Hon. Thomas P. O'Reilly
Chairman
Maryland Workers Compensation Commission
10 E. Baltimore Street
Baltimore, MD 21202
FAX: 410-864-5301

Re: Proposed Regulations

Subj: Certified Provider Networks (CPN)

Dear Chairman O'Reilly:

Please accept these written comments in the spirit with which they are presented - to support appropriate, quality health care for injured workers in a timely manner. The members of the Maryland Workplace Health Care Association, Inc. (MWHCA) sincerely believe that the quality of health care for injured workers should always be our "primary goal" and never be compromised to further any other objective regardless of how compelling. While our members are supportive of efforts that improve health care for injured workers, any significant changes such as the proposed regulations (CPN) must never threaten our ability to serve the primary goal.

As you suggested, following the March 7th Workers' Compensation Oversight Committee, I asked a small but representative group of our members to review the proposed regulations and provide the Workers' Compensation Commission (Commission) with an "objective evaluation and constructive suggestions."

After carefully reviewing the proposed regulations for CPN, the MWHCA members who reviewed the proposed regulations reached the unanimous conclusion that the Commission will jeopardize the primary goal if it were to enact the CPN regulations in question. We sincerely hope that these comments, as well as those you may receive from other interested parties will dissuade the Commission from implementing CPN.

The MWHCA offers the following comments in support of our position:

STATEMENT OF PURPOSE

Before proposing a change of this magnitude, the Commission should issue a public statement of purpose. In this case, the statement should describe specific shortcomings in the current method of providing medical care and explain how the desired changes would resolve those deficiencies. Done effectively, the Commission would minimize confusion, promote cooperation and avoid misunderstandings that foster resistance.

CALIFORNIA?

The proposed CPN regulations are taken, in large part, from the recently enacted CPN regulations in California. CPN in California is widely regarded as a desperate attempt to rescue a dysfunctional workers compensation system in a state with a history of abuse and corruption relative to workers' compensation medical care. By comparison, workers' compensation in Maryland is a model of virtue and efficiency. Keep in mind that CPN in California is so recent that it is not possible to say whether it can or will succeed. The MWHCA advisory committee also wondered why significant portions of the California CPN regulations (i.e. compliance and claimant protections) were not incorporated into the Commissions proposal.

TECHNICAL/ADMINISTRATIVE CONSIDERATIONS

To fully implement and properly administer the proposed regulations will require significant technical and administrative resources that are currently not available to the Commission. We also believe that the organization of the Commission is entirely unsuited for such an ambitious undertaking.¹ If enacted, CPN would seriously undermine the Commission's existing responsibilities and create unintended conflicts. To illustrate this point, we have attached the organization chart for the California Department of Industrial Relations, of which the California Commission on Health and Safety and Workers' Compensation is an integral part. As the chart indicates, California segments the functions of administration, adjudication, regulation and enforcement. By contrast, the Commissioners in Maryland assume responsibility for all these functions.

AUTHORITY

The Workers' Compensation law grants the Commission broad latitude to implement policies and regulations for the provision of health care.² However, the Commission should anticipate that any regulation that discards a long standing policy of employee choice of medical provider will attract widespread criticism, initiate time consuming legal challenges and foster highly charged legislative initiatives to restrict the Commission's authority and/or restructure the Commission.³

POTENTIAL FOR CONFLICT

The Commission should carefully examine the unintended consequences of CPN operations that may jeopardize the "primary goal." As proposed, the Commission would transfer its responsibility to insure appropriate, quality health care to the CPN, which the insurer may own. It would be unrealistic to assume that the insurer would not exert a significant amount of direction over the care to be provided by virtue of its authority to approve payments to the CPN. The proposed regulations also transfers the Commission's authority to intercede in matter regarding medical payments to the "appropriate Court." Notwithstanding the requirement that CPN provide 'Information" to employees and designate a "Contact Person," the desire of the CPN to control costs also constitutes a conflict of interest, which places the injured worker at a serious disadvantage. Rather than prohibit this conflict, the proposed regulations only require the Commission to "consider:⁴ An affirmation by the [CPN] that the physician compensation is not structured in order to ... restrict access to medical care."

GUIDELINES [verses] MEDICAL JUDGEMENT

In an ideal system, health care providers should determine what health care is appropriate. However, that ideal would be eroded by the proposed regulations, which incorporate specific practice guidelines⁵ to determine the "reasonable and necessary treatment to injured workers." The guidelines and standards in question use information and data to approximate the average severity of an injury and level of care required. In our opinion, these guidelines should not be used to determine appropriate medical care.

Of greater concern is the realization that incorporating these guidelines replaces the primary health care provider's judgement in determining the most appropriate medical care for an injured worker. In many situations the CPN would be permitted to use these guidelines to restrict access to appropriate health care. Workers' with injuries that fall outside any of the selected guidelines⁶ will be at the greatest risk because such treatment will require the primary health care provider to obtain "Prior Authorization." As proposed, a representative of the CPN management - not the primary health care provider, would approve any health care requiring a "Prior Authorization."

It is a matter of significant concern to MWHCA members that the CPN representatives who will interpret and apply the guidelines in question need not be health care professionals. The Commission does not currently require nor do the regulations in question propose that such representatives be qualified, trained or certified to interpret the selected guidelines. The same is true for many other important decisions regarding an injured worker's health care. Complicating matters even more is the fact that most CPN representatives will be located in regional offices outside Maryland.

As proposed, the process for resolving disputes regarding denial of care that lay outside the selected guidelines (as determined by the CPN management) must be submitted for "Internal Dispute Resolution" before it can be appealed to the Commission. The way this process for dispute resolution is structured implies that the CPN is acting with the authority of the Commission on a dispute that arises out of its own decision to deny medical care, which care may have been recommended by a CPN health care provider. The proposed regulations provide no safeguards to protect the injured worker or time limits within which these "Dispute Resolutions" must be resolved. Only after the CPN has denied the recommended care on two occasions (which could involve significant delays) can the injured worker appeal to the Commission.

CONCLUSION

MWHCA members are concerned that the proposed regulations would sanction unreasonable delay, restrictions and impediments for injured workers' access to appropriate health care. Furthermore, reliable safeguards to preclude abuses and conflicts are insufficient or non-existent

The proposed regulations permit CNP applications and certifications of compliance to be automatically approved unless the Commission acts to within 60 days. MWHCA members believe that such procedures would seriously compromise the integrity of CPN.

We realize that these comments are general in nature; however, MWHCA is prepared to offer a significant amount of detailed information and research in support of our conclusion. Whenever the Commission is willing, MWHCA will be prepared to discuss these matters in more detail. In the meantime, please call any time you require additional information or assistance.

Sincerely,

Christopher B. Costello
Executive Director

Cc:

Hon. Robert L. Ehrlich, Jr., Governor

Hon. Thomas V. "Mike" Miller, Jr., Senate President

Hon. Michael E. Busch, House Speaker

Hon. Thomas McLain "Mac" Middleton, Chairman - Senate Finance Committee

Hon. Derrick Davis, Chairman - House Committee on Economic Matters

Hon. Nathaniel Exum, Senate Chairman - WC Oversight Committee

Hon. John F. Wood, Jr., House Chairman - WC Oversight Committee

Maryland Chamber of Commerce

Maryland Retailers Association

Maryland Orthopaedic Association

Maryland Self-Insurers' and Employers' Compensation Association

Maryland State Medical Society

Maryland State and DC AFL-CIO

Maryland Trial Lawyers Association

NFIB - Maryland