State News : Texas

The US Drug Enforcement Administration (DEA) has reclassified hydrocodone combination

drugs from Schedule III to Schedule II in the Schedule of Controlled Substances, effective

October 6, 2014. This reclassification change impacts all physicians and pharmacies, including

drugs prescribed and dispensed in the Texas workers’ compensation system. Hydrocodone

combinations are the most frequently prescribed drugs in the Texas workers’ compensation

system.

This change has no direct impact on the application of DWC’s pharmacy closed formulary.

However, prescriptions for Schedule II drugs have specific requirements, and the

reclassification will result in changes to the physician prescription process for hydrocodone

combinations. For example, physicians may not delegate to advance practice nurses and

physician assistant’s authority to prescribe these drugs outside of a hospital or hospice setting,

nor may they “call in” prescriptions for these medications to pharmacies (except in

emergencies, in which case oral transmission must be followed up with written prescription

within seven days). In addition, physicians must use official prescription pads from the Texas

Department of Public Safety (DPS) for written prescriptions; or if e‐prescribing, must use a

certified Electronic Prescribing of Controlled Substances (EPCS) vendor. Most significantly in

our context, physicians may not refill prescriptions of these drugs without a patient visit or

consultation, and prescriptions may be issued for a maximum 90‐day period (three 30‐day

prescriptions to be written at one time). Refills are to be filled on a “not before date” written

on the prescription note by the prescriber. Claimants and pharmacies are encouraged to work

with the physician to resolve any issues regarding these changes when prescribing or

attempting to fill prescriptions for hydrocodone combinations.

Takeaway: Hydrocodone medications will become triple‐script medications, and an injured

worker will have to have a doctor’s office visit to get the script.

The Division has increased the maximum weekly benefit rate for income benefits from $850

to $861, and has increased the minimum weekly benefit rate from $127 to $129. The new

weekly benefit rate maximums and minimums are applicable for dates of injury from

October 1, 2014 through September 30, 2015.

The new maximum and minimum weekly benefit rates will not affect dates of injury prior to

October 1, 2014, as the maximum weekly income benefit in effect on the date of injury is

applicable for the entire time that the benefit is payable. Tex. Lab. Code Section 408.061(g).

A table showing maximum and minimum weekly benefit amounts for dates of injury occurring

from January 1, 1991 through the present is available on the Texas Department of Insurance

website at http://www.tdi.texas.gov/wc/employee/maxminbens.html.

It is a generally recognized fact that the statute and Division rules provide insurance carriers

an absolute right to an RME to address an opinion of a designated doctor. Tex. Lab. Code

Section 408.0041(f); 28 Tex. Admin. Code Section 126.5. However, in some cases, Hearing

Officers are declining to keep the record open to allow opportunity for the insurance carrier

to obtain a post‐DD RME to address a newly amended DD report (received in response to a

Hearing Officer’s request for clarification made in the course of an ongoing proceeding), on the

basis that the carrier “failed to use due diligence.”

For example, a recent Appeals Panel decision addressed a situation in which the self‐insured

had tried to obtain an RME addressing a DD’s amended report. The Hearing Officer has sent

the DD a letter of clarification, which led to the DD re‐examining the Claimant and amending

his prior report with respect to MMI/IR. The Hearing Officer gave the parties the opportunity

to respond to the DD’s report, and the self‐insured responded and requested additional time

so that an RME doctor could be obtained. The Hearing Officer denied the self‐insured’s request

to hold the record open for an RME report, citing that the self‐insured “failed to exercise due

diligence in seeking and obtaining an alternate IR although the self‐insured was fully aware

that the designated doctor had not rated the entire compensable injury prior to the CCH.” The

self‐insured appealed, contending it was denied procedural due process because it was not

granted additional time to obtain an RME doctor to opine on the DD’s amended report. The

Appeals Panel found the Hearing Officer did not abuse his/her discretion in denying the selfinsured’s

request to leave the record open to obtain the RME. Appeals Panel Decision (APD)

140722, decided June 5, 2014.

We could not find any “due diligence standard” in the rules or statute allowing for post‐DD

RMEs. We know, because we looked. Nevertheless, we must live with the cards we are dealt,

and are including this case in this month’s newsletter as a cautionary tale: in any case in which

you believe a post‐DD RME will be necessary or helpful to the carrier’s case, it’s best to

proceed with the request as soon as possible to ensure the carrier’s statutory right to an RME

is preserved. This is always good practice, regardless.

The Office of Injured Employee Counsel is holding its annual stakeholder meeting in a few days.  A key part of the agenda is OIEC’s legislative agenda for the 2015 Legislative Session. Not surprisingly, OIEC’s wish list would create considerable expense to Carriers. Here are the changes OIEC wants –

Expand LIBs – OIEC wants a statutory amendment clarifying that a Claimant qualifies for LIBs if he or she loses use of a body part as a result of a compensable injury even if the Claimant’s compensable injury was not to that body part. 

Increase TIBs Amount – OIEC wants increases in TIBs calculations: (1) increase in the benchmark earning rate from $8.50 an hour to $12.40 an hour, (2) increase TIBs from 70 percent to 75 percent of the AWW for a Claimant that earn $12.40 an hour or more, and (3) increase TIBs from 75 percent to 80 percent of AWW for a Claimant that earn less than $12.40 an hour.

