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Adopted Rules

1.  INTRODUCTION.  The Commissioner of the Division of Workers’ Compensation (Division), Texas Department of Insurance, adopts new §§137.1, 137.10, 137.100 and 137.300 concerning disability management including return to work, treatment guidelines, and treatment planning.  The sections are adopted with changes to the proposed text as published in the September 1, 2006 issue of the Texas Register (31 TexReg 7090).

2.  REASONED JUSTIFICATION.  The new sections, as well as chapter and subchapter title changes, are necessary to implement changes as a result of House Bill (HB) 7, enacted by the 79th Legislature, Regular Session.  Sections 137.1, 137.10, 137.100, and 137.300, are necessary to implement HB 7 amendments to Labor Code §413.011 that require the Commissioner of Workers’ Compensation (Commissioner) to adopt by rule treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care.  The purpose of the treatment guidelines is to ensure the quality of medical care and to achieve effective medical cost control.  HB 7 also amended Labor Code §413.011 to require the Commissioner to adopt by rule return to work guidelines for the purpose of enhancing timely and appropriate return to work.  HB 7 further amended Labor Code §413.018 to require the Commissioner by rule to provide for the periodic review of medical care provided in claims in which guidelines for expected or average return to work time frames are exceeded.  The Commissioner also adopts the new titles of Chapter 137 and Subchapter B.

The Division posted an informal draft of the new sections relating to disability management on February 17, 2006, and invited public input, which included a stakeholder meeting on March 22, 2006.  Prior to proposal, the Division considered the merits of various published return to work guidelines and treatment guidelines.  Several stakeholder and work group meetings were held to discuss the disability management concept and rules related to guidelines.  Meetings were also held with nationally recognized guideline publishers.  During a March 23, 2006 meeting, representatives of the various guidelines made presentations to Division staff and workers’ compensation system stakeholders regarding the development and use of their individual guidelines.  The Division reviewed and evaluated these guidelines, received stakeholder input, and considered the recommendations of the Division’s Medical Advisor and the former Texas Workers’ Compensation Commission Medical Advisory Committee’s Return to Work workgroup.  Based on this review and input, the Division made the selection of the most current edition of The Medical Disability Advisor, Workplace Guidelines for Disability Duration (MDA), as the Division return to work guideline, and the most current edition of the Official Disability Guidelines-Treatment in WorkersComp (ODG), published by Work Loss Data Institute (WLDI), as Division treatment guidelines.

All system participants benefit from the adopted disability management rules because this chapter establishes a framework to foster, facilitate, and improve communications among injured employees, health care providers, employers, insurance carriers, and the Division by establishing treatment guidelines, planning benchmarks, and return to work goals and time frames.  Disability management is a process designed to optimize health care and return to work outcomes for injured employees in an effort to avoid delayed recovery.  The adoption of the disability management tools establish defined expectations for system participants.  Clarity for system participants should result in fewer disputes and less intervention by the Division.

The MDA provides a basis for health care providers, insurance carriers, injured employees, employers, and the Division to objectively establish or develop return to work goals or a return to work plan, based on guideline established expectancies for disability duration, that include expected return to work time frames for the timely, safe and medically appropriate return of injured employees to productive work.  Return to work guidelines establish a framework to foster, facilitate and improve communications among injured employees, health care providers, employers, insurance carriers and the Division regarding return to work goals, expected return to work time frames and proposed job duty and activity modifications.  Such communication is essential in returning injured employees to safe, medically appropriate and productive work.

The MDA provides reviewed and updated content.  This publication provides disability duration estimates for normal recovery periods, and natural language descriptions of the most common illnesses and injuries of working people.  In addition, MDA includes detail on co-morbidities to modify normal recovery periods.  Features include:  alphabetical listings of diagnoses and procedures; an alphabetical index; a medical code index; a glossary of terms; a section regarding management of medical absences; and diagnosis and procedure topics.

During the time between publication of editions, Reed Group, the publisher, collects information from the users of the MDA to improve and refine the guidelines.  This development process includes data collection, topic identification, research and analysis of duration data and development of draft duration tables and manuscripts.  The Reed Group’s Medical Advisory Board’s review and input regarding draft manuscripts is consolidated for publication of the final manuscript.

In evaluating the MDA guideline, the Division considered that the disability duration guidelines published by Reed Group are based on statistical analyses of actual outcome data.  The MDA guidelines also integrate clinical judgment and experience, and clinical assessment of the minimum, optimum, and maximum expectancies of disability duration as the most constant variable in predicting a length of disability.  In developing the new edition of the MDA, the statistical data used was derived from an additional 1.65 million new disability cases between the years 2001 and 2003.

The Division treatment guidelines outline the frequency and extent of services presumed to be medically necessary and appropriate for a compensable injury.  The ODG meets the provisions outlined in Labor Code §413.011(e) that require Division treatment guidelines to be evidence-based, scientifically valid and outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care.  

The ODG guidelines are evidence-based.  Labor Code §401.011 (18-a) defines “evidence-based medicine” to mean “the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.”  The RAND Institute defined evidence-based and peer-reviewed  to mean, at a minimum, a systematic review of literature published in medical journals included in the National Library of Medicine's MEDLINE.  RAND, INSTITUTE FOR CIVIL JUSTICE and RAND HEALTH, Evaluating Medical Treatment Guideline Sets for Injured Workers in California xvi-xviii (2005), available at www.rand.org (RAND, Evaluating Medical Treatment Guideline Sets for Injured Workers in California)Finding that systematic reviews of the literature are standard and essential features of an evidence-based guideline development process, RAND determined that ODG was evidence-based and peer-reviewed, criteria for inclusion in the RAND study of treatment guidelines. 

The ODG evidence-based guidelines are linked directly to the evidence in the studies and references relevant to the specific treatment conclusion.  The publication incorporates abstracts of studies with appropriate references and citations to the complete original research.  This evidence is continuously updated by integrating the findings of new studies as they are conducted and released.  The ODG treatment guidelines are well known throughout the health care and insurance industries and meet the criteria for inclusion in the National Guideline Clearinghouse (NGC) maintained by the Agency for Healthcare Research and Quality (AHRQ), U.S. Department of Health and Human Services. NGC requires a clinical practice guideline to meet the criteria for inclusion provided at www.guideline.gov/about/inclusion.aspx.  For instance, the clinical practice guideline must contain systemically developed statements that include recommendations, strategies, or information that assists physicians, other health care practitioners, and patients in making decisions about appropriate health care for specific clinical circumstances.  A clinical practice guideline must have been produced under the auspices of medical specialty associations, relevant professional societies, public or private organizations, government agencies at the Federal, State, or local level, or health care organizations.  A clinical practice guideline developed and issued by an individual not officially sponsored or supported by one of the above types of organizations does not meet the inclusion criteria for NGC.  Corroborating documentation must have been produced and verified that a systematic literature search and review of existing scientific evidence published in peer reviewed journals was performed during the guideline development.  A guideline will be included in NGC if corroborating documentation can be produced and verified detailing specific gaps in scientific evidence for some of the guideline’s recommendations.  Additional requirements for NGC inclusion are that the full text of the guideline must be available upon request in print or electronic format, in the English language, and the guideline must be current and the most recent version produced.

The ODG is comprehensive. Based on representations by WLDI, ODG covers conditions that represent over 99% of workers’ compensation costs.  The ODG allows health care providers and insurance carriers access to treatment information in one comprehensive and consistently organized source.  This comprehensive approach enhances the usability of the guidelines and facilitates a consistent application of the guidelines in claims management systems and utilization review processes.

ODG contains prescreened links on their website to treatment resources concerning many workers’ compensation conditions.  The links are followed by a short description or excerpt from each of the website’s contents, which will allow health care providers to quickly provide injured employees with personalized, patient-friendly information pertaining to recovery by printing the most relevant pages.  This offers the patient information describing the injury, self-help methods for speeding recovery and suggested therapies for regaining functionality and productivity.

The ODG guidelines are scientifically valid.  ODG follows the steps integral to the process of creating evidence-based treatment guidelines.  WLDI describes its methodology for formulating the ODG treatment guidelines in the Work Loss Data Institute, ODG Methodology Outline at www.odg-disability.com/methodology_outline.pdfODG includes a detailed document entitled Appendix, ODG Treatment in Workers’ Comp, Methodology Description Using the AGREE Instrument, 1571-1582 (2006).  This Appendix provides an extensive explanation of how ODG Treatment meets each of the 23 criteria established by the AGREE instrument, including the quality domain describing the rigorous means of developing guidelines.  The AGREE instrument is an appraisal instrument used to evaluate treatment guidelines after they have been developed.  (RAND, Evaluating Medical Treatment Guideline Sets for Injured Workers in California, p. 29).  The RAND study determined that ODG, and the other four guidelines studied, scored high in the rigor of development domain by clearly describing the methods used to search for evidence and formulate recommendations.  (RAND, Evaluating Medical Treatment Guideline Sets for Injured Workers in California p. 32).

