under the Title, which is 23 and
20 then the actual statute number, which
21 Subsection 1121. And you can find many things
22 there.
23 And since you are -- I assume you're
24 working in the medical field? Are you a
25 medical provider?
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1 MS. TARKINGTON:
2 Yes, ma'am.
3 JUDGE LUNDEEN:
4 All right. Well, you're also one more
5 line of advocacy for that patient. So
6 although your patient may not be a lawyer, now
7 you know what to tell them.
8 MS. TARKINGTON:
9 Right. Exactly. We don't do -- we've
10 never really done Workman's Comp, so I have
11 two cases with attorneys now. And that's why
12 I don't know a lot. I'm -- and that's what I
13 came here for is to learn and make sure that
14 my patients get the best care first and
15 foremost before anything. And that's when the
16 pharmacies were talking and Dr. Zimmerman and
17 these attorneys, and I agree that patient care
18 should come first. It's all the other stuff
19 that we have to go through, and I think that
20 needs to change as well and do a smooth
21 transition and make sure our patient gets
22 better faster.
23 JUDGE KELLAR:
24 If you go to Laworks.net, under Workers'
25 Compensation, you can find a list of all of
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1 the district courts and the ombudsman in each
2 one of those offices called a Dispute
3 Resolution Specialist or DRS. You can call
4 them and they can help your claimant navigate
5 the system. They're not going to give them
6 legal advice, but they'll tell them what forms
7 they need to file in order to get the relief
8 that they're seeking.
9 MS. TARKINGTON:
10 Thank you.
11 MR. GREEN:
12 There's also some well-written bulletins
13 on the website.
14 JUDGE KELLAR:
15 Can't hear you. Who are you?
16 MR. GREEN:
17 There's also some --
18 JUDGE KELLAR:
19 Who are you, Will Green?
20 MR. GREEN:
21 There's also some extremely well-written
22 bulletins on the website.
23 JUDGE KELLAR:
24 Who are you, Will Green?
25 MR. GREEN:
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1 My name is Will Green. And I was just
2 going to say, I appreciate y'all doing this.
3 I think, you know, the reality is, there's a
4 lot questions, but there's a lot of good
5 answers to the questions. And, you know,
6 we -- one of the -- what I -- when I worked at
7 the Workforce Commission, one of the best
8 parts of my job was getting to go out and
9 actually sitting in the physicians' offices
10 and, you know, there was a lot of issues.
11 But the reality is that it was just that
12 they knew the questions, they just didn't know
13 how to get the answers. And there is a lot of
14 good answers and there is a lot of solutions
15 to your problems out there that are already in
16 the law.
17 And just to see the light bulb go off in
18 some offices was pretty amazing and they'd
19 say, oh, my gosh, I didn't know those answers
20 were there. And I think one of the things
21 that the office did was, to me, incredible was
22 contracting with a guidelines provider. And
23 every physician in here, every medical
24 provider, I think, still has access to that
25 medical guidelines software where you can
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1 literally go in there, put an ICD or a code in
2 and it will just spit out for you exactly what
3 documentation you need to get to hear.
4 So when there's tools like that, but it's
5 just, I think, getting -- you know, getting
6 the answers in place. And Madam Director, you
7 know, you've talked about a lot of these
8 things. So I think the ball is already
9 rolling on where you don't have answers to the
10 questions, they are common questions, and so
11 you have put some solutions in place.
12 But, you know, there's a process there.
13 And so I guess in furtherance of that, will
14 there be an opportunity for the issues, the
15 questions that maybe we don't have an answer
16 for and maybe are a gray area, will those be
17 vetted through the Advisory Council and
18 discussed or can you comment on that for me,
19 please?
20 JUDGE KELLAR:
21 We actually have a 2715 Committee. The
22 rules which help us to navigate medical
23 treatment guidelines are in litigation at the
24 19th Judicial District Court. And so what we
25 would like to do is to offer a compromise to
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1 the plaintiffs by way of modifying these rules
2 before we have to actually go back to a trial
3 on the merits. So we have a Committee, it's
4 2715, for that purpose.
5 But, you know, I think everybody in that
6 room just about is an attorney or some
7 stakeholder. But we realized -- I realized
8 that we haven't heard from you. You are the
9 guys who actually use 2715.
