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An Interview With the Division of Workers' Compensation's New Top Brass

By Amy Lynn Sorrel, Associate Editor in Texas Medical Association

Just as the Texas Legislature and the state prepare for new leadership, the Division of Workers' Compensation (DWC) also gets new blood. Gov. Rick Perry appointed Ryan Brannan to the helm of the organization. His predecessor, Rod Bordelon, resigned in August.

Commissioner Brannan comes from the Governor's Office Division of Budget, Planning and Policy, where he served as an advisor and worked on a range of insurance-related issues. His goals to build on the efficiencies created by earlier workers' compensation (WC) system reforms also recognize that one of the best ways to get injured employees back to work is to "get physicians active and involved."

Executive Deputy Commissioner for Health Care Management Matthew Zurek joined the conversation with Texas Medicine magazine to explain how doctors can do that, and he talked about the various WC requirements, including recent legislative changes. He also previewed new educational and support tools the Texas Medical Association helped DWC develop. (See "Tools and Resources.")

Texas Medicine: How has your background prepared you for this role?

Commissioner Brannan: I went to law school and naively I thought I could come out and be a medical malpractice defense attorney — make both of my parents (a doctor and a lawyer) happy and be an attorney that represents doctors. Then I realized that field was drying up, due largely in part to the passage of tort reform (in 2003). But that's also how I got my job in the governor's office: I could talk about the positive effects of tort reform as a practitioner, as well as from a policy standpoint. [Since then] I worked on the loser-pays bill (a law that awards legal fees to prevailing parties in lawsuits). I spent the last five years doing insurance policy work both in and around the governor's office. That's what brought me here. I have a decade's worth of medical and insurance background, and I'm looking forward to getting going and working with this great staff here. 

Texas Medicine: What are your overarching goals as the new DWC commissioner?

Commissioner Brannan: First, it should be noted that the 2001 and 2005 [WC] reforms have been great for the system. Prior to that, we had escalating costs and some tort (legal) issues affecting the injured worker's ability to get adequate and good care. Rod Bordelon and Albert Betts before him have done a tremendous job of leading this organization and creating a WC system for the state of Texas. However, there is always room for improvement. I plan to focus more attention on workplace safety, injured employee education and outreach, streamlining dispute resolution processes, and increasing automation efforts at the agency to reduce paper and help stakeholders more efficiently interact with us.  

Texas Medicine: What did those reforms do?

Commissioner Brannan: We put in place a great administrative process here that kept a lot of the problems outside of the court system, which allows us to rein in costs. We've since gone on and done some other things, such as the formulary. (See "Closed Formulary, Part Two," February 2013 Texas Medicine, pages 41-47.) Because of that regulatory stability, you can keep costs under control and you can get injured workers back to work, which is where I see the agency needing to move: making sure we get fewer injuries, and when we do, getting those employees back to work. The best way to do that is through fee guidelines and other things that get physicians active and involved where they want to help and they want to get into the system and provide adequate and good care so we can get these workers back to their jobs, which is the ultimate goal.

Texas Medicine: Describe the worker safety initiative you're trying to launch.

Commissioner Brannan: The Texas economy is booming. If you take out Texas, we've had a net job loss in the United States over the last several years. So many of the new jobs created are here in Texas. We want to make sure that with all the new workers, we are also putting the same investment into their safety. One of the best ways for our system to work is to not have disputable claims, which means fewer injuries and fewer fatalities. Texas had the most fatalities again in the workplace, with 493 deaths in 2013. So if we can have safer workplaces, the injuries that do come in are treatable, rather than fatal. And we can hopefully have a more efficient and streamlined process, which would be great. So we are trying to do a few things: We are trying to promote good behavior among employers and kick in a financial piece if we can. We'll have to see what the appetite of the legislature is, but anything we can do to make the system more efficient is a good thing. 

Texas Medicine: How would you describe overall physician participation?   