The ODG guidelines are outcome-focused.  The information in ODG is a compilation of the current medical evidence that reflects the outcomes of new studies and clinical trials.  This data is integrated into the guidelines to reflect advances in medical technology, drug therapies, or alternative medicine techniques.  Application of this information in a clinical setting has a positive impact in shaping injured employee return to work outcomes.  The ODG Foreword notes that studies included in the ODG are focused on determining what is best for the injured employee.  Additionally, the ODG Foreword reports the results of a study conducted in Ohio by CompManagement, Inc.  The pilot study found that “following adoption of ODG statewide, results at CompManagement demonstrate[d] savings in medical costs of 64 percent, in lost days of 69 percent, and minimized treatment delays.” 

Further, the ODG guidelines are designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care by providing clear data on optimum frequency and duration of treatments.  The ODG treatment guidelines explain that claims should ideally be managed based on the details of the case using the “Procedure Summary.”  The ODG Procedure Summary includes possible therapies and diagnostic methods, and provides a summary and reference to the most recent medical evidence with an indication of whether the procedure is recommended, not recommended, or under study.   Within a Procedure Summary, ODG provides guidelines for instruction that include specific utilization review criteria often presented in an algorithmic format.  Quality and timely care in workers’ compensation cases have become synonymous with overall cost containment.  The level of cost containment is directly proportional to the degree of over-utilization of medical treatment currently experienced within the system.  Therefore, ODG satisfies the statutory requirement for adoption of treatment guidelines in the State of Texas.

Treatment planning promotes appropriate management of work-related injuries or conditions by the treating doctor.  The treating doctor assumes an essential role in the coordination of care on behalf of an injured employee.  In accordance with Labor Code §408.023(l)  and §408.025(c), the responsibility of a treating doctor to effectively manage and maintain efficient utilization of health care is fulfilled through the process of treatment planning.  Treatment planning fosters a framework for the treating doctor to facilitate and improve communications among injured employees, health care providers, employers, insurance carriers, and the Division.  The Division expects the treatment planning process to lead to consensus between the treating doctor and insurance carrier regarding health care to be provided.  In a situation where the referral doctor becomes primarily responsible for the employee’s health care for a work-related injury, the injured employee may complete and submit a change of doctor form to the Division requesting that the referral doctor become the treating doctor in accordance with Labor Code §408.022, and §§126.9 (relating to Choice of Treating Doctor and Liability for Payment) and 180.22 (relating to Health Care Provider Roles and Responsibilities).  If the referral doctor agrees to become the treating doctor and the Division grants the employee’s request to change treating doctors, the “new” treating doctor will assume the responsibility of treatment planning. 

Following publication of the proposed new sections in the Texas Register on September 1, 2006, the Division held a public hearing on October 5, 2006, and received comments suggesting changes to the sections as published.  In response to comments made at the hearing and written comments from interested parties, the Commissioner is adopting these sections with some changes to the proposal as published.  Throughout the adopted sections, the Division has made editorial and grammatical changes for clarity.  The adopted sections should be read in conjunction with Labor Code §§413.011 and 413.018, and other statutes and sections as applicable.

§137.1.   In subsection (a), as a result of commenters questioning whether the proposed rules apply to every claimant or only when there is a finding that the injured employee is at risk for delayed recovery, the Division deleted the proposed term at risk for and substituted the phrase to avoid to indicate that all injured employees not subject to a certified workers’ compensation network are included in the disability management concept in order to avoid delayed recovery.  In subsection (d), in response to a few comments to include provisions of §133.308 (relating to Medical Dispute Resolution by an Independent Review Organization) the Division deleted language regarding scientific medical evidence and the submission of documentation for dispute resolution as those criteria would be duplicative of the requirements of §133.308.

§137.10.  In subsection (a), in response to a comment to clarify that system participants should not reference the treatment information in the MDA, the Division added the phrase “excluding all sections and tables relating to rehabilitation, (MDA), published by the Reed Group, Ltd.,” to clarify that the use of the MDA is limited to the disability duration values as guidelines for the evaluation of expected return to work time frames.  In subsection (e), in response to comments questioning the potential use of MDA to reduce or deny benefits, the Division changed the language to indicate that, in accordance with Labor Code §409.022, Division return to work guidelines may not be used as the sole justification or the only reasonable grounds for reducing, denying, suspending, or terminating income benefits to an injured employee.  In subsection (f), in response to a comment questioning the standard for evidence-based medicine in establishing disability durations for diagnoses not included in the guidelines, the Division added language to clarify that for diagnoses or injuries not addressed by the Division return to work guidelines, system participants shall apply the principles of evidence-based medicine to establish disability duration parameters and return to work goals.  In subsection (g), in response to a comment requesting sufficient time to implement necessary system changes, the Division added an effective date of May 1, 2007, for consistency with §§137.100 and 137.300.

§137.100.  In subsection (a), in response to a comment requesting clarification to exclude ODG return to work references when using the ODG treatment guidelines, the Division added language to indicate exclusion of the ODG return to work pathways.  In subsections (a), (d), and (f), in response to comments requesting clarification of the relationship between treatment guidelines, treatment planning, and preauthorization, the Division added language to clarify that treatments or services may be provided if preauthorized in accordance with §134.600 (relating to Preauthorization, Concurrent Review, and Voluntary Certification of Health Care) or §137.300.  In response to comments requesting the deletion of proposed subsection (d) which provided for preauthorization requests for care within the guidelines, the Division removed the permissive language and re-numbered the subsections.  In subsection (f), in response to comments requesting clarification of the relationship between treatment guidelines, treatment planning, and preauthorization, the Division revised the subsection to clarify the treatment planning process.  In subsection (h), in response to comments requesting a sufficient time frame for the effective date of implementation, the Division changed the date of the applicability of this rule to May 1, 2007. 

§137.300.  In response to many comments concerning treatment planning, the Division added the term Required  prior to Treatment Planning in the section title to duplicate terminology used in §134.600.  In subsection (a), in response to a comment recommending a substitution of the term reasonably for all, the Division added reasonably prior to the term all.  In the same subsection, in response to comments questioning the duration of a treatment plan, the Division deleted the phrase specified period of time and added language clarifying that treatment plans shall include treatments and services for a minimum of 30 days.  

In response to commenters’ concern regarding when treatment plans are required, the Division added language in subsection (a)(1) establishing that treatments and services anticipated to exceed or not included in Division treatment guidelines or Division treatment protocols will require treatment planning if the treatment or service will be provided after the greater of: (A) 60 days from the date of injury; or (B) the optimum days listed in §137.10 of this title (related to Return to Work Guidelines).  In subsection (a)(2), the Division added the phrase or Division protocols after the term Division treatment guidelines.  Also in subsection (a)(2), in response to a comment recommending the deletion of the reference to return to work guidelines since the lack of a diagnosis being included in the Division’s return to work guidelines is not relevant when addressing the appropriateness and medical necessity of health care in the Texas Workers’ compensation system, the Division deleted the phrase or Division return to work guidelines.  In subsection (b), in response to requests from commenters for the removal of permissive language allowing preauthorization requests through treatment planning for care that is within the treatment guidelines, the Division deleted the phrases treating doctor may submit a treatment plan and to the insurance carrier for approval.  In the same subsection, the Division added the phrases a treatment plan is not required and unless the treatments or services are submitted as part of a treatment plan in accordance with subsection (a) of this section to clarify that a treatment plan for care within the guidelines is not required unless the treatments or services are submitted as part of a comprehensive treatment plan to indicate all of the care the injured employee will receive.  In response to comments requesting clarification about treatments and services on the preauthorization list versus treatment planning, the Division added language in subsection (c) to clarify that specific treatments and services listed in §134.600 may be submitted for preauthorization through a health care provider by following the requirements of §134.600.  However, subsection (c) clarifies that even if a treatment or service is on the preauthorization list in §134.600, a health care provider must coordinate with the treating doctor to submit a treatment plan if any of the requirements of §137.300(a) apply.  In subsection (d), in response to comments concerning the responsibilities of treating doctors and health care providers in the treatment planning process, the Division added the phrase and identifies services that require a treatment plan pursuant to subsection (a) of this section, the health care provider shall confer with the treating doctor to develop the required treatment plan in accordance with subsection (a) of this section, and removed the phrase the health care provider shall submit the treatment plan to the treating doctor for submission to the insurance carrier.  In accordance with Labor Code §§401.011(42), 408.021(c), 408.023(j), and 408.025(c), and in response to comments regarding the responsibilities of a treating doctor in the treatment planning process, the Division added new subsections (e) and (f) to clarify that the treating doctor serves as the focal point for health care provided to an injured employee by health care providers that are not the treating doctors.  Subsection (e) provides that the treating doctor shall confer with the health care providers, insurance carriers, employers, or injured employees as necessary to develop the treatment plan.  The treatment plan is required to include the identity and contact information of the health care providers involved in the delivery of health care proposed in the treatment plan.  Subsection (f) states that the treating doctor shall inform the parties identified in subsection (e) of the approval or denial of the treatment plan.  In subsection (g), in response to comments requesting a sufficient time frame for the effective date of implementation, the Division changed the date of the applicability of this rule to May 1, 2007.

3.  HOW THE SECTIONS WILL FUNCTION.    The title of Chapter 137 is changed to “Disability Management” to better encompass all of the adopted subchapters and rules, in addition to future rulemaking initiatives under the umbrella of the disability management philosophy.  In addition, the title of Subchapter B is changed to  “Return to Work” to broaden the scope of the rules contained in this subchapter.  Chapter 137 is divided into four subchapters: General Provisions; Return to Work; Treatment Guidelines; and Treatment Planning.