10 And although we sit in our Ivory Tower
11 and we can, you know, rein down some rules for
12 you to work, we didn't hear from you. And I'm
13 glad that I have taken this opportunity to
14 hear from the guys who actually work with 2715
15 around the state because you have been very
16 insightful in the sense that I've heard a lot
17 of things that I never imagined were
18 difficulties.
19 So while the 2715 team will be trying to
20 make modifications to a rule, we will have the
21 benefit of the transcripts of all of the Town
22 Hall Meetings that we've had throughout the
23 state to refer to. And we will be making
24 modifications based upon the comments that
25 you've given us, the suggestions that you've
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1 given us.
2 And then once we've done that, we will
3 take what we believe was sufficient
4 modifications to the Workers' Comp Advisory
5 Council and probably give them copies of the
6 transcript as well so they'll know what your
7 comments were, and then submit what we think
8 is a fix to the plaintiffs and hopefully
9 resolve the issues. That's what I intend to
10 do.
11 MR. GREEN:
12 Thank you.
13 JUDGE KELLAR:
14 Yes, sir?
15 MR. BLACKWOOD:
16 Can you tell us who is on your 2715
17 Committee and how it was derived; like, who
18 appointed the people to it?
19 UNKNOWN:
20 It's a secret.
21 JUDGE KELLAR:
22 No, it is not a secret. We have Meredith
23 Trahant, Attorney General in our office who
24 has been working closely with the litigation
25 since it began; Chuck Davoli, who is on the
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1 Advisory Council; Michael Morris is on the
2 Advisory Council; and Will Green; myself. Am
3 I missing someone?
4 MR. GREEN:
5 Greg Hubachek.
6 JUDGE KELLAR:
7 Greg Hubachek, who was on the Advisory
8 Council. He was not reappointed this year.
9 But these people were chosen because they're
10 either intimately familiar with the litigation
11 like Meredith or they helped to write the
12 original 2715 Rules. So we're hoping they'll
13 be instrumental in revising it and myself, of
14 course. The Director -- the Executive
15 Director of the agency, Ava Deja and the
16 Deputy Director of the agency, Kathy Wells,
17 have both sat in on some of the those 2715
18 meetings.
19 DR. ZIMMERMAN:
20 Why aren't there any medical providers on
21 that committee?
22 JUDGE KELLAR:
23 Excuse me?
24 DR. ZIMMERMAN:
25 Why aren't there any medical providers on
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1 that committee?
2 JUDGE KELLAR:
3 Well, we only have one Medical Director
4 that we listen to in terms of the 1009
5 process.
6 DR. ZIMMERMAN:
7 But you've reached out to the community
8 for input beyond your agency.
9 JUDGE KELLAR:
10 Yes, we have. And what Dr. Picard
11 generally does is advise us on the medical
12 treatment guidelines themselves, the four that
13 are currently part of the guidelines, the
14 technical, medical stuff. The 2715 is more
15 the process by which we implement the medical
16 treatment guidelines. Does that --
17 DR. ZIMMERMAN:
18 And the life blood of the providers who
19 use them.
20 JUDGE KELLAR:
21 I understand. Thank you.
22 Is there anything further?
23 Dr. Picard, at this time, would you like
24 to tell us some of the things that we look for
25 when you are reviewing the 1009s?
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1 DR. PICARD:
2 Yes. So this is repetitive for some of
3 the people that I see that have been in some
4 of the other meetings. But with the 1009,
5 it's a disputed claim where you have an
6 insurance company on one side of that claim
7 and a provider or patient representative on
8 the other side.
9 The procedure or therapy or whatever it
10 happens to be that's been requested on behalf
11 of the injured worker that has been denied by
12 the insurance company that have made the
13 decision on whether that denial is going to
14 stand, because the procedure does not meet the
15 medical treatment guidelines or that it's
16 going to be reversed, and I'm going to approve
17 it, because I think it does meet the medical
18 treatment guidelines. From the insurance
19 company's standpoint, one of the big problems
20 we see is with tacit denials.