Commissioner Brannan: Access to care is extremely important for the system to work. We are very happy with the number of physicians interested in doing it. The number of active physicians has increased by approximately 7,000 since 2005. The number of physicians participating in workers' compensation (roughly 18,000) has remained relatively stable since 2005, while the number of injuries per year has decreased. While we do understand there are significant numbers of active Texas physicians who have few opportunities to participate in WC depending on specialty, we do recognize there are physicians out there who are willing to participate in the system, and we are trying to grow that. There are specific instances where we could use a little more help in rural versus urban areas, for example, and in particular specialties. So we are going to keep looking for ways to increase physician involvement in the system. 

Texas Medicine: How is the new closed formulary working?   

Commissioner Brannan: It has changed physician prescription patterns, for sure. We think it's been successful. We've had other states ask us about it, and we are seeing it become a model for other states. We worked closely with TMA and the Texas Pain Society on the implementation of the closed formulary, and we still provide educational sessions for physicians. The closed formulary allows for all FDA-approved drugs to be prescribed to injured employees, with approximately 150 drugs — typically second- and third-line medications — requiring preauthorization prior to prescribing. The vast majority of prescriptions are filled and dispensed without any extra effort on the part of the physician or injured employee. In fact, additionally, the Workers' Comp Research and Evaluation Group, which is an internal part of the Texas Department of Insurance (TDI), is still doing research and analysis on this issue and posting that on our website. There's more information there specifically about the effects of the closed formulary.  

Texas Medicine: Are there any upcoming changes you anticipate that could impact the WC program?   

Commissioner Brannan: The two main things coming down are the federal move to the ICD-10 diagnosis codes, which we are going to implement next year. Again, part of the streamlining and efficiency we are trying to create here is matching what the feds are doing so we can decrease the amount of angst and anxiety that goes into the system for physicians. The other major thing coming is the legislative session next year. In the Senate, we lost Chair Robert Duncan (R-Lubbock), who's leaving to go to Texas Tech University to be their chancellor. He was the chair of the Senate [State Affairs] Committee where all of our bills went and was very knowledgeable. His loss, coupled with eight new members we are going to have [in the Senate], means we are going to have to do a lot of educating on the system and how it works and how it can be better.

Texas Medicine: Are there any specific legislative efforts percolating?   

Commissioner Brannan: Nothing that will affect the system terribly. There won't be any major changes. There may be some tweaks around the edges. We'll have to see what's coming.

Texas Medicine: How can physicians participate in WC? What is payment like?   

 Mr. Zurek: There are three primary roles physicians can play: treating doctor, referral doctor, and designated doctor. (See "Getting in the Door.")

[Following legislative reforms] in 2002, the division adopted the first professional medical fee guideline under the Centers for Medicare & Medicaid Services (CMS) system. The division didn't adopt Medicare payment but adopted Medicare payment policies, weights, and measures. In 2008, the division revised the 2002 professional fee guideline rules. We eliminated [the Medicare-based conversion factor] and made it a Texas-specific conversion factor, primarily because, at the federal level — and most physicians understand this — the [Medicare] conversion factor goes up and down and creates all sorts of payment inconsistencies. There was an outcry from TMA and other physician organizations within Texas that they needed some consistency. So the division created its own conversion factor through rulemaking and made it more stable. That conversion factor is adjusted annually based on the Medicare Economic Index. The rate of change has been approximately 1 percent per year since 2009. Currently for [treating] physician services, the WC system reimbursement rate equates to about 156 percent of Medicare. For surgical services provided in a facility or a hospital, it's approximately 195 percent of Medicare. Designated doctors are paid under a division-specific fee schedule, based on the complexity and intensity of the injured employee's examination.

Texas Medicine: What changes did House Bill 2605 make to the designated doctor program?   

Mr. Zurek: In 2011, through the division's sunset bill, House Bill 2605, there were changes that defined that a designated doctor would be selected based on the injured employee's diagnosis and body part. Prior to that, it was based on the treatment the employee was receiving. These reforms allowed chiropractors to come into the system. They are considered doctors in the WC system. When you look at the definition of the term "doctor" in the Labor Code, it includes doctors of medicine, doctors of osteopathic medicine, and chiropractors. The division started seeing more chiropractors entering into the system to be able to provide designated doctor services.

Texas Medicine: When you determine the injured body part and whether a chiropractor or a physician is assigned to that case, do you take scope of practice into consideration?   