Limit Carrier Ability to Dispute Extent of Injury – OIEC wants a deadline to dispute extent of injury placed in the statute. It wants a Carrier to have to dispute extent of injury within 60 days of receiving written notice that the injury extends to include a certain body part or that defense would be waived. The intention of this legislative change is to codify a 60 day waiver period in extent of injury cases, contrary to the Supreme Court’s decision inState Office of Risk Mgmt. v. Lawton.

Same Venue for Judicial Review of Medical Fee Dispute Decisions and BenefitDecisions

– OIEC wants the venue to be the same for judicial review of a medical fee dispute decision as it is for a benefit decision. That is, judicial review of both types of proceedings should be filed in county where the employee lived at the time of injury or death.

Provide Attorney’s Fees to Claimants for Medical Necessity Dispute Cases–

OIEC wants Carriers be liable for Claimants’ attorneys’ fees incurred when a Claimant prevails in a judicial review of a medical necessity dispute, if the injured employee prevailed administratively at the Appeals Panel.

Carriers Should Pay for Claimant’s Expert Evidence of Causation– OIEC wants to require Carriers to pay for treating doctors to provide opinions on causation through reports or testimony at the CCH, or if the treating doctor is not available, to pay adesignated doctor to provide such report or testimony. Alternatively, OIEC wants a legislative grant to give OIEC money to hire experts.

You might have to disgorge four times the amount of benefits withheld from the injured worker.  An alternative to statutory workers’ compensation is a plan under the Employee Retirement Income Security Act – an ERISA plan provided to an employer by a plan insurer. Like statutory comp, an ERISA plan may provide for disability benefits for an on the job injury. Unlike statutory comp, however, an insurer who denies disability benefits may be ordered to provide withheld disability benefitsand to disgorge any “profits” on the withheld benefits under an “appropriate equitable relief” provision of the ERISA statute. The U.S. Court of Appeals for the Sixth Circuit recently upheld an award of withheld benefits in addition to disgorgement of four times the amount of withheld benefits representing the insurer’s “profits” on the withheld benefits. The trial court found the insurer breached its fiduciary duty simply by denying benefits. Considering the insurer’s potential exposure for disgorgement of profits as a claims handling expense, statutory comp may be a less risky option Texas.

Rochow v. Life Ins. Co. of N. Am., No. 12-2075, 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013).

The Appeals Panel recently reversed a Hearing Officer’s determination that the first certification of MMI/IR provided in 2010 did not become final because the Hearing Officer determined in 2013 that Claimant’s injury extended to include additional, unrated conditions. The preamble to Rule 130.12 warns parties not to delay in timely disputing the first certification of MMI/IR pending resolution of an extent of injury dispute, because such resolution may occur after the 90-day period expires. In this decision, the Appeals Panel noted “there is no provision in [the Act or Rules] that provides that the exclusion of a condition in an assignment of IR constitutes an exception to finality.” The Appeals Panel held that subsequent resolution of the extent of injury dispute is not, in and of itself, an exception to finality. The Appeals Panel did not foreclose the possibility that an exception to finality may exist where a Claimant does not receive adequate treatment for the entire injury prior to the first certification of MMI because of the extent of injury dispute.

Appeal No. 132594-s, dated Jan. 3, 2014.

The Appeals Panel considered whether a designated doctor properly assigned IR based on range of motion (ROM) measurements of a Claimant’s right knee. In his report, the DD recorded 100 degrees of flexion and 10 degrees of flexion contracture of the knee. According to Table 41 of the Guides, these measurements correspond to 4% whole person impairment for flexion and 8% whole person impairment for extension/flexion contracture. The DD did not add the two whole person impairments together (4% plus 8%), but, rather, the DD assigned a whole person IR of 8%. The issue on appeal was whether the AMA Guides required the DD to combine the whole person IR of each angle of the knee joint. The Appeals Panel concluded the AMA Guides do not require the ROM deficits to be combined to increase the impairment for a single joint. Rather, it was within the DD’s discretion as a matter of medical judgment to not combine the different angles of loss of ROM of Claimant’s knee. The DD’s 8% IR was in accordance with the Guides.

Appeal No. 132734, dated Jan. 9, 2014.

Point-of-service drug testing is becoming more common. If a provider decides to do urine drug tests on a patient, the ODG evaluates the need for testing based on the risk of adverse events or of drug misuse by the Claimant. Before paying, the Carrier should look for documentation of a risk assessment, as well as evidence of the reasoning behind the frequency of the testing. For Claimants with a low risk of adverse events or drug misuse, the ODG recommends random testing no more than twice a year. For Claimants at intermediate risk, the ODG recommends random testing 3 to 4 times a year. Claimants with high risk may be tested at every other, or even at every, office visit.

We have seen a few recent cases where Carriers are being charged for designated doctor appointments missed or rescheduled by Claimants. The DWC medical fee guidelines do not permit a designated doctor to bill a Carrier for a rescheduled or missed appointment. DWC Rule 134.204.  Bills that invoice Carriers for a fee for missed or rescheduled appointments should be denied.

The DWC recently circulated a memo reminding system participants that Rule 127.1 requires parties submitting Requests for Designated Doctor Exams (DWC 32s) to send a copy of the DWC 32 to the opposing party at the same time the document is filed with the DWC. The DWC reports that some system participants are not exchanging DWC 32s. As part of a new “customer service initiative” to address the issue, the DWC will begin automatically sending to the injured employee a copy of any DWC 32 filed by a Carrierprior to sending the order for the designated doctor exam. Curiously,

Claimants’ frequent failures to exchange DWC 32s with Carriers is not mentioned.