21 Because what happens in that instance is
22 I don't have anything from the insurance
23 company to explain why they denied the
24 procedure. So my decision is based completely
25 upon the provider's documentation as to
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1 whether or not that meets the medical
2 treatment guidelines. More often, that's
3 going to result in an approval. Of course, I
4 still look at it to be sure it does meet the
5 guidelines.
6 But without having the other side,
7 without having the insurance company's
8 reasoning or showing some cause for their
9 denial, then that's going to be a problem for
10 the insurance company, because most of those
11 are going to be approved.
12 The other thing that I do need to see
13 from the insurance company when I do get a
14 denial letter that documents why they deny a
15 procedure is the information in that letter
16 has to be correct. So often times, the
17 insurance company might suggest that a patient
18 does not have radiculopathy, for example, when
19 the provider does clearly state that they do.
20 So if that information is incorrect, I'm going
21 to side with the provider, assuming everything
22 is documented and meets the guidelines from
23 the patient's representative standpoint.
24 From the provider standpoint, and that's
25 the other side of the 1009 dispute, their
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1 claim has been denied and they want relief,
2 which is why they're requesting us to take a
3 look at it. Basically, what I just need to
4 see is good documentation to show why the
5 procedure or therapy or whatever they're
6 requesting meets the guidelines. As long as
7 those guidelines criteria are documented, then
8 that procedure is going to be approved.
9 If I deny a procedure, you can be assured
10 it's because it doesn't meet the guidelines.
11 And there are specific guidelines that apply
12 for a particular procedure, certain surgical
13 procedures, injections and so forth, certain
14 things have to be documented to say that
15 procedure meets the guidelines and it should
16 be approved. As long as that documentation is
17 there, then we can approve and override the
18 insurance company's denial.
19 In that case or in the case that I'm
20 going to say the insurance company was right,
21 which is less than a third of the time, based
22 on the numbers we've looked at, it's going to
23 be clearly stated in the denial letter that
24 comes from our office what was missing and why
25 that procedure does not meet the guidelines.
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1 So if therapy wasn't done or some other
2 criteria that hasn't been documented, that
3 provider or patient representative has the
4 option to go back and do that therapy or
5 document what wasn't there and file another
6 1010 and possibly get that procedure approved.
7 Yeah, the other thing is we -- I'm sorry.
8 JUDGE KELLAR:
9 Go ahead.
10 DR. PICARD:
11 There is some other things to add is we
12 do need adequate documentation. Sometimes we
13 get very little documentation to go by. You
14 can't just request a procedure and send me a
15 brief note saying, you know, I want this
16 procedure. There has to be adequate
17 documentation that therapy was done and other
18 things that are required as per the
19 guidelines.
20 Any specific questions regarding
21 guidelines of a dispute problem that anybody
22 would like to add?
23 DR. ZIMMERMAN:
24 I was told by the Assistant Attorney
25 General Green in the past that the 1010
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1 process is governed by a different standard
2 than the 1009 process. Is that accurate?
3 I was told that the 1010 process is
4 governed by medical necessity; whereas, the
5 1009 process is governed by guidelines. Is
6 that -- am I understanding that correctly?
7 JUDGE KELLAR:
8 Why don't we let Will Green clarify that
9 for us?
10 MR. GREEN:
11 Can you repeat the question? You know,
12 Dr. Zimmerman, we talked a lot and as you've
13 done today, yet separate conversations. And I
14 enjoyed every one of them. I learned some and
15 I think, hopefully, you did about the internal
16 process. And I think it's helped me in my new
17 role working for a self-insured fund.
18 But, boy, I don't -- the only thing,
19 again, I don't serve in that capacity and I
20 definitely don't give legal advice. And,
21 hopefully, I didn't back then. But the 1009
22 process from the 1008 is, you know, there's a
23 preponderance of evidence standard on
24 variances and things like that. And then,
25 there's a -- for the -- to overturn the
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1 Medical Director at the 1008 level, maybe
2 that's what I was referring to.
3 And I'll get -- since I don't serve in
4 that capacity, I don't necessarily feel
5 comfortable, but there is definitely different
6 standards depending on if it's a 1009 to a
7 1008 or a variance or not covered versus
8 something in the guidelines. And I know
9 there's different aspects to that, but I don't
10 remember anything about the 1010 and 1009.
