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

Re: Medical Fee Guide

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 must never threaten our ability to serve the primary goal.

The reason stated by the Commission for the introduction of these regulations was the desire to address an admitted access to care concerns created by the Commission's 2004 regulations. Those regulations revised the Medical Fee Guide using a Resource Based Relative Value System (RBRVS) using a "cost neutral," single multiplier. It is our position that the proposed regulations, rather than correcting the disruption, will significantly exacerbate the concerns related to access to health care.

After carefully reviewing the proposed regulations for Maryland Medical Fee Guide, the MWHCA members must conclude that the Commission will jeopardize the primary goal if it were to enact the proposed regulation. We sincerely hope that these comments, as well as those you may receive from other interested parties will dissuade the Commission from implementing the proposed changes.

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

PUBLIC NOTICE

The notice in the Maryland Register was incomplete and misleading.

STATEMENT OF PURPOSE

When 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 those misunderstandings that foster resistance. In this instance, the Commission has proposed dramatic, some would say punitive, measures to address concerns that have not been articulated, with policies and procedures that lack specificity. Possibly the Commission has considered the details of how why these policies are needed and how they will be implemented and administered; however, the individuals to be regulated are completely at a loss to understand what those details might be and are left to speculated in the dark. Such speculation fosters fear and suspicion.

TECHNICAL/ADMINISTRATIVE CONSIDERATIONS

The proposed regulations will require the Commission to maintain a registry of providers, which must be updated and disseminated virtually every working day to be effective. Likewise, the Commission must conduct a timely review and approval of agreements that could number in the tens of thousands, all of which will be updated on a frequent basis. All of these time consuming tasks will constitute a significant, additional administrative burden, which will require manpower and resources that the Commission has already indicated are not available for addressing current administration priorities. If the Commission is unable to complete each of these tasks in a timely fashion, it will create significant hardships for the providers and claimants.

If it is the intention of the Commission to avoid the necessity for additional resources to administer these requirements by limiting oversight to matters as they arise in administrative hearings, the concerns of health care providers will be compounded. Absent specific instructions, insurers and claims adjusters would be free to interpret the regulations as best suits their interests. In almost every instance, the health care provider would be placed at an unfair disadvantage. While the Commission may not be concerned about any distress such a situation might create for health care providers, it should be concerned about how such difficulties may limit the injured workers' access to care.

AUTHORITY

The Workers' Compensation law grants the Commission broad latitude to implement policies and regulations for the provision of health care. However, the Commission should anticipate that any regulation that in any way threatens to interfere with Maryland's well-established policy of employee choice of health care provider would attract widespread opposition. Such opposition will initiate time consuming legal challenges and foster highly charged legislative initiatives to restrict the Commission's authority and/or restructure the Commission.

As recently as April of 2005, the Maryland General Assembly requested and received advice from the Attorney General that the Commission would be acting beyond its authority if it altered injured workers' choice of health care providers. It may well be that these regulations, while they may not specifically state such restrictions, will have the effect of substantially altering injured workers' access to a preferred health care provider. The specific caution in the Attorney General's letter reads: "An agency's power to alter the common law right of an employee to choose his or her own physician would require the clearest of legislative authority not presently found in the Workers' Compensation Law." (Emphasis added)

These vague regulations will empower claims adjusters, who will interpret these regulations in the absence of any specific instructions from the Commission, to deny payment to health care providers. Power to deny payment for health care is tantamount to the power to deny the injured worker choice or any preference in selecting a health care provider. The following four examples explain how these proposed regulations will "alter" an injured worker's access to a chosen health care provider:

(1) The requirement that an "application" for a health care fee that differs from the existing Medical Fee Guide be "approved [by the Commission] prior to the date [health care] treatment is rendered." It is unlikely that an insurer would enter into an agreement with a health care provider chosen by the injured worker. In addition, the Commission is not likely to provide documentation indicating that any such agreement has been "approved" even if such an agreement existed. Absent such documentation, insurers (claims adjusters) are free to deny or delay payment for the health care in question.

(2) Because insurers will not be permitted to compensate any health care provider who is not "registered," it will be less likely that an injured worker will be able to obtain care from a primary health care provider they choose. In many, if not most instances, primary health care providers do not routinely provide health care for workers' compensation and are therefore unlikely to be "Registered" with Commission at the time health care is provides. As a result, primary health care providers will be denied payment for services and discouraged from providing care for workplace injuries.

(3) Health care providers such as pharmacists or emergency room providers may not be registered which may cause delays and other difficulties for injured workers seeking care.

(4) The Workers' Compensation statute does not prohibit insurers from requiring health care providers to obtain approval before health care services are provided. Consequently, it has become the prevailing practice among health care providers. Currently insurers (claims adjusters) often delay payments or refuse to pay for health care services that are not pre-authorized. Such denial can occur even when the Commission has ordered the health care services in question. The proposed regulations will add another layer of bureaucracy that will permit insurers to withhold or delay pre-authorization for the injured workers' chosen health care providers.

CONCLUSION

MWHCA members are reasonably concerned that the proposed regulations would sanction unreasonable delay, restrictions and impediments. Such disruptions will have an adverse, unfair impact on the compensation due to workplace health care providers as well as the injured workers' access to appropriate health care. Notwithstanding any assurance from the Commission to the contrary, reliable safeguards to preclude such abuses and denials are non-existent.

Sincerely,

Christopher B. Costello
Executive Director