Mr. Zurek: The division expects all health care practitioners to practice within the scope of their [respective] licensing boards. When our rules went into effect, through our work with TMA and other medical associations, we devised a process where injury claims are divided into eight particular categories. Of those categories, there are four areas where chiropractors can provide an examination. They are specific musculoskeletal areas. Physicians can provide services in all eight of the categories, with one category based on specific specialty areas requiring board certification.

Texas Medicine: Since HB 2605, some of our members who are designated doctors have noticed a decrease in case assignments, and they are concerned it may not be worthwhile to continue in the program. At the same time, it seems physician participation has slightly declined. Have the changes affected physician participation?

Mr. Zurek: Potentially. I think there are a number of things going on. You have the decrease in the number of injured employees, a broadening of who can participate, and a few physicians who were heavily involved in designated doctor services have left for other reasons.

It really goes back to how the system works. We've had a diminishing number of injuries and claims over time. So the system is healthy. And with fewer injuries coming into the system, you have a pool of designated doctors who are sharing those fewer claims.

The other thing that happens is, as physicians choose to become designated doctors, one of the things they choose is which categories of examinations they want to provide, determining what kind of injured employees they would see, and localities where the examination will take place. The doctor has the ability to choose up to 50 locations. The major metropolitan areas are where the majority of designated doctor appointments occur and where the majority of designated doctors reside.

The other side of the coin is, there were physicians who previously would request multiple designated doctor examination locations. However, because they were working a full schedule in their office, when they would get five appointments it would take a whole day away from their office, and they were really looking for one or two appointments at a time. So we've heard from both sides of the fence: too many and it was great, but in other situations it was too much of a burden. And there are still physicians for whom their main source of practice of medicine is doing designated doctor, and the response we get from some of those physicians is they are still capable of continuing on in that practice. So the division is looking deeper into potential solutions for providing a scheduling process based on physician volume preference.

Texas Medicine: What are some of the administrative requirements unique to WC?

Mr. Zurek: The practice of medicine in WC is really no different than the practice of medicine in any other payer class. The thing that makes WC unique is the insurance carrier is paying for a compensable injury — the injury that employee sustained during the course of employment — which is different from group health, which covers the body. So that creates some variances administratively.

The division has treatment guidelines that were put into effect in 2007, and they give physicians guidance in terms of what the evidence says about particular treatments and services. Also in 2007, we adopted rules that provided return-to-work guidelines, so another administrative process physicians have to partake in is determining the injured employee's work status. Another form is a report of medical status that basically documents if an injured employee is at maximum medical improvement and, if so, reports any permanent impairment.

Preauthorization is required in certain situations within WC. The 2005 reforms required the division to adopt treatment guidelines and protocols that are evidence-based, scientifically valid, and outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. There are specific treatments and services that require preauthorization based on legislative or rule requirements. The division's adopted treatment guidelines provide an overview of how to document and support the need for these types of treatment and services.

Texas Medicine: The 2013 Texas Legislature ordered TDI to develop a standardized preauthorization form each for medical services and prescriptions for public and private insurers to use. Is WC included in that mandate?

Mr. Zurek: Workers' comp was specifically excluded statutorily. If that changed, we would respond. But at this time, we are not participating in it.

Amy Lynn Sorrel can be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by email.  

 SIDEBAR

Tools and Resources  

The Division of Workers' Compensation provides educational support for physicians and their staff and has worked with TMA to assemble additional resources coming soon.

The Comp Connection for Health Care Providers hotline can answer questions on treatment guidelines, billing, forms, and certification — anything outside of payment and coding. Call (800) 372-7713 Monday through Friday from 8 am to 5 pm, or visit http://bit.ly/brannan2.

Workers Comp 101 is a traveling seminar the division offers annually throughout the year at various locations throughout the state. The six-hour class guides physicians and staff through the nuts and bolts of the workers' compensation system.

In-office consultations are available upon request. Seasoned division staff visit you to answer your administrative questions, help ready your office to care for injured workers, and connect you with peers who have gone through the process. For more information, contact Mary Landrum, director of health care management, at (512) 804-4814.

Elizabeth Custy