11 JUDGE LUNDEEN:
12 May I?
13 JUDGE KELLAR:
14 Sure.
15 JUDGE LUNDEEN:
16 The medical treatment guidelines, and
17 I'll let the doctor address this in variances
18 because they're slightly different. But the
19 guidelines are the guidelines. They tell you
20 what you have to produce in order to meet the
21 guideline and to get the treatment approved.
22 That's the standard. When you come out of the
23 guideline process, when you are appealing the
24 1009 to the court by filing a 1008 form.
25 So you're not filing a lawsuit saying you
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1 don't like what the Medical Director said, the
2 burden is clear and convincing that the
3 Medical Director got it wrong and didn't
4 follow the guidelines. So that's the only
5 legal difference.
6 But the medical treatment guidelines
7 don't have different guidelines as written.
8 They are what they say they are. You have to
9 meet certain requirements in order to get your
10 medical care approved. And I'll let the
11 doctor address the requirements for variances.
12 They are different, but they are very
13 specific.
14 DR. ZIMMERMAN:
15 Before we get to that, is there a stip
16 for when carriers deny based on criteria other
17 than the guidelines?
18 JUDGE LUNDEEN:
19 No. That's one of the issues that we're
20 looking at is putting more teeth into this.
21 Certainly, you have the right to come to our
22 courts and we will determine whether or not
23 the carriers have done something in conformity
24 with -- or, actually, we don't look at that.
25 What we look at is what the Medical Director
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1 did. That's what we're bound by. That's what
2 the legislature told us were our rules in
3 determining whether or not we can overturn the
4 Medical Director's findings.
5 DR. ZIMMERMAN:
6 Give you a concrete example, Sedgewick
7 hires a --
8 JUDGE LUNDEEN:
9 And let me give you -- let me interrupt
10 you for a moment. We asked you to speak in
11 terms of hypothets. We ask you not to address
12 pending cases directly.
13 DR. ZIMMERMAN:
14 I'm not speaking of pending cases
15 directly.
16 JUDGE KELLAR:
17 Not even specific cases.
18 DR. ZIMMERMAN:
19 I'm -- I'm not speaking --
20 JUDGE KELLAR:
21 This is a hypothet; right?
22 DR. ZIMMERMAN:
23 This is hypothetically in the future, an
24 individual carrier who might or might not be
25 called Sedgewick, and hires an individual UR
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1 reviewer who might or might not be called
2 Saeed Hayek, who uses a criteria of, has the
3 patient returned to work or not. That is his
4 only criteria as to whether or not he will
5 approve care. He does that consistently. And
6 it's his only criteria on every case.
7 I would love to be able to say that he
8 should not be able to review for that carrier
9 before the 1010 process, but I can't. And I'd
10 love to be able to have the Committee allow
11 him to be excluded when he refuses to follow
12 the guidelines.
13 JUDGE LUNDEEN:
14 So we are -- Judge Laramore is going to
15 answer. Let me -- may I finish first?
16 JUDGE LARAMORE:
17 Yes.
18 JUDGE LUNDEEN:
19 The likelihood is that if the medical
20 treatment guidelines have been met when you
21 file your 1009, you're going to get that
22 medical care regardless of what this
23 particular examiner says.
24 DR. ZIMMERMAN:
25 Thirty days later.
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1 JUDGE LUNDEEN:
2 The second part is that your recourse
3 right now may not be under the medical
4 treatment guidelines, but a complaint might be
5 more appropriate to the Department of
6 Insurance. Or if we can help to educate a
7 carrier about the guidelines, if you want to
8 contact us, so that we can provide education
9 to people who are working with this within the
10 system, we are happy to do so.
11 And I'll turn it over to Judge Laramore.
12 DR. ZIMMERMAN:
13 Who would I contact? The director?
14 JUDGE LARAMORE:
15 No.
16 DR. ZIMMERMAN:
17 No? Okay.
18 JUDGE LARAMORE:
19 The insurance company and the employer
20 get the right to choose whoever they wish to
21 examine the patient periodically or to do
22 their UR or they can call on a genie. We
23 don't care. The employee, the claimant gets
24 the right to treat with whomever they wish.
25 You or somebody else can -- the insurance
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1 carrier may not like who he wants to treat.