Section 137.1 describes disability management as a process designed to optimize health care and return to work outcomes for injured employees to avoid  delayed recovery in the Texas workers’ compensation system.  This section explains how disability management tools should be applied in the workers’ compensation system.  This section also addresses the relationship between these tools and other utilization review or adjudication processes.

Section 137.10 identifies the most current edition of The Medical Disability Advisor, Workplace Guidelines for Disability Duration (MDA), excluding all sections and tables relating to rehabilitation, as the Division return to work guidelines for the evaluation of expected or average return to work time frames.  The section provides information on how to obtain a copy of the return to work guidelines.  The section provides that the Division return to work guidelines are presumed to be a reasonable length of disability duration.  The section specifies the use of the return to work guidelines by health care providers, insurance carriers, injured employees, and employers.  The section permits the consideration of co-morbid conditions, medical complications, or other factors that may influence medical recoveries and disability durations as mitigating circumstances when establishing return to work goals or revising expected return to work durations and goals.  The section states that disability durations in the guidelines are not absolute values and do not represent specific periods of time at which an injured employee must return to work; instead, the values represent points in time at which additional evaluation may occur if an injured employee has not experienced a full medical recovery and returned to work.  The section establishes that for all diagnoses and injuries not addressed by the Division return to work guidelines, system participants are required to establish disability duration parameters in accordance with the principles of evidence-based medicine.  Further, the section prohibits an insurance carrier from using the return to work guidelines as the sole justification or the only reasonable grounds for reducing, denying, suspending, or terminating income benefits to an injured employee.  This section is effective on or after May 1, 2007.

Section 137.100 identifies the most current edition of the Official Disability Guidelines – Treatment in Workers’ Comp (ODG), published by Work Loss Data Institute, as Division treatment guidelines, with the exclusion of the return to work pathways.  The section requires health care providers to provide treatment in accordance with the Division treatment guidelines unless the treatment or service requires preauthorization in accordance with §134.600 or §137.300.  The section provides information on how to obtain a copy of the Division treatment guidelines.  The section provides that health care provided in accordance with the Division treatment guidelines is presumed reasonable and is also presumed to be health care reasonably required.  The section also establishes that for health care not provided in accordance with the Division treatment guidelines, an insurance carrier is only liable for the costs of those treatments or services when provided in a medical emergency or if the treatments and services were preauthorized in accordance with §§134.600 or 137.300.  The section allows the insurance carrier to retrospectively review health care provided within the Division treatment guidelines, and if appropriate, deny payment when the insurance carrier asserts that health care provided was not reasonably required.  The section further requires an insurance carrier to support its assertion with documentation of evidence-based medicine that outweighs the presumption of reasonableness established by Labor Code §413.017.  Section 137.100 informs health care providers that preauthorization in accordance with §134.600 or submission of a treatment plan in accordance with §137.300 may be required when proposed treatments and services exceed, or are not included, in the treatment guidelines.  The section prohibits an insurance carrier from denying treatment solely because the diagnosis or treatment is not specifically addressed by the Division treatment guidelines or Division treatment protocols.  The section applies to health care provided on or after May 1, 2007.

Section 137.300 requires treatment planning for certain circumstances.  The section requires the identification of all reasonably anticipated health care treatment and services to be provided to the injured employee for a minimum of 30 days in a treatment plan.  The section provides that treatment plans remain consistent with the principles of evidence-based medicine and health care reasonably required.  The section further provides that when a treatment plan is required, a treating doctor shall submit the treatment plan for preauthorization.  Section 137.300 states that when a health care provider identifies treatments and services that require preauthorization in accordance with §134.600, the treatments and services may be submitted for preauthorization by a health care provider in accordance with §134.600 unless the health care is submitted as part of a treatment plan in accordance with §137.300(a). Therefore, specific treatments and services listed in §134.600 may be submitted for preauthorization through a health care provider by following the requirements of §134.600.  However, the section provides that even if a treatment or service is on the preauthorization list in §134.600 a treatment plan is required if any of the criteria of §137.300(a) apply.  The section provides that a treating doctor shall submit a treatment plan to the insurance carrier for preauthorization.  The section specifies that if the health care provider is not the treating doctor and identifies services that require a treatment plan, the health care provider shall confer with the treating doctor to develop the required treatment plan.   Section 137.300 provides that the treating doctor shall confer with the health care providers, insurance carriers, employers, or injured employees, as necessary to develop the treatment plan with the identity and contact information of the health care providers involved in the delivery of care proposed in the treatment plan.   The section requires the treating doctor to inform the health care providers of the approval or denial of the treatment plan.  Section 137.300 applies to health care provided on or after May 1, 2007.

These adopted sections do not apply to networks certified under Insurance Code Chapter 1305 pursuant to Labor Code §413.011(g) or political subdivisions with contractual relationships under Labor Code §504.053(b)(2).

4. SUMMARY OF COMMENTS AND AGENCY’S RESPONSE TO COMMENTS. 

§134.650Commenters recommend the simultaneous repeal of rule 134.650, as that rule undermines the effectiveness of the disability management process, utility of the treatment guidelines, and increase in medical costs to the system.

Agency Response:  The Division disagrees that the simultaneous repeal of §134.650 is required at this time, and may consider this recommendation at a time after the implementation of treatment and return to work guidelines.

General:  Commenter states that the success of the Division’s ability to bring doctors back into the system is dependent on the treatment of legitimately injured employees within reasonable time frames, without hassles, as opposed to no treatment at all.

Agency Response:  Based on numerous stakeholder meetings the Division understands that there are many factors that impact the willingness of health care providers to practice in the workers’ compensation system.  Administrative burdens are of particular importance.  The Division’s position is that implementation of the disability management rules and concept will provide a framework to improve treatment and return to work outcomes for injured employees.  Administrative burdens should ultimately decrease through the consistent application of these tools.

General: Commenter encourages the Division to consider comments received on proposed rules in order to remove barriers to reimbursement for physicians.

Agency Response:  The Division appreciates all commenters’ recommendations and changes are made from proposal based on comments received.  The Division anticipates these rules will facilitate system operations and bring more certainty to the medical billing and reimbursement process.

General:  Commenters support the adoption of return to work guidelines and in general support the concept of treatment guidelines and treatment planning.  These rules should result in increased communication among system participants and improved return to work outcomes for injured employees.  Another commenter states the proposed rules should contribute positively to the effective and efficient treatment of injured employees, reduce treatment and return to work disputes, and help foster prompt and appropriate return to work.  A commenter specifically supports the goals and aims of the proposed rules.  By emphasizing evidence-based guidelines, outcomes for all system participants can be optimized.

Agency Response:  The Division appreciates the support.

 General:  Commenter recommends that treatment guidelines be implemented appropriately and used to improve health care delivery, and not be used improperly as a standard of care, or by agents to deny medically necessary care.

Agency Response:  The Division anticipates health care providers and insurance carriers will integrate the disability management concepts to assure effective and efficient health care and promote early and appropriate return to work for injured employees. The Division agrees that the adopted guidelines only establish benchmarks for use in the system. Individual claims may require more or less treatment, or more or less recovery time based on the specifics of the injury.  The disability management rules recognize this and a variance from the guidelines should be supported by documentation.  In addition, the Division believes that treatment guidelines alone do not establish the legal standard of care for a physician in Texas but may provide the courts with a benchmark by which to determine clinical conduct in the workers’ compensation system. Further, Labor Code, §413.011(e) prohibits the denial of treatment solely on the basis that the proposed treatment is not specifically addressed by the treatment guidelines.  The Division will monitor the use of the disability management tools by all system participants to assure compliance with the intent of HB 7.

General:  Commenters opine that extensive education of system participants is required if the guidelines are going to be used as intended by their authors and the Division.

Agency Response:  The Division agrees that education is an important component and is developing initiatives to educate system participants on the appropriate application of the rules and guidelines.

General:  Commenter recommends that if TDI adopts both MDA and ODG guidelines it should make them available on the Division’s website so that any updates are instantly accessible.  MDA and ODG could obtain a user fee from TDI for the use of their guidelines.  Commenter expresses concern over the conflict of interest in adopting guidelines, then forcing the health care provider community to purchase the costly guidelines in order to have access to the information.

Agency Response:  The Division is unable to pursue the recommendation as it is beyond the scope of this rulemaking activity.  Further, no discussions took place with the vendors on this topic and no “user fee” funds are in the Texas Department of Insurance (TDI) budget. 

General:  Commenters recommend a single product, ODG, to be used by system participants because two guidelines create an undue financial burden on stakeholders.

Agency Response:  The position of the Division is that despite the cost, the use of two products, MDA for the Division’s return to work guidelines and ODG for the Division’s treatment guidelines, best serves the needs of injured employees to facilitate early and appropriate return to work.

General:  Commenter recommends independent review organization (IROs), who will determine medical necessity of treatment plans, be additionally trained at a designated doctor level so they understand the complexity of these claims and the rehabilitative potential of stay-at-work/return-to-work planning.  Additionally, commenter recommends consideration be given for using trained, matched health care providers in the discernment of treatment planning disputes.

