town hall meeting 9/30/2016 · 2016. 10. 27. · town hall meeting 9/30/2016 page 4 court reporters...

TOWN HALL MEETING 9/30/2016

COURT REPORTERS OF LOUISIANA, LLC www.courtreportersla.com PH: 225-201-9650 FAX: 225-201-9651

TOWN HALL MEETING

MEDICAL TREATMENT GUIDELINES

Held on Friday, September 30, 2016

At the Louisiana Department of Insurance

Plaza Hearing Room

1702 N. 3rd Street

Baton Rouge, Louisiana

REPORTED BY: KELLY S. PERRIN, C.C.R.

*********************************************

COURT REPORTERS OF LOUISIANA, LLC

9614 BROOKLINE AVENUE, SUITE A

BATON ROUGE, LOUISIANA 70809

PHONE: (225) 201-9650 * FAX: (225) 201-9651

E-MAIL: [email protected]



1 I N D E X

2 PAGE

3 CAPTION 1

4 APPEARANCES 3

5 REPORTER'S CERTIFICATE 126

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1 APPEARANCES:

2 JUDGE SHERAL KELLAR

3 JUDGE PAM LARAMORE

4 JUDGE DIANE LUNDEEN

5 DR. JASON PICARD

6 DENISE LEE, MEDIATOR

7 FREDA CHAUCER, MEDICAL SERVICES SECTION

8

9 SPEAKERS FROM AUDIENCE:

10 JASON FERRIS, INJURED WORKERS PHARMACY

11 DANIELLE JAFFEE, INJURED WORKERS PHARMACY

12 TERRI FONTENOT, NOVARE

13 MELINDA ROBERTSON, NEUROMEDICAL CENTER

14 PAUL PROCELL, WORK KARE

15 JONATHAN MITCHELL, ATTORNEY, DEGRAVELLES,

16 PALMINTIER, HOLTHAUS & FRUGE'

17 CHAS "CHUCK" DAVOLI, ATTORNEY, DAVOLI & KRUMHOLT

18 BRETT GROVES, AHCS

19 RANDY MIRE, GEM

20 CRISTEN TARKINGTON, CAPITAL CITY CHIROPRACTIC

21 WILL GREEN, LADA

22 DR. PETER ZIMMERMAN, LMC

23 BRIAN BLACKWOOD, DOJ

24 ROBIN KRUMHOLT, DAVOLI & KRUMHOLT

25 BRAD PRICE, ATTORNEY, PRICE LAW FIRM



1 P R O C E E D I N G S

2 JUDGE KELLAR:

3 Good afternoon. I'm Sheral Kellar. I'm

4 the Director of the Office of Workers'

5 Compensation. I hope everybody signed in. If

6 you did not, please do so.

7 I want to thank you all for coming. I

8 was recently appointed Director of the Office

9 of Workers' Compensation after having served

10 as the Workers' Compensation Chief Judge for

11 17 years. And it had not been unnoticed

12 during my tenure as Chief Judge, nor as the

13 Director that the medical treatment guidelines

14 need some work. And so we have been going

15 around the state for the last couple of weeks

16 to hear from the folks who deal with the

17 medical treatment guidelines who do the 1010s,

18 the 1010As, and 1009s, the 1008 appeals to try

19 to find out what problems you're having with

20 navigating that system.

21 We want to make it work for you. We

22 understand that some things are broken, and we

23 want to fix them. But you're the guys who are

24 in the trenches. And so we want you to have

25 an opportunity to tell us what you think we



1 might be able to do better, what you think we

2 might throw out, what you think we might just

3 tweak. I have some staff from the Office of

4 Workers' Compensation and from District 5, the

5 Workers' Compensation Court here with me today

6 who are going to listen to your grievances.

7 And we will maybe not be able to give you the

8 answers that you like, but maybe we can give

9 you some direction of how to navigate the

10 system better.

11 I have on my immediate left the Chief

12 Judge, Diane Lundeen. To her left is the

13 Medical Director, Dr. Jason Picard. Then, we

14 have Pam Laramore, the judge in District 5,

15 the Baton Rouge office. Next to Judge

16 Laramore is Denise Lee, the Mediator in the

17 District 5 Office. And next to her is Freda,

18 who is a member of the Medical Services

19 section in the Baton Rouge office.

20 Freda actually sees your documents when

21 you file a 1009 appeal to the Medical

22 Director. So as we proceed through this

23 afternoon, she's going to tell you some of the

24 things that she sees that would help her; that

25 she sees and does not see that would help her



1 to put those files together better before they

2 are sent to the Medical Director for his

3 review.

4 On that table, we also have some

5 statistics from the medical services section

6 from March 2016 to date. We chose March 2016

7 because that's the date that Dr. Picard became

8 the full-time Medical Director. And as you

9 can see, he has a 70 percent approval rate.

10 When you file a 1009 appeal with him, he

11 approves 70 percent of the requests for appeal

12 that he receives and 30 percent of those he

13 denies.

14 I'm going to give him an opportunity to

15 address you as well. And he will tell you

16 some of the things that he sees that cause

17 those denials and some of the things that he

18 sees which assists him in approving your

19 request for medical treatment.

20 As you can see, we have a court reporter

21 here today. Throughout the state, we have

22 been taking recorded statements of these Town

23 Hall Meetings, because what we want to do is

24 at the conclusion of this one, our last one,

25 we're going to go back to the office and read



1 all of the comments that you've made about the

2 problems you're having with the medical

3 treatment guidelines process and use those

4 comments to try to make it better for you. We

5 want the medical treatment guidelines to be

6 user-friendly. We do know that there are

7 problems.

8 So we have a court reporter who is going

9 to take your comments. And we have Michael

10 Pippins, who is an IT guy in the back of the

11 room. Michael has a handheld mic. And when

12 you speak, I'm going to ask you to first

13 identify yourself, tell us who you represent,

14 and then speak slowly and clearly so that the

15 court reporter can get your comments down.

16 If you have cell phones, I'm going to ask

17 you to put them on silent, vibrate, or stun,

18 whichever you prefer. In deference to

19 everyone in the room who may want to make a

20 comment, I'm going to ask you to keep your

21 comments to three minutes, but you may speak

22 multiple times.

23 But just don't hog the mic, just three

24 minutes and then let's move on to the next

25 person, and then we can come back to you.



1 We're not going to necessarily answer all

2 of your questions today. And if we do answer

3 some, there may be some answers that you don't

4 like. But this is not an opportunity for us

5 to -- this is an opportunity for you to talk.

6 You guys are in the trenches. You do this

7 every day. I see some attorneys in the room.

8 I see some health care providers. You're

9 dealing with the 1010 process every day, so

10 you know things from your perspective that we

11 don't know.

12 It's amazing that throughout these Town

13 Hall Meetings, some of the problems have been

14 repeated. And I'm sure we're going to hear

15 some of the same things that we've heard in

16 other cities. But we've also heard new things

17 as well.

18 So this is your opportunity to talk to

19 us. Some of you call us individually, but now

20 you have our undivided attention. And you

21 will not get this always, so I ask you to take

22 advantage of this opportunity.

23 So with that, I will open up the floor.

24 Yes, sir? Mic?

25 DR. ZIMMERMAN:



1 My name is Peter Zimmerman. I'm a

2 practicing physician in Baton Rouge. I've got

3 a number of questions. But the first one that

4 I'd like to address is, when carriers check

5 off the under box and list as their reason

6 that they're still investigating whether or

7 not claims are job related or not, these

8 investigations seem to go on for months and

9 months in an attempt, at least in my

10 understanding, to starve the patients into

11 settling. I'm wondering what recourse we have

12 and how best to address that situation?

13 JUDGE KELLAR:

14 This is on the 1010 form, and you have, I

15 think, three boxes. One says, for causation.

16 Are there --

17 DR. ZIMMERMAN:

18 Not in accordance with the medical

19 guidelines, not job related, not compensable,

20 and other.

21 JUDGE KELLAR:

22 Okay. If -- and you submit it to the UR;

23 right?

24 DR. ZIMMERMAN:

25 We submit a 1010 form. The check off box



1 comes back, other; the investigating -- still

2 investigating compensability of the claim, and

3 that goes on for months in an attempt to get

4 to a 1008 without ever having to address

5 medical guideline issues.

6 JUDGE KELLAR:

7 So is your request for treatment denied

8 at that point, because other is checked off?

9 DR. ZIMMERMAN:

10 Other takes it out of the medical

11 treatment guidelines and into a 1008 issue.

