Florida Insurance Consumer Advocate Workers’ Comp Advisory Group Debates Medical Care Standards and Professional Employer Organizations’ Compliance

 

After an initial exploratory formative meeting, Florida’s Insurance Consumer Advocate Sean Shaw convened the Insurance Consumer Advocate Workers’ Compensation Advisory Group (“Advisory Group”) on February 25, 2010 in Orlando.  The agenda focused on issues relating to workers’ compensation medical care and professional employer organizations.

The Advisory Group comprises various stakeholders within the workers’ compensation industry.  Members present at the February 25 meeting included claimants’ and insurance defense attorneys, self-insured employers, a National Council on Compensation Insurance (“NCCI”) representative, a workers’ compensation judge, a workers’ compensation insurer and other workers’ compensation-related vendors.  The Advisory Group, which was convened by Mr. Shaw for the purpose of providing feedback on issues facing the workers’ compensation industry, is expected to generate ways in which the delivery and administration of benefits can be maximized.

The February 25 meeting began with a short presentation made by representatives of the Florida Division of Workers’ Compensation (“Division”), Bureau of Employee Assistance (“Bureau”) pertaining to the activities involved in surveying injured employees and assisting them with their workers’ compensation claims.

Last year, approximately 75,000 calls were made by the Bureau to injured workers and, depending upon the outcome of those calls, those workers were referred to various Bureau teams for follow-up.  The average date of contact is 19 days after the injury has occurred.

The Bureau has an ombudsman team that generally follows up with injured employees’ specific questions or issues.  Approximately 70 percent of issues generated from these calls relate to medical authorization referrals and, in many instances, involve communication issues with the employer or the compensation carrier. 

The Bureau contacts injured workers who have a lost time claim, as well as reviews the appropriateness of denials made by workers’ compensation carriers.  In the event of an issue, follow-up is done with the carriers. 

It was reported that, as of the date of contact by the Bureau, most injured employees were satisfied with the progress of their claim, overall.

A substantial amount of discussion ensued among the Advisory Group pertaining to the fact that contact with the injured employee during the early stages of the claims process most likely results in their favorable opinion.  It was recommended that follow-up contacts be made at intervals of 45, 60 and 90 days after the initiation of a claim in order to gauge claimant satisfaction with the process at that point.

While no definitive course of action was determined, it appeared from the discussion that the Bureau ultimately will implement a plan for 60-day follow-up contacts with claimants.

Of note, Bureau officials noted that they received many referrals from Florida’s Chief Financial Officer, as well as from individual state legislators. They also remarked that much of their work involves dealing with injured workers who have not (as of the date of contact) retained counsel to represent them in their claim.

The discussion transitioned to what are perceptions of the main causes of existing problems with Florida’s workers’ compensation system.

A claimants’ attorney representative offered that problems seem to arise when the injured worker does not feel like he or she is receiving adequate care. This can occur when the worker believes he or she is still impaired or injured, but the attending doctor indicates that maximum medical improvement has been reached.  In this scenario, the worker has a one-time opportunity to change physicians. Otherwise, there is no other choice of a physician, leading to further dissatisfaction by the injured worker.

The claimants’ attorney representative cited an example of a case involving a peer review disagreement among physicians which ultimately led to a nine-month delay in patient treatment.  He suggested that a requirement for quicker action for the resolution of treatment modality recommendations would be appropriate and could lead to a more positive outcome for patients.

Others members of the Advisory Board disputed this, saying that systems are in place to handle the great majority of cases, and that there will always be anecdotal exceptions.  Overall, it was agreed among other Advisory Board members that the system works very well, and that employers and carriers do have statutory deadlines within which to make decisions on certain medical treatment.  Subsequent statutory remedies are available for aggrieved employees to pursue their rights if employers or carriers are incorrect. 

Some Advisory Board members rebutted this, explaining that, in view of the exigencies involved in someone in need of medical care, the peer review process after a proposed treatment plan can cause further delays, inasmuch as no expedited dispute resolution process exists.