Agency Response:  The Division agrees that IROs should be completely familiar with the Division’s adopted disability management rules.  However, it is outside the scope of statutory authority to regulate IROs through the disability management rules.  The Division disagrees with the recommendation regarding matching health care providers.  Standards related to the prospective review or retrospective review of medical care are currently defined in the Insurance Code Article 21.58A and Division rules and no additional clarification is needed in these rules.  In addition, Insurance Code, Article 21.58A includes the requirements for peer-to-peer reviews.

General:  Commenters recommend that as disability management rules are implemented, adjustments must also be made to the general medical fee schedule.  Commenter suggests designated doctors and IROs reimbursement be considered for adjustment. Commenter states this would allow for continued adequate access to quality health care providers.

Agency Response:  The Division agrees and adjustments to §134.202 may be required as disability management concepts are fully integrated into the workers’ compensation system.  The responsibilities of treating doctors and the administrative complexity of the system play an important role in setting appropriate rates and assuring adequate access to health care providers. In establishing the rate included in the Medical Fee Guideline, the Labor Code requires the Division to consider many factors.  The disability management rules, as well as other Division rules, will play a significant role in future revisions to designated doctor reimbursement.  IRO fees are set by Department of Insurance  rules Chapter 12, Subchapter E, §12.401, §12.402, and §12.403, and are outside the authority of the Division and these disability management rules.

General:  Commenter states that although citing Labor Code §413.021 as an effective statutory provision, the rules do not implement the provisions of §413.021(e) requiring the Division to adopt rules necessary to collect data on return to work outcomes to allow full evaluation to success and barriers to achieving timely return to work after an injury.

Agency Response:  The Division agrees that these rules do not include a specific data collection component. The adoption of these rules, however, sets benchmarks for potential use in evaluation of various components of the workers’ compensation system.

General:  Commenters observe the proposal preamble states ODG covers 99% of conditions, but this does not mean ODG covers 99% of services delivered.

Agency Response:  The Division agrees.

General:  Commenter suggests the Division begin immediately working on either a pharmacy formulary or treatment protocol for pharmaceuticals, particularly narcotics.

Agency Response:  The Division acknowledges the commenters’ recommendation and is currently in the initial phase of rule making to develop a closed formulary.   Additionally, the Division notes that ODG has begun to add pharmaceutical information to the treatment guideline.

General:  Commenters recommend clarification between the appropriate usages of the two guidelines.  The proposal preamble leaves the impression that the return to work guidelines may be used to identify medical care to be delivered, which should be the function of the treatment guidelines.

Agency Response:  The Division agrees. The language is changed in §137.10 and 137.100 to clarify the use of the adopted guidelines.

General:  Commenter supports the disability management concept. A commenter supports the combination of MDA and ODG guidelines since both provide an excellent evidence-based and useable system for benchmarking purposes in the Texas workers’ compensation system.  Commenter states this combination provides the highest level of well-documented, up-to-date, unbiased, and usable evidence-based guidelines for system use.  Commenter states the rules provide enhanced communication between system participants at the ultimate benefit of assuring that the injured employees of Texas receive prompt and appropriate health care.

Agency Response:  The Division agrees with commenter’s assessment of the disability management concept.

General:  Commenters support the disability management system outlined in the proposed rules as resulting in increased communication among system participants and improved return to work outcomes for injured employees.  A commenter further supports the emphasis of evidence-based guidelines, as outcomes for all system participants can be optimized.

Agency Response:  The Division appreciates the supportive comments.

General:  Commenter states these rules are designed to favor and increase the balance of power toward the insurance carrier, to the unreasonable detriment of the injured employee. Commenter also states that it is unfair to infer that injured employees are less motivated to get better or return to work when claims are carefully researched, it will be noted that there are systematic denials of necessary treatment. There is also systematic lack of cooperation on behalf of employers to provide work within the work restrictions by the treating doctor.

Agency Response:  The Division disagrees.  The disability management concept and rules are designed to provide a framework to enhance treatment and return to work outcomes for injured employees. The tools establish benchmarks to facilitate communication between system participants and formulate return to work plans.  The benchmarks establish starting points, which may be adjusted based on the specific circumstances of the claim.

General:  Commenter states both return to work and treatment guidelines should be used only as guidelines and benchmarks, and not as a monitor for health care accuracy of reasonable and necessary treatments.  All parties, insurance carriers, injured employees, the Division, IROs, designated doctors, required medical examinations, peer reviewers, and preauthorization, should be required and allowed to substantiate when a treatment or disability exceeds or reduces the recommendations in the guideline for that specific injury.

Agency Response:  The Division agrees that the adopted guidelines establish benchmarks for use in the system.  The Division anticipates that health care providers and insurance carriers will integrate the disability management concept to assure effective and efficient health care and promote early and appropriate return to work for injured employees.  The Division will monitor the use of the disability management tools by all system participants to assure compliance with the intent of HB 7.  Individual claims may require more or less treatment or more or less recovery time based on the specifics of the injury.  It is the intent of the Division that a variance from the guidelines should be supported by documentation.

General:  Commenter states to require use of these guidelines is excessive management, creates new costs, adds new barriers to creating a workable environment for quality health care and will not be an incentive to bring quality health care providers into the system.  Parts of these rules contradict root causes for the passage of HB 7.

Agency Response:  The Division disagrees.  Uncertainty of expectations leads to confusion and frustration for all system participants.  Disability management rules provide guidelines that create reasonable expectations about the operation of the workers’ compensation system.  These benchmarks lead to consistency and more certainty for all stakeholders.

General:  Commenter is discouraged that anyone could be convinced that the new workers’ compensation system is improving the way injured employees are taken care of in Texas and provides anecdotal examples of this concern.

Agency Response:  Commenter’s concerns are noted, however, commenter’s concerns are not related to the adopted sections.

General:  Commenter is in receipt of stakeholder comments recommending treatment protocols for pharmaceuticals and narcotics.  Commenter indicates ODG addresses the various pharmaceuticals and summarizes the medical evidence and the resulting recommendations. In particular, there is detailed information on opioids and other narcotics in the Chronic Pain Section, which include definitive patient selection criteria to be used by medical providers.

Agency Response:  The Division acknowledges the Chronic Pain Section of the ODG.

 General:  Commenter notes that HB 7 indemnifies the insurance carrier for any aggravation or worsening of symptoms ascribed to any delay of treatment brought on by the insurance carrier’s officious behavior.  Commenter states that the rules permit penalizing physicians who bill their usual and customary fees rather than billing the amount specified by the medical fee guidelines.  Commenter also notes that the proposed rules will repel physicians from entering into the system.

Agency Response:  The Division acknowledges the commenter’s concern regarding HB 7 and disagrees the rules penalize physicians who bill their usual and customary fees.  Fee and reimbursement topics are generally outside the scope of these rules.  The Division disagrees the adopted rules will deter physicians from the workers’ compensation system. The Division believes adoption and implementation of the disability management concept and associated rules will increase communication opportunities for system participants, bring structure and certainty to the process, and ultimately decrease administrative burdens for system participants.

§137.1:  Commenter recommends that the Division consider in its Performance Based Oversight initiative, the doctors who consistently do not follow the treatment guidelines, or are consistent outliers of the treatment guidelines.

Agency Response:  The Division is developing standards relating to Performance Based Oversight through a process that includes stakeholders.  The language in §137.1 is permissive and allows the use of treatment and return to work guidelines throughout the Division’s programs. The Performance Based Oversight initiative is best suited to develop an integration of the guidelines into the evaluation standards. 

§137.1(a):  Commenter questions whether the proposed rules apply to every claimant, or only when there is a finding that the injured employee is at risk for delayed recovery.

Agency Response:  The Division clarifies that the disability management philosophy applies to all injured employees not subject to a certified workers’ compensation network.  Because the proposed term at risk was not clear, it is deleted in subsection (a).  The phrase to avoid delayed recovery is substituted as it indicates that avoiding delayed recovery is appropriate for any injured employee.

§137.1(a):  Commenter recommends adding standards to the rule for making determinations as to which employees are at risk for a delayed recovery.  The Division should identify the decision maker of an injured employee’s at risk status.  Commenter further recommends the Division develop training and testing for doctors to demonstrate medical expertise in determining at risk status.  Commenter states that without at risk standards the determination would be a subjective assessment that has the ability to undermine the disability management process.

Agency Response:  The Division agrees that there is confusion regarding the term “at risk.”  With the deletion of this term, there is no need to define or identify the criteria for being “at risk.”  All injured employees are included in the disability management concept in order to avoid delayed recovery.

§137.1(b):  Commenters recommend the term “shall” be used in place of  “may” to clarify that the Division will use the tools for all of the stated purposes.  Commenters question the propriety and effectiveness of achieving better return to work and medical outcomes if the use of the guidelines by the Division remains permissive and not mandatory.  One commenter states that if the Division renders a decision or takes an administrative action contrary to its guidelines, then the Division should explain, in writing, the facts that justify the Division’s deviation from its guidelines.

Agency Response:  The Division declines to make this change.  Adopted subsection (b) pertains to the integration of these tools by the Division throughout all of its processes and, as such, regulatory language is not required here.  The Division will consistently apply the criteria in this subsection, but will maintain its independent duty to provide for exceptions as needed in order to accomplish the intent of HB 7 and other statutory provisions.