12 And but it's -- it's not that they've

13 challenged compensability. They have said, we

14 are still looking into this. But it goes on

15 forever.

16 JUDGE KELLAR:

17 Well, what we've heard around the state

18 is that not that specific scenario, but we've

19 heard the scenario where the 1010 moves

20 through the process to approval by the Medical

21 Director.

22 DR. ZIMMERMAN:

23 No, ma'am.

24 JUDGE KELLAR:

25 By the Medical Director.



1 DR. ZIMMERMAN:

2 It's not allowed to.

3 JUDGE KELLAR:

4 I have no -- I understand.

5 DR. ZIMMERMAN:

6 We don't get an --

7 JUDGE KELLAR:

8 I understand.

9 DR. ZIMMERMAN:

10 Okay.

11 JUDGE KELLAR:

12 I understand. It moves through the

13 process to approval by the Medical Director,

14 and then the payor raises the issue of

15 causation. I'm not aware that the office is

16 receiving those that say other.

17 Have you seen that, Freda?

18 MS. FREDA CHAUCER:

19 In the past.

20 JUDGE KELLAR:

21 Use the mic.


23 Not recently since the people have been

24 investigating the Medical Director have we

25 seen under investigation. If so, the front



1 desk, who receives the 1009, if it's being

2 sent back so that they're rejecting it on the

3 front end, have you gotten that rejection

4 recently on that?

5 DR. ZIMMERMAN:

6 Within the last two months, yes, ma'am.


8 I think it is --

9 DR. ZIMMERMAN:

10 I can identify the individual carriers if

11 you'd like. I know exactly who they are.

12 LUBA does that and LCI does that. So it's

13 very specific and it's a very clear tactic

14 that they take.

15 JUDGE KELLAR:

16 I was not aware that when the box other

17 is checked that it's sent back to you, because

18 we have a system now where if the 1009

19 appeal -- because I'm assuming that's what you

20 mean, the appeal?

21 DR. ZIMMERMAN:

22 No, ma'am. I mean the 1010.

23 JUDGE KELLAR:

24 Okay. See, yeah, it's --

25 DR. ZIMMERMAN:



1 We're not allowed to get to a 1009 at

2 that point because it's not --

3 JUDGE KELLAR:

4 Okay. Then --

5 DR. ZIMMERMAN:

6 It's not within the medical guidelines.

7 It's taken out of the medical guidelines by

8 checking other. And the prior director viewed

9 that as -- viewed that as non-compensable or

10 putting compensability at issue.

11 JUDGE KELLAR:

12 I don't know what that means, I really

13 don't. But at that point, I think your only

14 recourse would probably be to file a 1008 with

15 The Court.

16 DR. ZIMMERMAN:

17 But that defeats the purpose of the --

18 JUDGE KELLAR:

19 It does.

20 DR. ZIMMERMAN:

21 -- expedited nature of the process.

22 JUDGE KELLAR:

23 I think it does defeat the process, but

24 we don't even see that is what you're telling

25 me?



1 DR. ZIMMERMAN:

2 Yes, ma'am.

3 JUDGE KELLAR:

4 So --

5 DR. ZIMMERMAN:

6 So what I'm wondering is, is there any

7 way to time limit investigations of

8 compensability?

9 JUDGE KELLAR:

10 I don't know that, an answer to that

11 question, but it is an issue that we can take

12 under advisement. Okay?

13 DR. ZIMMERMAN:

14 (Nods head.)

15 JUDGE KELLAR:

16 Thank you for bringing that to my

17 attention. Now, that is the first time we've

18 heard that one. Thank you.

19 DR. ZIMMERMAN:

20 (Nods head.)

21 JUDGE KELLAR:

22 Dr. Zimmerman, can you tell us what your

23 field of specialty is?

24 DR. ZIMMERMAN:

25 Pain management. I work at Louisiana



1 Medical Clinic in Baton Rouge.

2 JUDGE KELLAR:

3 Thank you. Anybody else?

4 MR. PROCELL:

5 My name is Paul Procell from Shreveport,

6 Louisiana, occupational therapist. Is there

7 any other therapists in the room? Raise your

8 hand. Okay. I represent all the therapists

9 in Louisiana.

10 First question I have is, as a therapist,

11 I'm getting some feedback from certain

12 attorneys in my area that I cannot fill out a

13 1010 on behalf of a patient unless the patient

14 gives me their consent. So a doctor refers a

15 patient to me, the insurance carrier, nurse

16 case manager, insurance adjustor, and they

17 want me to fill out a 1010 and submit it to

18 them. And is it legal for someone to fill out

19 a 1010 without the patient's consent? Have

20 y'all heard this one before?

21 The background of this would be that

22 certain attorneys are trying to manipulate

23 where the people go for functional capacity

24 evaluation. And if you force it to receive

25 approval or consent by the patient, then you



1 can somehow direct or manipulate the course of

2 where these functional capacities are being

3 performed. So my question is, do I need a

4 consent from the patient to fill out a 1010?

5 JUDGE LUNDEEN:

6 So you have two questions here. You have

7 two issues. But first, let me address the

8 second issue, and this may or may not be the

9 answer. But medical treatment guidelines are

10 designed to be mandatory for any workers' comp

11 patients. So if you are treating a workers'

12 comp patient, you have to use this form.

13 So it's not about the consent of the

14 patient. This is the legal mandate created by

15 our legislature that is a tool that you have

16 to use to get medical care for them, if they

17 are there because they've had an occupational

18 injury and are filing under workers'

19 compensation.

20 You may have a different answer if they

21 come to you. It's undetermined if they have

22 had an occupational injury or claiming a

23 workers' compensation compensable claim, and

24 they present to you under a private insurance

25 company. That's a very different scenario.



1 MR. PROCELL:

2 That would be the case with me. I would

3 not get the referral unless it came from the

4 treating physician and they provided me the

5 contact information, work comp information and

6 so forth. So every patient I'm discussing is

7 a workman's comp claim with a claim number

8 that's been processed.

9 JUDGE LUNDEEN:

10 You're legally obligated to use this

11 form.

12 MR. PROCELL:

13 I understand. I got that part.

14 JUDGE LUNDEEN:

15 There's nothing in the statute that

16 indicates, at least that I am aware of, that

17 indicates that you have to have the patient's

18 consent to do what the legislature has told

19 you have to do.

20 MR. PROCELL:

21 Thank you. Second thing is, since I do

22 functional capacity evaluations, I've been

23 having issues with a certain insurance carrier

24 in the state, and I've mentioned LUBA, that a

25 functional capacity evaluation is usually 24



1 units. Before the state went to units, they

2 were doing it by the hours. I've been in

3 business since 1989, so six hours. Once the

4 state went to units, four units -- a unit is

5 15 minutes, so basically 24 units.

6 Now, LUBA is saying they're only going to

7 approve 14 units. You do the 1009, you appeal

8 it. It goes to you guys. And the next thing

9 I know is that it gets denied, and that a

10 14-unit functional capacity evaluation is

11 acceptable.

12 What I would like to discuss with the

13 panel is that there's no such thing as a

14 partial functional capacity evaluation. When

15 a patient goes to an orthopedic and does the

16 evaluation and they have an assigned body

17 part, they're doing a full evaluation of that

18 injured body part. When they come to me for a

19 functional capacity evaluation, I have to do a

20 full evaluation.

21 So I'm wondering or maybe to educate,

22 because I'm not sure if there is a therapist

23 on your Board to determine partial and full

24 functional capacity evaluations. Is there a

25 therapist that that information has been



1 shared with? Is there a therapist?

2 JUDGE KELLAR:

3 The Medical Director makes the decisions

4 on all 1009 appeals, regardless of what field

5 of specialty there is.

6 MR. PROCELL:

7 So there's no such thing as a functional

8 function capacity evaluation. You have a

9 functional capacity evaluation and a work

10 screening tolerance. A functional capacity

11 evaluation is, once a patient has achieved

12 maximum medical improvement, they've achieved

13 maximum rehab potential, then you do a

14 functional capacity evaluation.

15 A work screening tolerance is done in the

16 process of them achieving MMI, achieving

17 maximum rehab potential that you're trying to

18 determine that they can return to work at some

19 capacity, but that is a partial -- a work

20 screening tolerance. That is not a functional

21 capacity evaluation. So I would suggest

22 cleaning up the definition of a partial FCE.