Many of the Advisory Board members agreed that a solid guideline should be established that is based on existing medical protocol implementing standards necessary to authorize further treatment.  The largest problem with issues pertaining to treatment usually arises in situations for which no objective evidence exists to support a diagnosis or a treatment plan. 

A claimants’ advocate Advisory Board member indicated that a breakdown in communication often occurs at the employer’s carrier level, which results in the creation of employee distrust.   Denial of a treatment plan should not be permitted if it is not based upon solid evidence, such as an independent medical examination or another examining doctor’s opinion.  According to the employee advocate, the employer/carrier often will deny a claim for medical treatment on a “hunch,” rather than solid evidence. This should not be allowed.

Some of the Advisory Board industry members indicated that decisions cannot be made based upon anecdotal cases, but should be made using solid statistical underpinnings.  In regard to every example given, it would be possible to find cases on both sides that would anecdotally support the position of either the employee or the employer.  Overall, the sentiment of these Advisory Board members was that the architecture of the workers’ compensation system in Florida should not be changed, but  rather, existing standards should be enforced.  It was reminded that workers’ compensation premiums in Florida have significantly declined since 2003 reforms.

These Advisory Board industry members felt that the current system, which has been in place since 2003, is much better than it has been in previous decades.  They also felt that most injured employees are very satisfied with their treatment under the system. 

One employer advocate indicated that no employer would want an employee to be out for a significant period of time without treatment.  In his opinion, the “anecdotal” case cited by the employee advocate was the exception, rather than the rule.

The employer advocate stressed that further study should be done as to why injured employees on workers’ compensation stay off the job longer than those individuals who are injured in other types of accidents, such as automobile accidents.

The Bureau representative indicated that the Division will be reviewing the processes utilized by carriers with regard to medical claims.   Penalties for willful and non-willful violations of this process will be issued as appropriate.  The Bureau is particularly interested in whether carriers are following the statutory requirements pertaining to medical authorization procedures.

The Advisory Board briefly discussed the issue of doctor choice and how many times an employee should be able to switch physicians during the course of workers’ compensation-related treatment.  Previously, an employee could choose from among three physicians designated by his or her employer.  Now, however, choice is restricted and an employee is often in a situation where he or she is being treated by a medical care provider with whom he or she disagrees.

The NCCI representative indicated that diminishing the choice of doctors for claimants has resulted in lower costs, less “doctor shopping” for a favorable opinion and less litigation.

An employer representative indicated that, even with employee choice, “it is often the doctor recommended by the employee’s lawyer, not the employee himself or herself, to which the employee will ultimately go.”  Thus, explained the employer representative, what exists is really not “employee choice” but rather the “employee’s lawyer’s choice.”

Professional employer organizations were next on the agenda.   A key concern raised in relation to this topic was the fact that, in many instances typically involving construction projects, all employees on a job site are not properly covered with workers’ compensation insurance.

This issue relates to others involving certain employees being excluded from coverage under professional employer organization contracts, or improper coverage being issued by carriers for general contractors.   Yet other scenarios involve improperly covered non-leased employees. 

A professional employer organization representative indicated that this is a compliance issue and not an issue with regard to statutory requirements.  Professional employer organizations need to properly audit their clients in order to assure that workers’ compensation coverage is being provided as required, the representative explained.

The Advisory Group concluded its meeting with a brief discussion on a proposal that the standards for evidence-based medicine should be shifted to result in a more of patient-centered outcome.  Effecting this change would involve a review of patient outcome data and a shift to authorizing procedures that follow the outcome data results more consistently. 

Ensuring that claimants are being referred to the appropriate provider also was discussed.  In many instances, providers will base their patient treatment on their own degree of professional expertise, even though a referral to a professional in another field of expertise would be more appropriate.  Ensuring patients are appropriately referred involves an acute sensitivity to medical specialties and the capabilities of the providers involved

In closing, Mr. Shaw assured that he and his staff will consider all of the comments generated at the meeting, followed by the scheduling of another Advisory Group meeting sometime after the end of 2010 Florida Legislative Session.