§137.1(d) and (b):  Commenter states the guidelines should not be used to grade or assess the quality of any practitioner.

Agency Response:  The Division disagrees that the guidelines require the grading or assessing of quality of a particular health care provider.  However, Division activities relating to quality and performance may integrate standards including the benchmarks established by guidelines into the evaluation process of system participants.

§137.1(d):  Commenter states the treatment guidelines should not be considered to carry presumptive weight in any decision of denial or recommended treatments. 

Agency Response:  The Division disagrees that treatment guidelines should not carry presumptive weight since it would be contrary to the provisions of §413.017(1) and §413.011(e) of the Labor Code and would impede implementation of HB 7.  

§137.1(d):  Commenter suggests defining “scientific medical evidence” or otherwise a doctor may submit scientific medical evidence only to have the insurance carrier say it is not, which would not allow any variance from the guidelines. 

Agency Response:  The Division agrees that the use of “scientific medical evidence” is confusing or could lead to confusion between insurance carriers and health care providers.  Consequently, the language has been deleted.

§137.1(d):  Commenter supports this provision as written.  The provision establishes the importance of medical policies for the workers’ compensation system and should not be overridden by IRO decisions, which are made on a case-by-case basis.

Agency Response:  The Division agrees.

§137.1(d):  Commenters urge the Division to retain proposed rule language of §133.308(n)(1)(G) that requires the IRO to explain the specific basis for recommending treatment as that proposed rule relates to this subsection.  To avoid confusion, commenters recommend duplicating language in proposed rule 133.308(n)(1)(G) that requires an IRO decision that is contrary to adopted treatment guidelines or protocols to provide the specific basis for the variance.  Another commenter recommends rule inclusion that should the IRO determine a variance from the treatment guidelines, the IRO must reference scientifically based medical evidence, or the lack of efficacy of similar treatment previously provided to the claimant to support any variance from a treatment guideline, to include the lack of efficacy of similar treatment as previously provided to the claimant.

Agency Response:  The Division agrees that the IRO decisions should be fully explained and documented in accordance with applicable IRO rules.  However, the Division disagrees that additional references to the IRO process are required in this section.

§137.1(d):  Commenters state that while a medical necessity IRO decision may take precedence over adopted treatment guidelines, it would be incongruent with the presumption created by the statute as to the treatment guidelines to allow an IRO to simply ignore the treatment guidelines, or to know which citations are credible.

Agency Response:  The Division agrees that Labor Code §413.017 provides that Commissioner adopted medical policies are presumed reasonable.  However, these adopted sections do not provide for an IRO to ignore treatment guidelines and Division rule 133.308 establishes the criteria for an IRO decision that deviates from Division policies or guidelines. 

§137.1(d):  Commenter recommends added language to read, “In a medical necessity dispute, insurance carriers, health care providers and injured employees should submit scientific medical evidence ‘based on appropriately peer-reviewed, double-blinded and fully vetted data’ that establishes that a variance from the adopted treatment guidelines or treatment protocols is reasonably required to cure and/or relieve the injured employee from the effects of the compensable injury.”  The commenter states this would further define “scientific medical evidence” and answer the questions as to which citations are credible and who determines the veracity of the citations. Commenter further states this would assist a non-medically trained hearing officer to ensure the highest and most prevailing standard of care.

Agency Response:  The Division disagrees that the recommended language to define scientific medical evidence is necessary.  Language regarding requirements of documentation to be submitted in a medical necessity dispute has been deleted because this criterion would be duplicative of the requirements of §133.308 and would also be confusing.

§137.1(d):  Commenter recommends changing the term “should” to “shall” so that the rule reads, “In a medical necessity dispute, insurance carriers, health care providers and injured employees ‘shall submit scientific evidence that establishes…” Commenter further recommends that subsection (d) be revised, written in plain language so that the case-by-case basis is made clearer.

Agency Response:  The Division disagrees with commenter’s recommended language substitution or need for revision.  This language in the subsection has been deleted because the specific requirements of the IRO process are included in §133.308 and such language is confusing and is not necessary in this section.

§137.10:  Commenter believes the addition of a case management function is missing, but necessary in this rule proposal. Commenter recommends the payor reimburse the doctor for this case management function, which would include employer contacts and negotiated stay-at-work/return-to-work plans.

Agency Response:  The Division disagrees that the basic form of medical case management is not addressed as the Division notes this is the role of the treating doctor in the workers’ compensation system.  These rules enhance the ability of the treating doctor to fulfill the requirements of  §408.025 and §408.021 of the Labor Code by requiring increased communication between referral providers and the treating doctor for claims requiring treatment planning.  The coordination of that comprehensive plan is the responsibility of the treating doctor.  The Division acknowledges that case management services referred to in §413.021 of the Labor Code have not yet been proposed.  The Division intends future rule-making activities to address this form of case management services as well as other components of the disability management chapters and rules.  Case management activities are currently addressed in §134.202, however, adjustments to the Medical Fee Guideline may be required as disability management concepts are fully integrated into the workers’ compensation system.

§137.10:  Commenter states stakeholders should be equally accountable for the employees’ return to work and encourages the Division to consider educating employers about their responsibilities for accepting injured employees back to work.

Agency Response:  The Division agrees that all system participants have a responsibility to encourage and facilitate return to work. The Division provides focused educational efforts with employers emphasizing return to work through seminars, publications, and website information.  The Division believes these rules provide tools to enhance the exchange of information between system participants to develop more effective return to work plans and improve return to work outcomes.

§137.10(a)  Commenter supports the adoption of the MDA Guidelines for the following reasons: MDA is accepted globally as an industry standard; MDA guidelines are scientifically valid and evidence based; MDA uses the best available external evidence based on 5 million records of observed data by those managing the injury or illness and/or paying the claim;  MDA guidelines dramatically reduce lost time days;  MDA creates a mechanism for communication between health care providers and patients whereby everyone starts on the same page;  MDA sets recovery expectations for patients and gives health care providers a framework for counseling and guiding patients regarding return to work expectations; and MDA uses the best available external evidence based on 5 million records of observed data by those managing the injury or illness and/or paying the claim.  Another commenter supports adoption of the MDA return to work guidelines even though not everything will require the values noted, and some issues will require more.

Agency Response:  The Division appreciates the support of the MDA as the Division’s return to work guidelines.

§137.10(a):  Commenter states the rule seems to mandate the use of return to work guidelines when it is or could be detrimental toward the claimant; however, the guidelines are optional when they could be detrimental toward the insurance carrier.

Agency Response:  The Division disagrees that the return to work guidelines are biased against a claimant or optional for insurance carriers. The guidelines are benchmarks to facilitate communication between system participants and formulate return to work plans.  The benchmarks establish starting points, which may be adjusted based on the specific circumstances of the claim.

§137.10(a):  Commenter believes MDA, as a return to work guideline, is not designed to reduce excessive or inappropriate medical care.

Agency Response:  The Division agrees that the return to work guidelines are not directly designed to reduce excessive or inappropriate medical care.  However, early and appropriate return to work directly impacts the need for, and types of, medical care provided to injured employees. Ultimately, this early intervention impacts system costs.

§137.10(a):  Commenter is concerned that MDA does not take into consideration the complexity of the job and the job specific requirements for return to work. Commenter states this will cause a huge problem in outcomes if the insurance carriers deny treatment without considering all of the factors involved in the injury, diagnosis, as well as the complexity of the job and the requirements for return to work.

Agency Response:  The Division disagrees.  Although not every circumstance of a particular job is included in the MDA, broad categories related to the intensity of a job activity are included.  As previously stated, these guidelines are a tool to develop return to work plans and set benchmarks. They provide the foundation for implementation of §413.021(b) of the Labor Code, which include job analysis, job modification and restructuring assessments. 

§137.10(a):  Commenter opines that the rules significantly impinge on the ability of health care providers to treat those injured employees who do not improve on the arbitrary, rigid schedule.

Agency Response:  The Division disagrees.  Medical care provided in the workers’ compensation system is still controlled by the basic premise of an injured employee’s entitlement to certain benefits, including medical benefits.  These rules facilitate treatment planning and return to work planning and allow for development of those plans based on the injured employee’s specific situation and medical needs.

§137.10(a):  Commenters recommend the Division be required to apply the return to work guidelines and question the propriety and effectiveness of achieving better return to work and medical outcomes if the Division’s use of the return to work guidelines remains permissive and not mandatory.  A commenter recommends the rules should create a presumption in favor of the disability guidelines adopted and any decision by a hearing officer or the Appeal Panels that is at variance with the disability guidelines should be explained as to why such variance is appropriate in the particular case.  Additionally, interlocutory orders should not be issued for payment of temporary income benefits (TIBS) in a case where the requested disability is inconsistent with the disability guidelines

Agency Response:  The Division declines to make these changes because it is inconsistent with Division policy.  Division policy is that guidelines are intended to develop benchmarks for treatment while also considering the specific situations and medical needs of injured employees.  Adopted subsection (a) pertains to the use of MDA by system participants, and as such, prescriptive language for the Division is not required.  The Division will consistently apply the criteria in this subsection, but will maintain its independent duty to provide for exceptions as needed in order to accomplish the intent of HB 7 and other statutory provisions.  The Division notes the section permits system participants and the Division to consider an injured employee’s co-morbid conditions, medical complications, or other factors that may influence medical recoveries and disability durations as mitigating circumstances when establishing return to work goals or revising expected return to work durations and goals.  Disability durations in the guidelines are not absolute values and do not represent specific periods of time at which an injured employee must return to work; instead, the values represent points in time at which additional evaluation may occur if an injured employee has not experienced a full medical recovery and returned to work.  Therefore, the suspension of an injured employee’s TIBS is not mandatory if the injured employee’s disability duration is inconsistent with the return to work guidelines. 