23 JUDGE KELLAR:

24 Yes, sir?

25 DR. PICARD:



1 The guidelines don't specify partial

2 versus full FCE. So if you're addressing an

3 FCE and it is appropriate and it was denied

4 due to what you're describing, it would be

5 approved by me or back to me. We can't do

6 anything about what the insurance companies do

7 on the front end about things like that. I

8 can only look towards what to do when it gets

9 to me.

10 And I look at what the guidelines say.

11 And there is no delineation between those two

12 things. You either do an FCE or you don't.

13 And if it's appropriate, then you would

14 approve it and we would consider limiting the

15 amount of hours and things of that nature.

16 MR. PROCELL:

17 The previous medical director has

18 approved partial functional capacity

19 evaluations, so ...

20 DR. PICARD:

21 That's kind of --

22 MR. PROCELL:

23 I just got stuck with one this past week

24 so I would submit that.

25 JUDGE KELLAR:



1 Have you received the partial functional

2 capacity evaluation since March?

3 MR. PROCELL:

4 Last week, yes, ma'am.

5 JUDGE KELLAR:

6 From Dr. Picard?

7 MR. PROCELL:

8 I didn't appeal it. I just went ahead

9 and did the evaluation because it was on a

10 timing basis, because previous ones I had -- I

11 was unaware of the new medical director -- in

12 the past when you submit them, it's denied.

13 So in the future, I'm going to try it again.

14 And but I would just ask you to consider,

15 there's no such thing as a partial functional

16 capacity evaluation.

17 And in the guidelines with LUBA, they're

18 asking that you only reimburse 14 units versus

19 24 units. And there's no way you could do a

20 full functional capacity evaluation in that

21 short a period of time. Because when I go

22 through depositions, my findings are going to

23 be shot out of the water.

24 DR. PICARD:

25 If it's not specified in the guidelines,



1 then I wouldn't deny it on that basis. If

2 it's not specified that there is such a thing

3 as a partial functional capacity evaluation to

4 specify functional capacity evaluation and you

5 make a decision on what that entails, then I

6 would approve it.

7 MR. PROCELL:

8 Well, the referring physician would write

9 on the script, functional capacity evaluation.

10 DR. PICARD:

11 Right.

12 MR. PROCELL:

13 So they don't need to put full or

14 anything. A functional capacity evaluation

15 has its own definition.

16 DR. PICARD:

17 I agree.

18 MR. PROCELL:

19 Thank you.

20 JUDGE KELLAR:

21 Let me go back to Dr. Zimmerman for a

22 minute. I've been looking at the 1010 form

23 and in Section III, Responsive Care and

24 Self-Insured Employed for Authorization. And

25 what it says is the requested treatment or



1 testing is denied because, other.

2 DR. ZIMMERMAN:

3 Yes.

4 JUDGE KELLAR:

5 That's a denial, which means that at that

6 point, you're required to appeal to the

7 Medical Director --

8 DR. ZIMMERMAN:

9 No, ma'am. The only way you can get to

10 the Medical Director is if it's denied based

11 on not consistent with the medical guidelines,

12 the first check off box. Boxes two, three,

13 and four do not allow you to get to the

14 Medical Director. They take you to a 1008.

15 Boxes two, three, and four are

16 non-compensable, not job related, or other.

17 So they're not inconsistent with the medical

18 guidelines and they don't get to a 1009.

19 JUDGE KELLAR:

20 The four boxes are not in accordance with

21 the medical treatment schedule. The second

22 one is the request for a portion thereof is

23 not related to the on-the-job injury. The

24 third is the claim is being denied as

25 non-compensable. And the fourth one is other.



1 And it says, attach brief explanation.

2 DR. ZIMMERMAN:

3 And then, if you check off boxes two,

4 three, or four, you do not get to a 1009. The

5 only way you get to a 1009 is if you check off

6 box number one.

7 JUDGE KELLAR:

8 Okay.


10 I'm -- I guess I'm not sure what he was

11 referring to what -- it says, a brief

12 explanation, because other, other has been

13 checked on the 1010, and it does go to the

14 Medical Director.

15 DR. ZIMMERMAN:

16 Not if they put compensability at issue.

17 JUDGE KELLAR:

18 If compensability is at issue --


20 Well, that's --

21 JUDGE KELLAR:

22 -- no, it does not give them medical.

23 DR. ZIMMERMAN:

24 So but the point is to not allow them to

25 fudge and say, we don't know whether



1 compensability is an issue or not. My

2 preference would be that if compensability is

3 the issue, that they check off

4 non-compensable. They don't.

5 What they do is, they check off other and

6 they say, we're still investigating whether

7 compensability is at issue or not. And then,

8 they go on and take months to make that

9 determination.

10 JUDGE LUNDEEN:

11 So what you're saying, Doctor, is that

12 they've actually created a new category of

13 non-compensable by checking off other and

14 saying we're investigating its compensability,

15 when they should have checked off

16 non-compensable or undetermined as

17 compensable?

18 DR. ZIMMERMAN:

19 They haven't been -- their feet haven't

20 been forced to the fire --

21 JUDGE LUNDEEN:

22 Right.

23 DR. ZIMMERMAN:

24 -- by taking and saying we have placed

25 compensability at issue. They have simply



1 said, we are investigating and it takes -- and

2 they go on and on and on until they finally

3 get to a 1008. They depose and they try and

4 investigate the patients over time. And they

5 use that to not have to pay for medicals in

6 the meanwhile. And they use that to not have

7 to pay for benefits in the meanwhile when they

8 haven't determined whether compensability is

9 at issue or not.

10 JUDGE KELLAR:

11 Has anybody in the audience seen a 1010?

12 Yes? Yes, ma'am? Can you stand up and

13 identify yourself, please, ma'am?

14 MS. ROBERTSON:

15 I'm Melinda Robertson.

16 JUDGE KELLAR:

17 Hold on just a minute.

18 MS. ROBERTSON:

19 Melinda Robertson, I'm the Workers' Comp

20 Coordinator for the NeuroMedical Center. And

21 we do a lot and I see that a lot, and that's

22 just to stop the process where we can't do

23 anything and the patient is sitting waiting

24 for treatment, but they're not making any

25 decisions. So we can't send a 1009 because



1 they're going to reject it for being -- for

2 compensability.

3 JUDGE KELLAR:

4 "Compensability"?

5 MS. ROBERTSON:

6 Yeah. We're stuck.

7 JUDGE KELLAR:

8 So you get the 1010 back from the payor

9 and it says, other?

10 MS. ROBERTSON:

11 And it says, claim under investigation.

12 And we're waiting months to -- and we can send

13 it again and they'll keep over and over, and

14 the patient is not getting the care they need

15 because they're investigating.

16 JUDGE KELLAR:

17 And when you've sent those in to the

18 Office of Workers' Compensation Medical

19 Director, they've been rejected?

20 MS. ROBERTSON:

21 Well, when we first started doing it, we

22 were doing it that way when the guidelines

23 came around. But once we realized it wasn't

24 going to get through, we don't waste our time.

25 JUDGE KELLAR:



1 Okay. Thank you. Thank you, ma'am.

2 MS. LEE:

3 I've seen instances where insurers will

4 pay for claims, even though they are being

5 investigated; maybe not everybody, but some of

6 them will. And, of course, it's unfortunate

7 if there's something they learn that would

8 make them cut off the benefits, but I would

9 give it a shot. There are a few who will pay

10 for claims while they are being investigated.

11 JUDGE KELLAR:

12 Yes, sir?

13 DR. ZIMMERMAN:

14 My second issue that I'd like to chat

15 about is when carriers create rules not in the

16 guidelines; specifically when they impose

17 requirements not in the guidelines. For

18 instance, if I get denied as not in accordance

19 with the medical guidelines and I call in and

20 I ask for a voluntary reconsideration, Carrier

21 A may say, we will only allow you voluntary

22 reconsideration if you provide additional

23 medical documentation. Carrier B may say, we

24 will not consider any additional medical

25 documentation when we have -- when you have



1 voluntary reconsideration.

2 So there are inconsistent rules amongst

3 carriers for the right to have voluntary

4 reconsideration when neither of those

5 requirements are part of 2715I. So they

6 impose rules not in the guidelines and they

7 are inconsistent so that LWCC will say X, and

8 Novare will say Y, and it depends on the

9 carrier as to whether or not, I guess, how we

10 respond.

11 JUDGE KELLAR:

12 Thank you. There are also inconsistent

13 rules imposed by carriers on things that are

14 not required by the medical treatment

15 guidelines, so 2715 in other areas as well,

16 but we were not aware of that one.