2 It does not matter.
3 If they're using a UR person that you
4 don't like and you say it's going to be the
5 same thing every time, well, then it just is.
6 And you can treat it like a tacit denial and
7 shove it right on up the ladder to Dr. Picard
8 here and show that you've done the right thing
9 that you need to do. We don't want to get
10 into a situation where anybody's controlling
11 each side's right to the choice of physician
12 of their choice. That is not even a slippery
13 slope. That's a freaking cliff, okay. And we
14 don't want to go there.
15 JUDGE KELLAR:
16 Listen --
17 DR. ZIMMERMAN:
18 What --
19 JUDGE KELLAR:
20 Dr. Zimmerman?
21 DR. ZIMMERMAN:
22 -- about --
23 JUDGE KELLAR:
24 Listen.
25 DR. ZIMMERMAN:
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1 I --
2 JUDGE KELLAR:
3 Listen. And I think I already said that
4 there's a lot of gamesmanship in the system.
5 I don't know who this individual is and I
6 don't know if he's playing games or whatever.
7 But I do believe that if there is somewhere in
8 the system where an individual company or
9 individual is deliberately denying procedures
10 that are in the medical treatment guidelines
11 and you can show that it's a deliberate
12 misrepresentation, then I think there needs to
13 be some teeth in the guidelines. Because if
14 it's clearly in there, then the injured worker
15 is clearly entitled to it.
16 But we don't have anything in the rules
17 at the moment which says that if it's clearly
18 in there and he's clearly entitled to it and
19 the adjustor or payor or UR denies it, that
20 they should be assessed a penalty and attorney
21 fee. So I think that in some cases in the
22 medical treatment guidelines, we need some
23 stips. And they are not in there.
24 So I hear you. And we are addressing
25 those kinds of issues.
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1 DR. ZIMMERMAN:
2 Okay.
3 JUDGE KELLAR:
4 Thank you so much.
5 Anyone else?
6 Okay. Thank you guys so much for coming
7 this afternoon and telling us the challenges
8 and rewards of the medical treatment
9 guidelines. We've heard you. I've been all
10 around the state. This is the seventh and
11 final Town Hall Meeting. We are going to
12 consider your comments and try to incorporate
13 some of them into revisions of the rule.
14 And, Dr. Zimmerman, we are going to
15 consider a provider on that panel to redo the
16 rules. And, hopefully, these have been
17 beneficial to the extent that we are able to
18 make modifications that are going to make the
19 medical treatment guidelines more
20 user-friendly for you.
21 If you did not make a comment or ask a
22 question or suggestion that you wanted to, we
23 are still available to you. You can find each
24 of us on -- except Dr. Picard. Nobody can
25 talk to him. You can find all of us on the
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1 website Laworks.net under Workers'
2 Compensation. I'm Sheral Kellar, Judge
3 Lundeen, Judge Laramore, Denise Lee, Mediator,
4 Ms. Freda Chaucer in the Medical Services
5 Section. Thank you.
6 (WHEREUPON, THE MEETING ADJOURNED.)
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1 R E P O R T E R ' S C E R T I F I C A T E
2 I, KELLY S. PERRIN, a Certified Court
3 Reporter, Certificate #23035, in good standing with
4 the State of Louisiana, as the officer before whom
5 this meeting was taken, do hereby certify that the
6 foregoing 124 pages;
7 That this testimony was reported by me in
8 stenographic machine shorthand by Computer-Aided
9 Transcription, transcribed by me or under my
10 personal direction and supervision, and is a true
11 and correct transcript to the best of my ability
12 and understanding;
13 That the transcript has been prepared in
14 compliance with transcript format guidelines
15 required by statute or by rules of the board, that
16 I have acted in compliance with the prohibition on
17 contractual relationships, as defined by Louisiana
18 Code of Civil Procedure Article 1434 and in rules
19 and advisory opinions of the board; that I am not
20 of counsel nor related to any person participating
21 in this cause and am in no way interested in the
22 outcome of this event.
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1 This certification is valid only for a
2 transcript accompanied by my handwritten or digital
3 signature and the image of my State-authorized seal
4 on this page.
5 Signed:
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7 KELLY S. PERRIN,CCR
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