§137.10(a):  Commenter recommends identifying triggers in the return to work guidelines to initiate the requirement for treatment planning such as ODG’s “at risk” date, which is suitable for this purpose.  Commenter further opines that MDA’s optimum number of days will result in well over 50% of cases being forced into treatment planning.

Agency Response:  Because the term at risk in proposed §137.1(a) is not clear, it is deleted and the phrase to avoid delayed recovery is substituted as it indicates that avoiding delayed recovery is appropriate for any injured employee.  The use of a return to work guideline as a trigger for treatment planning is not addressed in §137.10, but is addressed in adopted §137.300.  Treatment durations and other considerations outlined in §137.300 clarify the requirements for treatment planning.  Since duration is not the only consideration in the treatment planning process, it is unlikely that 50% of the cases will require treatment planning.

§137.10(a):  Commenter outlines the differences in the sources of data used to develop MDA and ODG return to work guidelines.  Commenter states that by adopting MDA the state of Texas can rest assured it is working with the best evidence-based return-to-work guideline available. 

Agency Response:  The Division appreciates the support of the Division’s selection of MDA as the Division’s return to work guidelines.

§137.10(b):  Commenter recommends clarifying language including that the rule does not apply to claims subject to workers’ compensation under health care networks under Chapter 1305 of the Insurance Code.

Agency Response:  The Division acknowledges the commenter’s concern regarding the applicability of the adopted disability management rules to health care networks, however, the Division declines to make the modifications to the rule that reiterates the provisions of HB 7 and the sections of the Labor and Insurance Codes.  Labor Code, §413.011 (g) provides that rules adopted relating to disability management do not apply to claims subject to workers’ compensation networks.  Workers compensation networks are required to adopt their own treatment guidelines, return-to work guidelines, and individual treatment protocols, pursuant to  Insurance Code, §1305.304.  Based on the specificity of the Labor Code and Insurance Code provisions, it is the Division’s opinion that it is unnecessary to restate such provisions in the adopted rules.

§137.10(b):  Commenter recommends that if the Division adopts two separate guidelines as proposed, one for return to work and one for treatment guidelines, further clarification should be made that treatment information in the MDA should not be used by system participants.

Agency Response:  The Division agrees. Language is added to §137.10 and §137.100 to clarify the use of the adopted guidelines.

§137.10(c):  Commenter recommends using “optimum” time frames as provided in MDA for each specific diagnosis and job description; and, commenters recommend adding language, “optimum disability duration identified in the …” or “maximum duration and job classification clarification”.  Commenter states it is more reasonable for all system participants to adopt the “optimum” disability duration as the statistical norm (benchmark), rather than assuming that disability will reach the accepted “maximum” in all situations. 

Agency Response:  The Division disagrees with the use of the MDA “optimum” time frames as a disability duration benchmark as the return to work standard for each specific diagnosis and job description, and thus disagrees with suggested language addition.  While the disability duration tables provide benchmark information on expected lengths of disability, the values do not represent the absolute minimum or maximum lengths of disability at which an individual must or should return to work.  Rather, they represent important points in time at which, if full recovery has not occurred, additional evaluation should take place.  These values are designed to allow individual differences in recovery time based on the numerous variables that impact disability duration.  System participants should consider many factors including the diagnosis, any age-related complications, medications, return to work facilitations, availability of modified, alternate or transitional duty, job duty demands, managed disability programs, and employer’s workplace factors when evaluating readiness for return to work. 

§137.10(c):  Commenter suggests defining “reasonable.”  Commenter states that this provision requires that the guidelines shall be presumed reasonable.  Commenter questions the standard for overturning this presumption.  Commenter further inquires whether the presumption disappears or shifts upon a showing to the contrary.

Agency Response:  The Division disagrees with commenters’ recommendation to further define “reasonable.”  In establishing the guidelines, the Reed Group collected data on more than 3.5 million workplace absence cases from multinational companies and governmental organizations to compile the normative database for the Fourth Edition.  The database consists of actual workplace absence data from a wide range of industries and geographic locations.  In order to represent the most objective, accurate, and reliable view of disability duration, Reed Group’s data set includes organizations that manage disability as well as those without case management services.  The Division clarifies that a “standard for overturning the presumption of reasonableness” is not necessary in this rule since the disability durations are not absolutes or an end in themselves.  The disability durations are benchmarks for establishing or re-assessing goals, or are the basis for a designated doctor examination, case management or a referral to vocational rehabilitation.  These values do not represent the minimum or maximum lengths of disability at which an individual must or should return to work.  Rather, if full recovery has not occurred, they represent important points in time that may indicate that further evaluation and planning is appropriate.  The values are designed to allow individual differences in recovery time based on the numerous variables that impact functional restoration, and as such should be used as a communication tool for the insurance carrier, health care provider, injured employee and employer to discuss the patient’s progress or any need to extend the established values. 

§137.10(c):  Commenter supports the Division’s adoption of the MDA as a guideline for providing disability duration expectancies. Commenter recommends a rule requirement that a health care provider submit supporting documentation when a return to work goal for an injured employee differs from the MDA chart estimation for the employee’s particular injury.  Commenter further recommends that the rule require that the health care provider identify the basis for a determination of job classification, i.e., employee, employer, or job analysis. Commenter believes that an employee’s estimation of the kind of work the employee performs is not, in fact, always what is documented in the employer’s job analysis.  These recommendations are necessary since the MDA guidelines are not “absolute values” and do not address how to calculate a co-morbid or complicating factor’s impact on the expected duration of a disability, and a standard calculation cannot be applied.

Agency Response:  The Division declines to make the modifications to the rule for reasons previously stated that not every circumstance of a particular job is included in the MDA, and broad categories related to the intensity of a job activity are included.  These guidelines are a tool to develop return to work plans and set benchmarks.  They provide the foundation for implementation of §413.021(b) of the Labor Code, which includes job analysis, job modification and restructuring assessments. 

§137.10(c)(2):  Commenters state the rules are silent and fail to specify consideration of the guidelines by designated doctors, benefit review officers and hearing officers when determining disputes of return to work disability length issues, which may result in confusion.  The insurance carrier’s use of the return to work guidelines is unnecessarily and inappropriately limited to a basis of requesting a designated doctor appointment, or referral to rehabilitation, regardless of prior findings on those same appointments or referrals.  This renders any presumption moot.  Though proposed rule 137.1(b) specifically permits the Division to use Chapter 137 rules as tools in income benefit disputes, the specificity of 137.10(c) fosters potential conflict.  Commenters recommend requiring the designated doctor to presume that the Division’s return to work guidelines provide a reasonable length of disability duration, and if the designated doctor finds disability beyond the period of time outlined in the guidelines, then the designated doctor should identify the medical facts that justify a longer duration of disability; or, offer scientific medical evidence that establishes a variance.  Commenter recommends the presumption of some other evidence, such as treatment guidelines, be considered when ascertaining whether a designated doctor’s report on MMI is entitled to presumptive weight when the two are in conflict.  Commenters recommend that the Division should be required to presume that its guidelines provide a reasonable length of disability duration and should be used by the Division in resolving disputes.  Further, if the Division resolves a disability dispute by finding that the employee is entitled to temporary or supplemental income benefits for a time in excess of the expected length of disability duration, then the Division should explain how the facts of the claim justify a greater period of lost time.  A commenter states the designated doctor should be required to presume that the return to work guidelines provide reasonable length of disability duration, and if the designated doctor finds disability beyond the period of time outlined in the guidelines, then the designated doctor should identify the medical facts that justify a longer duration of disability.  Commenter recommends that if a designated doctor increases or lessens an injured employee’s return to work period he should specify his reasoning.

Agency Response:  The Division disagrees that the provisions of (c)(2) restrict the insurance carrier’s use of the guidelines.  The overarching disability management concept anticipates the use of MDA as a benchmark, and not an absolute, to facilitate return to work planning and ultimately improve return to work outcomes.  Further, commenters are directed to subsection (e) of this section, which provides flexibility for the application of the guidelines to a particular injury.  The Division agrees that the designated doctor decisions should be fully explained and documented in accordance with rules pertaining to the roles and function of designated doctors.  However, it is the Division’s opinion that no additional references to the designated doctor responsibilities are required in this section.

§137.10(c):  Commenter recommends new paragraphs (4) and (5) be added to this subjection that identify how the Division intends to use the return to work guidelines: “(4) Division Medical Advisor and Medical Quality Review Panel in order to review performance of doctors on the Approved Doctor’s List and other health care providers; and (5) Division Contested Case Hearing Officers and Appeals Panel in deciding benefit disputes involving issues of existence and duration of disability.”