17 DR. ZIMMERMAN:

18 Additionally, and I'm curious

19 particularly with LWCC as to their ability to

20 impose a formulary when no formulary within

21 the guidelines exist; so that if I write for a

22 branded medication, I receive a denial from

23 Dr. Beau -- or Dr. Clark, I should say,

24 advising me that they will only pay for

25 generics and that they will -- I will either



1 need to submit a 1010.

2 So I write a prescription, that gets

3 turned down. I then submit a 1010, that gets

4 turned down. I have voluntary

5 reconsideration, that gets turned down. And

6 then I finally go to a 1009 where the Medical

7 Director approves it. But by then, the

8 patient has waited in excess of 30 days for

9 the medication, when in fact, there is no

10 formulary that they can hang their hat on.

11 JUDGE KELLAR:

12 Thank you. Yes, ma'am?

13 MS. ROBERTSON:

14 I have a question about the 1009 after

15 it's approved. It states that the 1009 is not

16 a guarantee of payment. So what we do is we

17 go back to the carrier, send them the 1009

18 approval, along with a new 1010 so that they

19 can send us the approval. However, we're

20 waiting upwards of months to get those back.

21 Is there a certain amount of time they

22 have to respond to us after getting the 1009

23 approval?

24 JUDGE KELLAR:

25 There is currently no period of time



1 written into the rules regarding how long it

2 is they have to approve the procedure once

3 it's been approved by the Medical Director.

4 We've heard this question in other cities.

5 And our response has been to file a 1008

6 appeal.

7 Yes? Go ahead.

8 JUDGE LUNDEEN:

9 Under the Workers' Compensation Act, an

10 employer or its insurer has 60 days' written

11 demand to pay for medical bills. We don't --

12 we don't have any cases yet that have tried

13 that, but we are getting cases where the

14 Medical Director -- and we're hearing some of

15 the state -- the Medical Director approves

16 something and then people sit around waiting

17 for the insurer to actually provide that

18 medical care.

19 Arguably, you could file a motion to -- a

20 1008 with a motion to enforce in that 60-day

21 rule, potentially applying for either

22 penalties and attorneys' fees depending upon

23 the circumstances of the case to enforce that

24 decision. But I don't think that they can

25 circumvent that 60-day certainty and that



1 doesn't help the patients in need, because

2 that's 60 more days after the medical

3 treatment guideline process. But it is sort

4 of a finite window. It's not clear yet though

5 how to do this.

6 JUDGE KELLAR:

7 Well, you see, the first time we've heard

8 that complaint is during these Town Hall

9 Meetings. And we had no clue that the Medical

10 Director would approve a treatment and then

11 the payor would not pay it. I personally

12 don't feel that you need to send another 1010,

13 together with the 1009 approval to get them to

14 authorize the treatment. But as I said, one

15 of the reasons we're here is to find out what

16 your issues are and try to fix them.

17 These Town Hall Meetings have revealed to

18 us that our medical treatment guidelines lack

19 enforcement power. And so that's one of the

20 things that needs to be written into the rules

21 to enforce once the Medical Director gives an

22 approval, that needs to be enforced so that

23 you don't have to file a 1008.

24 Because as Dr. Zimmerman pointed out and

25 as we all here know, the medical treatment



1 guidelines are intended to be quicker, faster

2 to get the treatment to the injured worker.

3 So if you're having to file a 1008 to enforce

4 what we intended to happen in the first place,

5 then we're failing. You know, we're failing.

6 So thank you. We've heard that one numerous

7 times.

8 Yes? Yes, ma'am?

9 MS. TARKINGTON:

10 Hi. I'm --

11 JUDGE KELLAR:

12 Just a minute.

13 MS. TARKINGTON:

14 Hi. I'm Cris from Capital City

15 Chiropractic. I have a question. When you

16 fill out the 1010 form, we send it in. It

17 gets approved. The Code that I'm using is a

18 97124, which is a massage therapy code.

19 For every 15 minutes is one unit. And I

20 put four units on the side of that code. It

21 gets approved, then the payor doesn't pay it.

22 It's just denied. It doesn't have a medical

23 explanation by it or anything.

24 So, therefore, by the time I get that

25 denial back, that could be two months, and



1 they've had ten massages by then. And so

2 they're all getting denied. What do I do in

3 that circumstance?

4 JUDGE KELLAR:

5 So the Medical Director is approving the

6 requests?

7 MS. TARKINGTON:

8 Yes, ma'am.

9 JUDGE KELLAR:

10 And then the payor denies --

11 MS. TARKINGTON:

12 Just that code, yes, ma'am.

13 JUDGE KELLAR:

14 Well, again, you're in the same position

15 where you have to enforce the Medical

16 Director's approval through the 1008 process.

17 Because, currently, there's nothing in the

18 rules which allow you to do anything further.

19 There's nothing in the rules that say, once

20 the approval is received from the Medical

21 Director, the payor has 60 days to approve or

22 they'll be assessed a penalty and attorneys'

23 fees. There's nothing in the rule that says

24 that. So that is an issue that we will be

25 addressing so that when the Medical Director



1 gives an approval, it can be enforced.

2 MS. TARKINGTON:

3 Okay. Also, I have a question when the

4 patient has an attorney and it's a workman's

5 comp case, everything goes through the

6 workman's comp process. If a workman's comp

7 carrier keeps denying that claim and I cannot

8 get it paid, is the attorney or the patient

9 responsible for that care that didn't get

10 paid?

11 JUDGE LUNDEEN:

12 No.

13 MS. TARKINGTON:

14 No? Okay. That's what I thought. I

15 just wanted to --

16 JUDGE KELLAR:

17 I -- somebody over here said no, but they

18 need to say it verbally.

19 JUDGE LUNDEEN:

20 No. In fact, Tulane Medical Center in

21 New Orleans got dinged for doing that because

22 you can't go beyond the fee schedule of the

23 Workers' Comp Act. And while a claim, even if

24 it's compensability is being denied, you can't

25 seek payment from both sources and charge the



1 whole in excess of the fee schedule to the

2 injured worker or if he's been guaranteed by

3 somebody else like an attorney to the

4 attorney.

5 MS. TARKINGTON:

6 Yeah, I just wanted to --

7 JUDGE LUNDEEN:

8 Be careful of that. You can actually get

9 penalized for that as a medical provider.

10 MS. TARKINGTON:

11 Okay. I thought so, but I just wanted to

12 make sure that I was understanding it

13 correctly. Thank you.

14 JUDGE KELLAR:

15 Thank you, ma'am.

16 DR. ZIMMERMAN:

17 I have another.

18 JUDGE KELLAR:

19 Please, Dr. Zimmerman, go ahead.

20 DR. ZIMMERMAN:

21 So, recently, I had a case where I called

22 seeking voluntary reconsideration after being

23 denied on a 1010. I called and spoke to the

24 nurse case manager and the adjustor who

25 claimed that, because the patient was



1 represented by counsel that they were not able

2 to speak with me to allow for or deny a

3 voluntary reconsideration. I'm curious

4 whether that's a reasonable response.

5 JUDGE KELLAR:

6 Generally, if someone is represented by

7 an attorney, you speak through their attorney.

8 That's generally.

9 DR. ZIMMERMAN:

10 The nurse case manager -- so the

11 patient's attorney needs to request voluntary

12 reconsideration in order to allow me to then

13 speak to the adjustor or the nurse case

14 manager?

15 JUDGE KELLAR:

16 I can't make the rule generally about

17 that at this time. But, generally, if someone

18 has an attorney, you need to speak to their

19 attorney. We're finding that there's a lot of

20 gamesmanship going on with the implementation

21 of the medical treatment guidelines. And so

22 what we need to do is we need to tighten up

23 our rules for that purpose so that these sorts

24 of things don't happen. But thank you for

25 bringing it to our attention.



1 DR. ZIMMERMAN:

2 While I've got the mic, I want to try one

3 other way, which is more aspirational than

4 anything. I find myself asking for the same

5 things for different reasons for different

6 patients repeatedly and redundantly to the

7 same carrier. If I ask for Amrix because the

8 patient has found that Flexeril is too

9 sedating, I will get a denied by the

10 prescription level, denied at the 1010 level,

11 and then authorized by the Medical Director

12 routinely.

13 I'm wondering whether there is any way to

14 allow for precedential value of Medical

15 Director's decisions so that if the same

16 carrier has been asked the same question for

17 the same reasons in the past, we need not go

18 through the process redundantly.

