State News : Texas

It seems that every month we have something to relate about the ongoing national opioid epidemic, and, unfortunately, this month is no different. Recent reporting from Bloomberg news indicates that, while opioid dependence is a growing cause of unemployment, about two-thirds of those who abuse pain relievers are still employed. The impact of such a scenario should be obvious: opiate use in the workplace lowers attentiveness and increases the risk of injury to the affected worker and his or her colleagues. Additionally, according to Castlight Health, a San Francisco-based healthcare information company, the cost of healthcare expenses posed to an employer by an opioid-dependent worker is roughly twice as much as that of clean employee. 

Drug-testing among employers is on the rise, but synthetic opioids such as oxycodone are frequently omitted from testing, perhaps because of their basis in seemingly legitimate prescriptions from medical providers. 

The crisis was addressed at the 2017 Risk Management Summit in Las Vegas. Greater employer involvement, specifically through the use of nurse case managers, was touted as a particularly effective tool in preventing opioid dependence among injured employees, returning them to work quickly, and maintaining productivity upon their return. When a physician has prescribed narcotics, a nurse case manager can engage the prescribing physician in discussions about how best to wean an injured employee off the medication, stopping dependence before it begins.

Of special interest to this month’s newsletter author, the Bureau of Labor Statistics notes that nearly 20 percent of adults over 65 continue to work rather than retire.  The reasons are varied, but some folks stay on the job because they like the job they do and the people they work with.  This means that the workforce is aging, and along with that trend comes more medical treatment for ordinary degenerative diseases of life that may be aggravated by work activities – picture an old jalopy with loose fenders and cloudy headlamps.   It may be slow but it’ll get you there. The moniker  “Silver Tsunami” is being applied, but we wonder whatever happened to the “Golden Years?”

The First District Court of Appeals in Houston has upset the apple cart again.  In an opinion recently issued, it held that the 45-day deadline for filing judicial review lawsuits to overturn a final decision of the Division is a statute of limitations, not a jurisdictional requirement.  This decision is in contrast to the opinions of other courts of appeal.  What this means is that late-filed judicial review lawsuits would not be dismissed on the basis that the court lacked the power to hear the case – a jurisdictional argument which would be an absolute bar to bringing the case.  Instead, the Court held that the 45-day deadline is a statute of limitations, with the result that the party bringing the case could argue that the statute of limitations was tolled based on the particular circumstances of the case, such as where Section 16.064 of the Texas Civil Practices and Remedies Code provisions might apply. Chicas v. Texas Mutual Insurance Company, 522 S.W.3d 67 (1st Dist. Houston) 2017.

Governor Abbott appointed Kent Sullivan to be the new Texas Commissioner of Insurance for a term to expire February 1, 2019.  Commissioner Sullivan has impressive qualifications and experience, and we look forward to his 25 years of private practice experience, his prior service as a justice on the Fourteenth Court of Appeals and his practical experience as a state district court judge being a positive influence on the insurance industry in Texas.

DWC brought Tim Riley on as Deputy Commissioner of Compliance and Investigations.  We first met Tim – more years ago than we want to admit– when he represented the old TWCC  doing hearings on medical cases before he went over to Texas Mutual to be vice president of Special Investigations.  We expect that the agency’s newly created Compliance and Investigations program area will benefit greatly from his vast and effective experience in enforcement efforts and criminal prosecutions.

Of note is that DWC closed the comment period on September 1st  for its informal working draft of new rules for the Designated Doctor Program.  The stated intent of DWC is to “improve  program transparency, more efficiently recruit and retain doctors, and help ensure that the most qualified doctors are selected for each Designated Doctor examination.” We await formal rule proposal to see what change it will bring to this cumbersome process.

Question: Will the DWC allow its Designated Doctors to evaluate injured workers through telemetrics?

Question: Will DWC bring telemetrics into the dispute resolution process?