Agency Response:  The Division declines to make the recommended additions since the requested provisions are already included with the use of disability management tools as outlined in §137.1(b).  The Division policy is to consistently apply the disability management tools, and to also maintain its independent duty to provide for exceptions as needed in order to accomplish the intent of HB 7 and other statutory provisions.

§137.10(d):  Commenter states it is improper to claim that co-morbidity may be considered; instead, co-morbidity must be considered.

Agency Response:  The Division declines to make a change, as co-morbidities will not always be present in each individual case.  However, the Division clarifies that system participants should consider all factors including any applicable co-morbidity, diagnosis, any age-related complications, medications, return to work facilitations, availability of modified, alternate or transitional duty, job duty demands, managed disability programs, and employer’s workplace factors when evaluating readiness for return to work. 

§137.10(d):  Commenter supports language in the subsection and states in real life patients often present with multiple diagnoses, which complicates their treatment and may extend their disability.  This fact needs to be taken into account and explicit reference in the rule is a good idea.

Agency Response:  The Division appreciates the supportive comment related to subsection (d).

§137.10(d):  Commenters recommend clarifying “other factors” as the term is vague, undefined (e.g., not just subjective complaints of pain) and subject to variance in interpretations and applications.  Commenter recommends that other factors considered should specifically include objective, documented medical findings of sufficient quality to overcome the return to work guidelines’ presumption of reasonableness.

Agency Response:  The Division declines to further define factors that system participants may need to consider as mitigating circumstances when setting return to work goals or revising expected return to work durations and goals.  Specificity in this area could potentially hinder communication efforts and limit the ability to fully consider and implement a return to work plan.

§137.10(d):  Commenter recommends deletion of subsection (d) because the presence of co-morbid conditions are already addressed in the return to work guidelines, and there is no need to specifically account for such conditions in the rule.

Agency Response:  The Division acknowledges that although co-morbidities are already addressed in the guidelines, there may be situations where consideration of other, unlisted co-morbidities may be appropriate.  Failure to identify and consider those co-morbidities could lead to a delayed recovery, which is contrary of the expressed purpose of the disability management concept as provided in §137.1(a).

§137.10(e):  Commenter suggests MDA guidelines be used in the context of the users’ experience and judgment, and should not be used to tell the doctor what to do or not do.  No injured employee should be denied payment based on the guidelines.

Agency Response:  The Division agrees that the guidelines are a tool to be used to enhance the knowledge of system participants concerning return to work time frames.  Return to work planning should integrate the disability management tools as well as the experience and judgment of the system participants.  The Division also agrees with commenter that return to work guidelines should not be the sole justification for granting or denying income benefits to an injured employee.  Subsection (e) has been changed to further clarify this provision.

§137.10(e):  Commenters support the provisions of subsection (e) and especially referencing that the insurance carrier may not use the guidelines to reduce or deny income benefits.  Commenter recommends adding the phrase “health care benefits.”  Another commenter supports this provision that prevents the return to work guidelines from being used as a justification to reduce or deny injured employees’ income benefits.

Agency Response:  The Division clarifies subsection (e) is changed to indicate that Division return to work guidelines should not be used as the sole justification or the only reasonable grounds for reducing, denying, suspending, or terminating income benefits to an injured employee.  The Division declines to add the recommended language because the MDA does not address medical care.

§137.10(e):  Commenters recommend that while the rule could state that an insurance carrier may not use the guidelines as the sole (emphasis added) basis for suspension or refusal to initiate benefits, the rule should favor claim management decisions that are based upon guidelines that the Division specifically states are scientifically based. 

Agency Response:  The Division will consistently apply the criteria in this subsection, but will maintain its independent duty to provide for exceptions as needed in order to accomplish the intent of HB 7 and other statutory provisions.

§137.10(e):  Commenter justifies that to preclude the insurance carrier from considering the adopted disability guidelines in assessing the doctor’s credibility as to disability, is to limit the range of evidence in a manner inconsistent with articulated legislative intent. Commenter further suggested that the insurance carrier should be able to refuse to initiate, or suspend, benefits on the basis of disability guidelines.  If the claimant disagrees, as proving disability is the claimant’s burden, the claimant can request a designated doctor to address the issue. Another commenter asserts it is proper for the insurance carrier and the Division to consider the guidelines as a useful tool in deciding if existing medical opinions and claim investigation support the ongoing disability.

Agency Response:  As previously stated, the Division clarifies that designated doctors, IROs and other hearing officers’ decisions should be fully explained and documented in accordance with rules pertaining to their roles and functions in the workers’ compensation system.  However, it is the Division’s opinion that no additional reference is required in this section.  The Division agrees that the adopted return to work guidelines are a valid benchmark in assessing an injured employee’s ability to return to work.  However, language was added to this subsection to clarify that an insurance carrier may not use the return to work guidelines as the sole justification or the only reasonable grounds for reducing, denying, suspending, or terminating income benefits to an injured employee.

§137.10(e):  Commenter recommends that the rule should specify that benefit reductions or denials should not be based solely on the return to work guidelines, as there is no statutory prohibition to consider the return to work guidelines in making benefit determinations. Commenter further opines the limitations placed on return to work guidelines usage appear to be in conflict with §413.011(f) of the Labor Code.

Agency Response:  The Division agrees and subsection (e) is changed to clarify that return to work guidelines should not be the sole justification or the only reasonable grounds for reducing, denying, suspending, or terminating income benefits to an injured employee.  The Division disagrees that the limitations related to the use of the guidelines for denial of benefits conflicts in any way with §413.011(f) of the Labor Code.  Subsection (e) allows the use of the guidelines to deny benefits, but prevents their use as an arbitrary standard without consideration of other factors.

§137.10(e):  Commenters support and agree that the MDA published by the Reed Group is based on statistical analysis of actual outcome data and return to work outcomes for workers’ compensation should fall in line with that summary.

Agency Response:  The Division appreciates the supportive comment related to subsection (e).

§137.10(f)  Commenter recommends alternate language that substitutes “may” for “shall,” because commenter states it would be impossible for system participants to be able to comply with the mandatory requirements of this rule since at the present time there does not exist evidence-based medicine that addresses disability duration parameters and return to work goals for all diagnoses or injuries that are not addressed by the MDA.

Agency Response:  The Division declines to make the recommended change, but recognizes that as proposed, system participants may not be able to fully comply with the requirements. The language is changed to clarify that in instances not addressed by the Division return to work guidelines, the principles of evidence-based medicine are to be applied to establish return to work goals.

§137.100:  Commenter states that litigation is pending against the WLDI in federal court.  Commenter provides documentation of the complaint and states that the plaintiff alleges breach of contract in connection with a royalty agreement, breach of a confidentiality agreement, and conversion of confidential business information.  Commenter takes no position on the merits.

Agency Response:  Based on the documentation provided by the commenter, the Division disagrees that the complaint against WLDI is relevant to the  disability management rules.  The thrust of the allegations concerns a contract dispute not relevant to the disability management rules adopted by the Division.

§137.100:  Commenter supports the concept of treatment guidelines and treatment planning as they are the focus of these proposed rules for workers’ compensation reform.  Commenter states that the appropriate use of the treatment guidelines is more important than which treatment guidelines are adopted. When used appropriately, treatment guidelines can be an effective tool to control utilization and inappropriate health care.

Agency Response:  The Division appreciates the supportive comments pertaining to treatment guidelines and treatment planning.

§137.100:  Commenter states agreement with the Federal Aviation Committee’s conclusion that evidence-based medicine, selected or implemented without clinical experience, is very dangerous.

Agency Response:  The Division agrees that clinical expertise is an important consideration in the effective application of treatment guidelines.  The Division anticipates health care providers in the Texas workers’ compensation system will integrate their expertise with the adopted treatment guidelines so that effective and efficient medical care is provided to injured employees in order to improve return to work outcomes.

§137.100:  Commenter states that the proposed rule is significantly better than the pre-proposal rule that provided an unrebuttable presumption that all treatment in the treatment guidelines is reasonable and necessary without regard to the particular facts of the individual case.

Agency Response:  The Division appreciates the comment and acknowledges the change was made from pre-proposal drafts as a result of system stakeholders’ input.

§137.100:  Commenter states that monthly or quarterly updates sound appealing, but is inconsistent with evidence-based medicine. Continuously updated guidelines present a moving target for treating physicians and reviewers, requiring continuous retraining and inefficiency.  Commenter opines that the literature seldom produces an article so compelling that it alters an evidence-based guideline.  Commenter states that it takes a number of studies carried out in different settings by different investigators to convince guideline developers that a finding is valid.

Agency Response:  The Division disagrees that the continual updating of treatment guidelines is inconsistent with evidence-based medicine.  Labor Code, §401.011(18-a) contemplates the use of current scientific and medical evidence to assist health care providers in making decisions about the care of employees with work-related injuries by defining “evidence-based medicine” to mean “the use of current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.”  One resource reports that “without current best evidence, a clinical practice risks becoming rapidly out of date, to the detriment of patients.”  David L. Sackett, William M.C. Rosenberg, J.A. Muir Gray, R. Brian Haynes, and W. Scott Richardson, Evidence Based Medicine: What It Is and What It Isn’t, British Medical Journal 312 (7023), 13 January, 71-72 (1996).  Another reference provides that regular updating of reviews is necessary in order to ensure the accuracy of the information since “a print review article is out of date as soon as it is published.”  Lisa A. Bero, Ph.D, Evaluating Systematic Reviews and Meta-Analyses, Journal of Law and Policy 570, 578 (2006).  Based on the findings of new studies as they are released, the Division believes it is appropriate for WLDI to review the ODG treatment guidelines and make necessary revisions due to its frequent review of the scientific medical literature, survey data analysis, and expert panel validation.   