19 JUDGE KELLAR:

20 That's a suggestion?

21 DR. ZIMMERMAN:

22 I'm wondering whether that is in fact

23 something that I already have the right to

24 request or whether that is something that

25 needs to be added because I don't know what



1 the panel thinks about that, but I'd be

2 curious to hear.

3 JUDGE KELLAR:

4 Okay. First of all, this panel doesn't

5 make decisions on your request. Only one

6 person does.

7 DR. ZIMMERMAN:

8 Okay.

9 JUDGE KELLAR:

10 And that's Dr. Picard.

11 DR. ZIMMERMAN:

12 Precedential value --

13 JUDGE KELLAR:

14 I understand what you're saying. It's

15 like when the judges render decisions, if you

16 know what treatment a judge has given to a

17 particular issue, you don't need to appeal it

18 because you know what's going to happen in

19 that case. I think that the Medical

20 Director's decisions ought to be instructed.

21 But insofar as asking for the same thing,

22 receiving the same answer is concerned, I

23 would say each patient is different. So it

24 might be a little bit difficult. That's my

25 response. Dr. Picard might think something



1

differently.

2

3

DR. PICARD:

Yeah, I understand your question.

The

4 only problem with it would be the amount of

5 variability from person to person, and the

6 insurance company is going to want to look at

7 that case and its mentality to determine what,

8 you know, they want to do. And if they're

9 basically rejecting that particular thing

10 every time, regardless of what the

11 circumstances are, I think the only thing you

12 can do is file a 1009. I know it's more

13 difficult, but there's nothing in the

14 guidelines that would allow what you're asking

15 for.

16 DR. ZIMMERMAN:

17 Understood. I guess my issue is if it's

18 something that you've already said yes to and

19 it's the same fact pattern routinely as it is,

20 it seems to me that they're denying it solely

21 to delay. And so at that point, it becomes

22 again a vital issue of the spirit of the

23 notion that our rules exist to expedite

24 things.

25 JUDGE KELLAR:



1 But it's a different patient; right?

2 DR. ZIMMERMAN:

3 Different patient with the exact same

4 fact pattern.

5 MR. PROCELL:

6 Same carrier?

7 DR. ZIMMERMAN:

8 Yes.

9 JUDGE KELLAR:

10 Thank you. Anybody else? Yes, sir?

11 MR. PROCELL:

12 Is there any way as far as the medical

13 professionals and rehab professionals to gain

14 more information on the 1010 as far as what

15 insurance carriers are receiving the most

16 1009s or does that data exist? Because if

17 there are certain carriers that continually

18 deny, I think we should be made aware? Your

19 thoughts?

20 JUDGE KELLAR:

21 The only information that we are

22 currently keeping is information that actually

23 comes into our office. We are not privy to

24 the information that is received at the

25 various payors.



1 MR. PROCELL:

2 But the work comp carrier is on the 1009;

3 right?

4 JUDGE KELLAR:

5 The payor?

6 MR. PROCELL:

7 Yes.

8 JUDGE KELLAR:

9 Yes.

10 MR. PROCELL:

11 So that data is there?

12 JUDGE KELLAR:

13 So you're asking --

14 MR. PROCELL:

15 I'm asking to --

16 JUDGE KELLAR:

17 Let you know the names of the carriers

18 that are denying --

19 MR. PROCELL:

20 At a higher rate than the average of the

21 state that there's normative empirical data

22 that shows that, here's the average; we've

23 received Medical Director approval, but which

24 insurance carriers out there are going above

25 the average that you're having to file 1009s?



1 DR. ZIMMERMAN:

2 You're not aware of the 1010s.

3 JUDGE KELLAR:

4 Yeah, I don't -- I mean I would not be

5 willing to release that information. It may

6 be useful for internally in the office, but I

7 don't -- I don't see where we should be, you

8 know, giving that information to the public.

9 DR. ZIMMERMAN:

10 Right.

11 JUDGE LUNDEEN:

12 Also, the data you would collect would be

13 inaccurate as a whole for reasons that the

14 Director stated earlier. Because the only

15 information that we would have would be the

16 cases that came to us. There might be tons of

17 other cases or no other cases internally that

18 never made it to the 1009 process. So it

19 would be a skewed and incorrect statistic.

20 JUDGE KELLAR:

21 Yes, ma'am?

22 MS. KRUMHOLT:

23 Robin Krumholt with Davoli and Krumholt.

24 I represent injured workers. We have clients

25 that are permanently, totally disabled, so



1 they can't get treatment under the medical

2 treatment guidelines because it's not giving

3 them 50 percent functional improvement for

4 returning them to work.

5 So my question is, how do we ask for a

6 variance for these long-term patients and what

7 type of medical evidence do we need to try to

8 get a variance from the medical treatment

9 guidelines? Thank you.

10 DR. PICARD:

11 I don't know how to answer that one,

12 Judge.

13 JUDGE KELLAR:

14 You don't know how to answer that one?

15 DR. PICARD:

16 I mean you're asking -- typically, if

17 you're asking for a variance from the

18 guidelines, what it's intended to do is allow

19 you to have a particular procedure or

20 something that might be new that didn't make

21 it to the guidelines yet or some variation on

22 a surgical therapy, something of that nature.

23 You're talking about a whole spectrum of

24 care that you're looking at providing now

25 that's different from what is in the



1 guidelines. So that's why I'm not sure how to

2 answer that question. She's talking about

3 somebody that completely falls outside of the

4 guidelines.

5 And now, do we have a variance to allow

6 them to now comply with the guidelines? I'm

7 not sure how to answer that.

8 JUDGE KELLAR:

9 Well, the medical treatment guidelines

10 provide for a listing of criteria to be used

11 to submit to the Medical Director if you want

12 a variance. We are aware that the

13 requirements for the kinds of evidence or

14 literature you submit is stated differently in

15 the guidelines and in the rule, 2715. And so

16 it has caused a conflict and it needs to be

17 cleaned up.

18 But if we look at 1203.1, it directs you

19 back to the section to tell you specifically

20 what it is you need to submit to the Medical

21 Director to support the request for variance.

22 MS. KRUMHOLT:

23 Yes, ma'am. And the problem we're

24 encountering is these are patients, say for

25 instance, that have had multiple back



1 surgeries that have failed back syndrome. And

2 before the medical treatment guidelines are

3 strictly palliative care, they could get, say,

4 epidural steroid injections or trigger point

5 injections, but they're not being allowed to

6 have this necessary treatment under the

7 medical treatment guidelines and they're not

8 able to return to work or ...

9 DR. PICARD:

10 Okay. Now, I understand what you're

11 asking a little bit better, I think. In that

12 case, if you have a specific case that you

13 just discussed, if the patient has what's

14 required for an ESI, they have radiculopathy

15 and pain, you know, if they've failed

16 nonconservative treatment, that I would

17 typically approve that particular procedure.

18 Return to work is not in the guidelines

19 as required for that procedure. So I think

20 it's still worth going through the 1009

21 process and to let us take a look at it,

22 because it might be that some cases do meet

23 the guidelines.

24 MS. KRUMHOLT:

25 Thank you.



1 JUDGE KELLAR:

2 Yes, sir?

3 UNKNOWN:

4 Judge Kellar, Members, thank y'all.

5 Today, I'm here with several pharmacies who

6 would like to express their concerns and

7 their -- basically the 1010 forms. And I have

8 IWP, I have the AHCS and GEM drugs and they

9 would like to maybe suggest some ideas of how

10 they can -- how we can address these issues

11 that they're facing on the pharmacy side.

12 MR. MIRE:

13 Thank you, guys. So my name is Randy

14 Mire and I own four pharmacies in Louisiana.

15 I'm a pharmacist as well. And one thing that

16 we find very difficult is with the role of the

17 $750 for approval for medication. Many of

18 times, you know, with the costs of generic

19 drugs being more cost effective and so forth,

20 they will lump all of the patients' meds on an

21 office visit together.

22 So a patient gets four generic

23 medications, they exceed 750. Then they say,

24 you should have filled out a 1010 and got

25 authorization. We find that very difficult.



1 You know, it slows up the process for the care

2 of the patient.

3 They'll go out without meds for many days

4 while you wait for an adjustor to get back

5 with the pharmacy. And patients, when we have

6 them sometimes in the pharmacy, you know, are

7 begging for their meds. And it's just generic

8 meds that are price efficient.