The DWC intends to expand the use of telemedicine in Texas’ workers’ compensation system.  An informal rule proposal is being floated to system participants for comment.  The reasoning behind this change is that the agency wants to be proactive, and believes that this will make the system more efficient by saving employers and injured workers travel time and expense without sacrificing quality of care.  It used to be that under the Medicare reimbursement restrictions telemedicine could only be used in underserved areas.  DWC is using as its justification the 2017 bill passed by the Texas Legislature which addressed telemedicine in Texas to expand the use of telemedicine.   The Texas Medical Board is in the process of drafting rules to implement the legislative changes.  DWC’s rules are expected to be in line with those rules.

We found one company with sites in Texas – XstremeMD– that provides telemedicine services.  A visit to their website might be worth your while in order to see the facilities they currently maintain in Texas.  No doubt when this concept becomes widely accepted by insurance carriers and injured workers we will see a larger presence of these companies.  We are curious how existing workers’ compensation doctors will react to these changes.

The proposed DWC rule references the Texas Occupations Code Chapter 111, which allows the Texas Medical Board to adopt rules necessary to ensure the delivery of good care, prevent abuse and fraud, ensure adequate supervision of non-physician health care professionals who provide telemedicine medical services, and describe when an actual face-to-face consultation between a patient and his physician must take place.   A preliminary review of the Texas Medical Board rules shows that the services have to be performed at an “established medical site” and may be used for all patient visits, including initial evaluations, to establish a physician-patient relationship, regardless of whether the physician is physically present at the telemedicine site.  A “distant site provider” may delegate tasks and activities to a “patient site presenter.”  The patient site presenter must be licensed or certified in Texas to perform health care services  – we assume this would most likely be physician assistants or nurse practictioners, but that remains to be clarified.  The rule has other provisions, such as notice and privacy requirements, but the gist of the concept is that medical services will be provided by telemetric means.  We will be watching the rules closely to see what the DWC has in mind that is specific to workers’ comp.  Jane Stone, Stone Loughlin & Swanson, LLP

The National Workers' Compensation Defense Network (NWCDN) is hosting an excellent conference in Atlanta on October 18 and 19.  It is by invitation only, so if you are interested in attending, please contact Jane Stone atjstone@slsaustin.com.

Another attorney pled guilty to conspiracy to commit health care fraud, admitting to a scheme under which he received more than $26 million from the US Department of Labor Office of Workers’ Compensation Program.  Dallas attorney, Tshombe “Shaun” Anderson, admitted that he and four family members ran a durable medical equipment billing scheme involving patient information taken from Union Treatment Centers.  Anderson had previously worked for Union Treatment Centers as an attorney.  The scheme involved duplicate billing for unwanted durable medical equipment that was not medically necessary, using outdated medical information.  Anderson faces sentencing on 11/19/17, and faces up to 10 years in prison and restitution.  In addition, $8.4 million was seized from 25 bank accounts associated with him, his firm and his family, as well as two houses, several luxury cars and almost $700,000 in cash seized from his home and that of his sister.  It appears that the powers that be are starting to take workers’ compensation fraud seriously!

DWC has lost two more long-time Hearing Officers. Carol Fougerat is leaving the San Antonio Field Office and Patrice Squirewell-Jean is leaving the Houston East Field Office.  These two ladies have been Hearing Officers for many years.  Their retirement follows a continuing pattern of attrition of experienced Hearing Officers at the DWC.

On 8/1/17, DWC announced changes to the form DWC-45 to allow system participants to request to proceed directly to a contested case hearing.  The DWC explained that parties are not required to participate in a BRC when the DWC determines that mediation would not prove effective to resolve the dispute or that the overall policy of the Workers’ Compensation Act would be advanced by proceeding directly to a contested case hearing.  The stated goal of this change is to “focus BRC time and resources on disputes in which participation is thought to be the most productive.  The revised form can be found athttp://www.tdi.texas.gov/forms/form20numeric.html.