§137.100:  Commenters express concern regarding ODG’s disclaimer language that states the treatment guidelines are not to be used as cookbook medicine for rendering medical advice, and the final opinion regarding treatment and the ability of a patient to return to work rests with the physician treating the patient.  Another commenter states that ODG does not consider the complexity of the job, job requirements for return to work, or other medical problems that may effect healing and/or complications related to the diagnosis/injury. It is very important that all of these things must be considered in a treatment guideline.

Agency Response:  The Division notes commenters’ concerns.  The Division anticipates health care providers’ ability to use these tools, and the treatment guidelines as a framework to develop treatment for injured employees. The health care provider must consider care above or below the guidelines consistent with the unique factors associated with an injury.  The rules anticipate certain care outside or inconsistent with the treatment guidelines be managed through treatment planning as coordinated with the preauthorization process.

§137.100:  Commenter is concerned that insurance carriers and peer review doctors will utilize the synopsis of the outline for care without utilizing the entire ODG guidelines, which only benefits the payors.

Agency Response:  The Division notes the commenter’s concern.  Injured employees continue to be entitled to all health care reasonably required by the nature of their compensable injury when necessary as established by Labor Code §408.021. Section 137.100 (a) provides that health care providers shall provide treatment in accordance with the current edition of ODG unless the treatment(s) or service(s) require preauthorization in accordance with §134.600 or §137.300. The Division will monitor the use of the disability management tools by all system participants to assure compliance with the intent of HB 7. 

§137.100:  Commenters state that the Federal Agency for Healthcare Research and Quality (AHRQ) does not investigate the evidence-based credibility of guidelines accepted for inclusion in the National Guideline Clearinghouse.  Another Commenter provides that AHRQ does not permit guideline listing to be used for promotional purposes.        

Agency Response:  The Division agrees that AHRQ does not review information contained in an individual guideline’s content.  However, the intent of the National Guideline Clearinghouse is to make evidence-based clinical practice guidelines available to health care professionals after meeting the criteria for inclusion.  The Division acknowledges that inclusion of a guideline in the National Guideline Clearinghouse does not constitute an endorsement by AHRQ or any of its contractors of the guideline.  The Division does not agree that a guideline included in the National Guideline Clearinghouse is prohibited from disclosing its inclusion in the database and providing the criteria for inclusion.

§137.100:  Commenter recommends spine injuries be addressed separately. Commenter additionally recommends a separate law that incorporates American Association of Orthopedic Surgeons (AAOS) and North American Spine Society (NASS) algorithms for spine injury and includes updates of those algorithms.

Agency Response:  The Division declines to develop rules that separately address spinal injuries and believes the ODG sufficiently addresses spinal injuries.  The disability management concept provides for the treatment of spinal injuries through the references provided in the treatment guidelines, treatment planning and preauthorization.  The Division clarifies that amendments to the Labor Code would need to occur through the legislative process and not through the agency’s rule making authority.

§137.100:  Commenter’s opinion is that ODG treatment guidelines fail to take into consideration the full complexities of the spine and ODG provides overly simplistic recommendations that fail to recognize the multiple factors involved in the extensive decision-making process prior to performing spinal surgery.

Agency Response:  The Division believes the ODG sufficiently addresses spinal injuries.  The Division agrees that identifying and recommending appropriate treatment can involve a complex decision making process.  Prior to any spinal surgery, the ODG should be followed.  If spinal surgery is medically necessary, then preauthorization must be obtained before the service is provided, as required by Labor Code §413.014.  Preauthorization for spinal surgery is required whether the care is in accordance with or outside the treatment guidelines. 

§137.100:  Commenter states that there is potential that patients may be denied the necessary and appropriate care based on the guidelines alone, and not the accepted treatment standards that carry a greater degree of validity and scientific merit than a guideline.

Agency Response:  The Division notes the commenter’s concern.  Injured employees continue to be entitled to all necessary health care as established by Labor Code §408.021.  The Division anticipates that health care providers and insurance carriers will integrate the disability management concepts to assure effective and efficient health care and promote early and appropriate return to work for injured employees. The Division will monitor the use of the disability management tools by all system participants to assure compliance with the intent of HB 7. 

§137.100  Commenter recommends the Division not adopt the ODG treatment guidelines in their current form, as further up-to-date work is needed by ODG that recognizes already proven treatment methodologies.

Agency Response:  The Division disagrees. The Labor Code requires the Commissioner to adopt treatment guidelines for use in the workers’ compensation system.  The ODG is the best match for the system at this time. ODG reviews new information and studies as they become available and integrates these references into the online version on an ongoing basis.  Additionally, a health care provider may submit treatments and services not included in the adopted treatment guidelines for preauthorization by the insurance carrier.

§137.100:  Commenter states this rule is an inflexible restraint on the patient’s ability to receive appropriate care and it ignores the uniqueness of each patient, co-morbid conditions, medical complications or other factors.  Commenter states this rule envisions cookie-cutter treatment for all injured employees regardless of their individual abilities to recover or return to work.

Agency Response:  The Division disagrees. The Division anticipates health care providers’ ability to use these tools, and the treatment guidelines as a framework to develop treatment for injured employees.  The health care provider must consider care above or below the guidelines consistent with the unique factors associated with an injury.  The rules anticipate certain care outside or inconsistent with the treatment guidelines be managed through treatment planning as coordinated through the preauthorization process.  Injured employees continue to be entitled to all necessary health care as established by Labor Code §408.021.  The Division will monitor the use of the disability management tools by all system participants to assure compliance with the intent of HB 7.  

§137.100:  Commenter states that adoption of ODG will not reduce excessive or inappropriate medical care and provides examples to support this position.  Commenter opines that if the “Codes for Automated Approval” are used as presented without instruction for appropriate use, surgeries (for example, for carpal tunnel syndrome and discectomy), multiple imaging studies, and levels of service in excess of  those proven effective would be automatically approved. Commenter believes such automated approval would render the utilization review process inoperative to a large extent and would mandate approvals without consideration of individual case information, as would occur when managing a patient clinically or when performing high quality utilization review.  Commenter compares the ODG neurological criteria with Hoppenfied’s Orthopedic Neurology and Dermatome Maps to opine that the ODG criteria for lumbar discectomy is not generally accepted and could result in unnecessary surgery.

Agency Response:  The Division disagrees that ODG is not designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care.  ODG provides clear data on optimum frequency and duration of treatments.  The ODG treatment guidelines explain that claims should ideally be managed based on the details of the case using the “Procedure Summary.”  The ODG Procedure Summary includes possible therapies, diagnostic methods, and provides a summary with a reference to the most recent medical evidence with an indication of whether the procedure is recommended, not recommended, or under study. See, ODG at 14. Within a Procedure Summary, ODG provides guidelines for instruction that include specific utilization review criteria often presented in an algorithmic format.  See, ODG at 16.  ”For surgical procedures that may be supported by high quality medical studies, ODG provides a decision matrix entitled ‘ODG Indications for Surgery’ ™ that itemizes the decision-making process and patient selection criteria for successful outcomes from the surgery.”  Id.  In addition, §134.600(p) requires preauthorization for outpatient surgical or ambulatory surgical services, spinal surgery, and certain repeat diagnostic studies to consider individual case information.  Quality and timely care in workers’ compensation cases have become synonymous with overall cost containment.  The level of cost containment is directly proportional to the degree of over-utilization of medical treatment currently experienced in the system.

§137.100:  Commenter states there are many areas where even ODG does not address specific diagnoses and interventions, particularly in the area of mental health and behavioral health care.  Commenter consequently recommends the addition of language from §413.011(18-a) with explicit language that there will be many situations where ODG does not adequately address the service requested and other evidence-based guidelines and empirically based literature will need to be consulted. 

Agency Response:  The Division declines to make the recommended change.  Treatments, services and diagnoses not specifically addressed in the treatment guidelines are addressed through the preauthorization or treatment planning processes and as such no additional language is necessary. 

§137.100:  Commenter states opposition to the Texas Department of Insurance’s relegation of ACOEM as the proposed treatment guidelines and provides examples of the failure of the guidelines to assist health care providers in communicating with insurance carriers the care necessary for injured employees.

Agency Response:  The Division clarifies that the ACOEM practice guidelines are not adopted as treatment guidelines for use in the non-network worker’s compensation system.  However, the Division notes that certified workers’ compensation health care networks have the flexibility to utilize these or other guidelines according to their individual business practices.  

§137.100:  Commenter recommends the rules adopted by the Commissioner should amend the definition of “evidence-based medicine” to replicate the definitions provided in a position statement and defined by the AAOS (evidence-based practice; best research evidence; clinical expertise; and patient values).

Agency Response:  The Division declines to make the recommended change as Labor Code §401.011(18-a) defines evidence-based medicine.

 

(this document is divided into two parts, please see Part 2)


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Last updated: 03/11/2014



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