9 I understand that there needs to be a

10 rule in place for some sort of threshold, but

11 it needs to be defined better. And a single

12 medication, if it's a branded med that's over

13 a certain dollar amount, that you need

14 authorization for that specific medication,

15 but not lump them all together like that. And

16 we find it very, very difficult to deal with

17 when we're trying to get patients the care

18 they need.

19 JUDGE KELLAR:

20 Thank you.

21 MR. GROVES:

22 And just to weigh in on that, we've

23 basically come to a decision --

24 JUDGE KELLAR:

25 Your name?



1 MR. GROVES:

2 I'm sorry. It's Brett. Sorry.

3 JUDGE KELLAR:

4 Okay.

5 MR. GROVES:

6 Yes, we've come to a decision that we

7 could either wait to give the patients their

8 medications and try to obtain a 1010 form or

9 we can go ahead and risk, go ahead and give

10 the patient their medications and hopefully

11 that we collect on the back end. But so many

12 times, we're denied for the reason of

13 authorization wasn't given because you exceed

14 the 750, so that's their denial. So at that

15 point in business, we're out of pocket on that

16 just because we want to make sure that the

17 patient is serviced in a timely fashion.

18 JUDGE KELLAR:

19 Would either of the judges like to

20 address the 1010 and the prescription issue?

21 Judge Laramore?

22 JUDGE LARAMORE:

23 I don't know that you want me to get into

24 this.

25 UNKNOWN:



1 We also have IWP --

2 JUDGE KELLAR:

3 Well, you can tell them what the First

4 Circuit's treatment is on that issue.

5 JUDGE LARAMORE:

6 There's a case out there, it's

7 Ms. Krumholt's case, it's the Mire case, I

8 have made the decision that the medical

9 treatment guidelines do not apply to

10 pharmaceutical drugs; that there's nothing in

11 the medical treatment guidelines that says,

12 you get this drug at this amount for this

13 length of time for this condition. That's not

14 in there. There is no formulary for drugs in

15 the medical treatment guidelines.

16 There's been a lot of talk for many, many

17 years about doing one, but it's not there.

18 And I said that the medical treatment

19 guidelines do not apply to pharmaceutical

20 drugs. And I've been upheld to the First

21 Circuit. It's on its way to the Supreme Court

22 now.

23 It's, like I said, Ms. Krumholt could

24 give you more specifics about what the actual

25 case is, but it's a gentleman who is



1 permanently, totaled disabled and this is all

2 he's got is pain management drugs and it's

3 expensive. But that's -- that's where the

4 issue stands now.

5 Denise, if you want to cite the -- did we

6 bring it here? She can give you the cite --

7 MS. LEE:

8 For the First Circuit.

9 JUDGE LARAMORE:

10 -- for the First Circuit. It's up on

11 writs. And I have not received whether or not

12 the Supreme Court's accepted the writ yet or

13 denied it. But Phil did take it up; didn't

14 he? Denise -- I mean, Robin, or do you know?

15 Have they accepted it?

16 MS. KRUMHOLT:

17 Yes, Your Honor. I filed an objection to

18 the writ. He's filed a reply. But it all

19 happened at the time of --

20 JUDGE LARAMORE:

21 The flood?

22 MS. KRUMHOLT:

23 -- the flood, so we have not heard if

24 they've accepted the writ or not.

25 JUDGE LARAMORE:



1 So we don't know if the Supreme's going

2 to address it or not, but the First Circuit

3 has agreed with me.

4 DR. ZIMMERMAN:

5 Can I just ask for clarification? If the

6 guidelines don't apply, there's nothing that

7 the carrier is -- or what does that imply?

8 JUDGE KELLAR:

9 No, that's not what that means at all.

10 JUDGE LARAMORE:

11 You mean as far as I'm concerned? And

12 it's just me. It's just me. Every judge has

13 got their own way of looking at things. And,

14 believe me, Director Kellar will tell you that

15 my way of looking at things ain't always the

16 way everybody else does it.

17 DR. ZIMMERMAN:

18 Sure.

19 JUDGE LARAMORE:

20 But --

21 DR. ZIMMERMAN:

22 Well, what's your opinion?

23 JUDGE LARAMORE:

24 My opinion on this issue is there is no

25 medical treatment guidelines for how to handle



1 the drugs in general. And until they do that

2 and give specifics, then it's reasonable and

3 necessary medical treatment. If it's

4 reasonable and necessary medical treatment,

5 then I'm going to agree with it.

6 So what you do is you have -- present me

7 that it's -- carrier present to me that it's

8 not reasonable and necessary medical treatment

9 until I get the decision from the Supreme

10 Court that says, gee, Judge, stop that, you

11 know, or okay. I don't know.

12 JUDGE KELLAR:

13 And it is the First, the Fifth, and

14 the -- is it the Third -- the Second?

15 JUDGE LARAMORE:

16 I lose count, Dear.

17 JUDGE KELLAR:

18 All right. I know it's the First and the

19 Fifth and there's one other circuit?

20 MS. FONTENOT:

21 First, Second, and Fifth.

22 JUDGE KELLAR:

23 First, Second, and Fifth?

24 MS. FONTENOT:

25 As per the meeting in Lafayette.



1 JUDGE KELLAR:

2 Okay. That has decided that prescription

3 medication is not subject to the approval and

4 the appeal process authorized by 23 -- 1203.1.

5 JUDGE LARAMORE:

6 Now Brian has got his hand up, and I'll

7 tell you that Brian has got that same issue

8 with me too, and they -- on the exception of

9 prematurity. And we -- I've ruled the same

10 way on it. And I know, Brian, you're taking

11 that up too; aren't you?

12 MR. BLACKWOOD:

13 Yes. Brian Blackwood, State of

14 Louisiana. So the Mire case that you're

15 talking about with Robin and Phil Foco and

16 then myself for the State, we've got several

17 cases, they're all going up at the same times.

18 The writs were due at the same day. So --

19 JUDGE LARAMORE:

20 We're just waiting.

21 MR. BLACKWOOD:

22 -- The Court will likely consolidate them

23 if they accept it. But the point I was going

24 to bring out is the Second Circuit in dictum

25 says that it does go through the treatment



1 guidelines, and that's my opinion at least

2 according to in dictum in court. And I don't

3 recall the Fifth making comment.

4 The First clearly said that, you know,

5 upheld the judge and overturned Judge

6 Thompson, who in the District Court level had

7 said that the drugs would go through the

8 guidelines. So that was overturned.

9 JUDGE KELLAR:

10 Okay. So I have the decision from the

11 First and the Fifth, and I know there's one

12 other circuit. I'm not sure which one that

13 is. But what that means is for the lawyers in

14 the room, they know that they are to follow

15 the Appellate Court in their jurisdiction.

16 To the extent that the Appellate Court

17 has made a different decision in the other

18 jurisdictions, then you do something

19 differently until the Supreme Court renders a

20 decision. And since we have a split in the

21 circuits, we're hoping that they will tell us

22 whether or not statewide pharmaceuticals are

23 subject to the medical treatment guidelines.

24 UNKNOWN:

25 We have one more client here at the IWP.



1 They would like to say -- express their

2 concerns and what they've had going on and

3 suggests their opinions on what -- how we can

4 fix it.

5 MS. JAFFEE:

6 Hi, I'm Danielle Jaffee, IWP, Injured

7 Workers Pharmacy. We share the concerns with

8 the other pharmacists and pharmacies. But our

9 model is a little different, so we've seen a

10 lot more of this problem.

11 We're a home delivery pharmacy. We

12 deliver the prescriptions to the injured

13 workers in our area. We had to fill that gap.

14 I think some of the providers have seen where

15 when there's an issue at hand, a patient can't

16 go into a pharmacy and get the prescription

17 without paying out of pocket, paying out of a

18 health care plan or just walking out without

19 it. So we try to fill that gap.

20 We have a staff that works with adjustors

21 and insurance claims. We pay and we take that

22 risk. And it works for us. It's our model.

23 We work in all 50 states.

24 But here in Louisiana, the problem we're

25 seeing is so much confusion, as you say, on



1 the court level as to if we need to be filling

2 it out. And that confusion comes from

3 insurers. Some insurance companies want us to

4 fill it out. Some want the doctors to fill it

5 out. You know, some want us to fill it out

6 for a prescription. Some say that once

7 they've approved it once, it carries through

8 the end of the prescription.

9 And on top of that confusion that we're

10 getting back, we do still have the 1010s.

11 We're covering ourself. So, for example, in

12 August, we filed -- we filled 700

13 prescriptions in Louisiana. We filed 700 1010

14 forms. We got replies from insurance

15 companies, only 78 replies.

16 And so for us, if they don't reply within

17 five days, it's a denial. And you can appeal

18 it, but that would be, like, over 600

19 decisions every month. And so for us, the

20 system is just not working as it should be.

21 And we're doing everything we're told

22 we're supposed to do, even when the attorney

23 is like he doesn't think we should be doing it

24 and we're still getting nothing from them and

25 that's apparently a denial for us. So we have



1 to take on the decision, do we keep going or

2 do we cut off this service that we're

3 providing for these injured workers that

4 already have no where else to go. So we kind

5 of agree with them.

6 You have to value the system whether it's

7 pharmacies filling out the 1010 forms or give

8 pharmacies a clearer idea of when they need to

9 fill out a 1010 form, whether there are

10 certain drugs that require that

11 pre-authorization because they're less --

12 maybe they're less effective, they're not as

13 common in the workplace injuries, or, you

14 know, generic drugs are available.

15 You have to give us some certainty.

16 Otherwise, I mean, I'm assuming you don't want

17 us to file 650 some-odd 1009 forms.

18 JUDGE KELLAR:

19 So what you do is you get a prescription

20 from the physician, the health care physician,

21 and you fill it out. You send it to the

22 injured worker. And then, you submit a 1010

23 to the payor to see if they will pay for the

24 script that's already gone to the injured

25 worker?



1 MS. JAFFEE:

2 That's how we do initial prescriptions.

3 Because, again, we cover that half. We'll

4 take on the risk that they're going to say no.

5 That's initial prescriptions. But we present

6 our 1010 forms as soon as we exceed the

7 prescription and start our work.

8 So we bill the next day. They're getting

9 the 1010 forms immediately and they have five

10 days to respond. They're not responding and

11 it's a confusion of what are we supposed to

12 do?

13 We're filling out the form. You're

14 telling us sometimes we don't need to fill out

15 the form and sometimes we need to, and you

16 don't reply. So you're going to deny us

17 without even evaluating the request we've

18 made.

19 JUDGE KELLAR:

20 Okay. Thank you.

21 MR. MIRE:

22 If there was a clearer role that there

23 was no 1010s for medications on the pharmacy

24 level or if it was just for branded

25 medications or it was just some type of role



1 laid out, because you've all been in the

2 pharmacies. It's impossible for us to fill

3 out all of the 1010 forms, give the quality of

4 care to the patient and make sure they get the

5 meds, and then hope we get paid.

6 It's -- the carriers look for any reason

7 to deny. So they use this as their way to be

8 able to deny. And, personally, all the

9 generic meds are very cheap. It seems like a

10 good fix would be just to save the brand

11 medications.

12 JUDGE KELLAR:

13 The problem, as I said previously, is

14 there that there is a split in the circuits,

15 so it would be inappropriate for the agency to

16 make a decision one way or the other as to

17 whether or not pharmaceuticals are subject to

18 the medical treatment guidelines. And as

19 Judge Laramore says, the issue has gone up to

20 the Supreme Court. We don't know whether

21 they've accepted writs or not. But if they

22 do, then the Supreme Court will settle the

23 issue statewide, and then you'll have your

24 answer.

25 Until then, you only can do what the



1 Appellate Courts and the jurisdiction in which

2 you're working has ruled. Whichever way

3 they've ruled is the way you --

4 MR. MIRE:

5 And that prevents us from appealing

6 through you as well with a 1008 or anything;

7 right?

8 JUDGE KELLAR:

9 No, it does not.

10 MR. MIRE:

11 So in the meantime, we could just say if

12 they deny for that reason, we can appeal with

13 a 1009?

14 JUDGE KELLAR:

15 That's correct. In those circumstances

16 where pharmaceuticals are subject to the

17 medical treatment guidelines, yes.

18 MS. JAFFEE:

19 So part of our problem comes with we

20 submit the 1010s, as I said, and they take

21 that out in the rules where if they don't

22 reply in five days, it's denied. And some of

23 that could be just administratively not

24 feasible for them to approve every

25 prescription 1010 form.



1 But the problem is, if they don't rule on

2 it, they don't make a judgment on any part of

3 it, but they deny it by not responding. And

4 then, if we continue to fill or if anything

5 happens, they can come back and say, you

6 didn't get a prior authorization. Well, we've

7 tried.

8 And if you don't give us anything to

9 appeal on, we -- we're just -- we're banging

10 our heads against the wall because you're just

11 choosing to not respond basically. I'm not

12 saying they're doing it intentionally. Part

13 of it is, if you're submitting a prescription,

14 a 1010 form on every prescription, any

15 provider can tell you, Workers' Comp patient

16 can receive a lot of prescriptions, it might

17 not be feasible for the insurance company to

18 go through each and every one.

19 JUDGE KELLAR:

20 If they don't respond, that's a denial.

21 MS. JAFFEE:

22 So then it's considered not prior auth,

23 and then what are we supposed to do?

24 JUDGE KELLAR:

25 It's considered what?



1 MS. JAFFEE:

2 Yeah, I know it's a denial.

3 JUDGE KELLAR:

4 That's a denial.

5 MS. JAFFEE:

6 Yeah, but we -- yeah, I know and I agree

7 with you, but our 1009s would be double to the

8 Medical Director. It would be 650 1009s in

9 August.

10 JUDGE KELLAR:

11 Okay. Yes, Dr. Zimmerman?

12 DR. ZIMMERMAN:

13 Sorry. Last one, I promise. In the

14 circumstance where we file a 1010 and we get

15 denied or we have tacit denial, there are

16 several carriers will then give us exactly the

17 same person who has denied us the first time

18 to have the discussion regarding voluntary

19 reconsideration. That seems like a system set

20 up for failure. If you've already made up

21 your mind, it's unlikely that I'm going to

22 change your mind.

23 Often times, the more reasonable carriers

24 will provide us with an alternant decision

25 maker for the voluntary reconsideration



1 discussion. I don't know whether they have

2 any obligation under 2715 currently, but it

3 would be a great help if the rules insisted

4 that a different person provide voluntary

5 reconsideration than the one who provided the

6 original decision.

7 JUDGE KELLAR:

8 Thank you. The Chief Judge was just

9 pointing out to me that the 1009 process is

10 not available for retrospective treatment.

11 Which means, if you render it and are seeking

12 our approval afterwards, we're not going to

13 take the 1009 to the pharmacy guys in the

14 back.

15 Your request for treatment is supposed to

16 be made before you render the treatment. So I

17 don't know what we do with pharmacy benefit

18 managers like our IWP people, but we hear you.

19 MR. FERRIS:

20 Jason Ferris, also of IWP. Just a

21 question, I guess, regarding what you said.

22 If we then dispense the medication prior to

23 actually sending the 1010 -- no, 1009, however

24 for refills and stuff like that, we generally

25 know they're coming up, so we'll file the 1010



1 first. In those cases, even though we file a

2 1010, no response to fill the med. Is the

3 1009 available to us then? Is it your

4 understanding or is that --

5 JUDGE KELLAR:

6 The 1010 is available -- process is

7 available before the treatment is rendered,

8 before the meds are given or filled or

9 whatever.

10 Freda, is that right?


12 Yes.

13 JUDGE KELLAR:

14 If they've already rendered the treatment

15 or whatever, then we send the 1010 back

16 because we don't approve the procedure,

17 treatment, medicine after it's already been

18 given.

19 MR. FERRIS:

20 Okay. You said the 1010, but the 1009.

21 JUDGE KELLAR:

22 The 1009, same thing.

23 MR. FERRIS:

24 So once the medication has been

25 dispensed, we are not able to file a 1009?



1 JUDGE KELLAR:

2 At presently, that is correct.

3 Presently, the 1009 process is not available

4 to you if you've already dispensed the

5 medication.

6 MR. FERRIS:

7 All right. So I think we can all see the

8 issue with that; right?

9 JUDGE KELLAR:

10 Yes. Absolutely.

11 MR. FERRIS:

12 All right. And then the only other thing

13 I wanted to just add is you mentioned, yeah,

14 this is going to the Supremes and we're going

15 to have some, hopefully, indication one way or

16 another across the state eventually. I'm just

17 thinking, in terms of if they say, yes, this

18 is required for pharmaceuticals, we still -- a

19 company like IWP is going to have issues

20 forever with this because we don't have access

21 to a lot of the -- for instance, there's a

22 spot right on the 1010 for the physician's

23 signature, for instance, or provider's

24 signature, or I think something like that,

25 right, and we don't have a lot of the



1 information that's provided.

2 So I guess my suggestion would be, in

3 lieu of waiting for the Supremes, perhaps even

4 now start thinking about, if they come back

5 saying that the medical treatment guidelines

6 apply to pharmacy, there should probably be a

7 different form or something different that a

8 pharmacy would provide to the carrier versus

9 what an actual physician. It's just a

10 thought, something to put in your head. I

11 don't know if there's any way to do that

12 practically, but ...

13 JUDGE KELLAR:

14 Thank you. Anyone else?

15 MS. ROBERTSON:

16 I have a question about the 1010A forms.

17 I get a lot of denials because they don't have

18 enough information, but they're not utilizing

19 the 1010A form. Is that still in place?

20 I have, like, two carriers that actually

21 use it. And I think a lot could be done,

22 because they give us a extra ten days to get

23 it through, you know, get it back through to

24 you instead of denying it and we have to go

25 through the appeal process and wait up to 30



1 days.

2 JUDGE KELLAR:

3 Freda, would you like to respond?


5 Yes. The 1010A is still a form that

6 should be used. If the carriers are not using

7 that particular form, if you know the

8 particular carriers, so you can call them or

9 let us go ask and we can, you know, contact

10 them and remind them to use that form. If

11 they don't use it --

12 MS. ROBERTSON:

13 Its like, it's only about two carriers

14 that I know of that actually do use them. All

15 the rest of them don't use it. They'll just

16 outright deny it. Like, is there is way that

17 when it does get denied, can we use that as

18 some kind of fact that they didn't use the

19 1010A form and just outright denied it? We

20 don't get phone calls.

21 Like, we'll do a peer to peer, but my

22 doctors are in clinic all day. And they'll

23 call on that fourth or fifth day and my

24 doctors can't get to their peer to peer in

25 time. So, like, we're doing -- we're sending



1 out a 1010, and they'll wait until the fourth

2 or fifth day to try to get in touch with the

3 doctor. They're not even sending 1010As where

4 the doctor can respond, and then we're sending

5 out 1009s.

6 JUDGE KELLAR:

7 And so the request for treatment is being

8 denied? All right. So the only recourse at

9 that point is to appeal.

10 DR. ZIMMERMAN:

11 You can also file a new 1010.

12 JUDGE KELLAR:

13 Well, you can file a new 1010, but I mean

14 why should she expect that her experience is

15 going to be different. The Utilization Review

16 Company or the payor is requesting peer to

17 peer review with her physician, who is in

18 clinic and never gets to talk to them, so

19 they're going to deny it again.

20 DR. ZIMMERMAN:

21 Perhaps get another five days and be able

22 to facilitate in light of the additional forms

23 during that five-day period.

24 JUDGE KELLAR:

25 Well, that's one way to do it. I mean



1 and another way to do it is to file a 1009.


3 File the 1009.

4 JUDGE KELLAR:

5 Yes, sir?

6 UNKNOWN:

7 Just a point of clarification. We were

8 just discussing something back here and I

9 might have misunderstood you. You said that

10 after something is -- a prescription is

11 dispensed and a 1010 form is denied, they

12 cannot submit a 1009 form; correct?

13 JUDGE KELLAR:

14 The medication is dispensed, you submit a

15 1010 afterwards, it's denied; right?

16 UNKNOWN:

17 Yes.

18 JUDGE KELLAR:

19 The 1010 process is intended to come

20 before the treatment to get approval before

21 the treatment.

22 UNKNOWN:

23 And that's the primary issue for these

24 people here. These companies here are doing

25 the right thing. They're providing services



1 to injured workers. They're giving them the

2 medication. And then they take this risk.

3 And what happens is these forms are denied,

4 because after a five-day period, they're not

5 responding to these forms and it's getting

6 denied and they get stuck with the bill.

7 So how -- you're telling me that they

8 need to submit 1009 forms, but they can't

9 submit a 1009 form because they're doing the

10 right thing and providing care. So what's the

11 next course of action for them? What -- how

12 do they -- I mean they're trying to take care

13 of injured workers.

14 They're trying to get people back to

15 work. They're giving them the medicines they

16 need, but they can't follow the protocols in

17 place because there -- it's not working out

18 for their companies and their business models.

19 So what's their course of action?

20 What can they do right now until the

21 Supreme Court has ruled and y'all can change

22 the rule? Because it is a rule that's written

23 by the Department and by Workforce Commission.

24 What can they do in the meantime to recoup

25 some of this money or try to address these



1 issues properly?

2 JUDGE KELLAR:

3 Well, I understand what you're saying and

4 you've explained your business model to us,

5 but the rule is such that approval is supposed

6 to be received before the medication is

7 dispensed or the treatment is given or

8 whatever. And I understand, because of your

9 business model, that puts you in a severe

10 disadvantage because you've taken the risk to

11 get injured workers the medication that has

12 been prescribed for them.

13 At this time, the only thing I can do is

14 tell you that we will consider what you are

15 saying, but no answers are going to be given

16 to you today. I do understand what you're

17 saying, but we have no answer for you at this

18 time.

19 DR. ZIMMERMAN:

20 But if -- regardless of which way the

21 Supremes rule, the best case scenario for

22 different pharmacies is that the formulary

23 requirement or the 1010 process applies that

24 they can get perspective authorization. And

25 if the 1010 process doesn't apply, then



1 they're going to have to go to a 1008, which

2 will take months which will mean the patients

3 will have care delayed even more. So either

4 way, patients are going to suffer regardless

5 of which way the Supreme Court rules.

6 JUDGE KELLAR:

7 But what the gentleman is saying is that

8 manner in which they do business is they don't

9 ask for perspective approval. They're asking

10 for retrospective approval.

11 DR. ZIMMERMAN:

12 Which is clearly not how the rules work.

13 JUDGE KELLAR:

14 Which is not how the rules were intended

15 to apply. And I understand in this case,

16 there's a different business model for them.

17 But, unfortunately, the medical treatment

18 guidelines have not carved out something

19 special for pharmacy benefit managers. And

20 maybe we should.

21 I don't -- I'm not saying that we won't.

22 I'm not saying that we should not. But at

23 this current time, we do not. But I hear you

24 and I will -- it will be taken into

25 consideration.



1 UNKNOWN:

2 Thank you.

3 MR. MIRE:

4 And with all due respect, it's not so

5 much the business model, ma'am, it's the

6 patient needing the care because they won't

7 reply in a timely fashion. And if you want to

8 be in business, exist as a health care, you

9 have to worry about the patient. And they

10 can't wait that timeline --

11 JUDGE KELLAR:

12 I agree.

13 MR. MIRE:

14 -- even the initial five or ten or

15 anything.

16 JUDGE KELLAR:

17 I agree.

18 MR. MIRE:

19 So the new rules would be very

20 beneficial.

21 JUDGE KELLAR:

22 And that's why we're all here is

23 because --

24 MR. MIRE:

25 I appreciate it.



1 JUDGE KELLAR:

2 -- because we want the injured workers to

3 get the treatment that they need quicker,

4 faster so that they can return to work in a

5 timely fashion.

6 MR. MIRE:

7 Thank you.

8 JUDGE KELLAR:

9 Remember, we're the Department of Labor,

10 we put people to work. So to the extent that

11 we can get them the treatment that they need

12 and get them back in the workforce, that's

13 what we're here for.

14 UNKNOWN:

15 I just want to thank you all very much

16 for trying to address these issues. I know

17 it's a lot to deal with and it's a complicated

18 process. But thank y'all for trying to

19 address this and taking our concerns today.

20 JUDGE KELLAR:

21 Thank you for coming.

22 Yes, ma'am?

23 MS. FONTENOT:

24 I don't know if I want to -- I'm Terri

25 Fontenot. Hi, Dr. Zimmerman.



1 DR. ZIMMERMAN:

2 Hi. Be careful.

3 MS. FONTENOT:

4 This was brought up in the meeting in

5 Lafayette. The rules that I read, and that's

6 why I didn't talk about it in the meeting in

7 Lafayette, but the Louisiana medical treatment

8 guidelines in the Rule R.S.23 blah, blah,

9 blah, it says that if a procedure is not

10 covered under Louisiana treatment guidelines,

11 you would revert to another state's

12 guidelines. Is that still so?

13 JUDGE KELLAR:

14 It does -- it does say that.

15 MS. FONTENOT:

16 Because we're seeing denials from Dr.

17 Picard because it's not covered under the

18 medical treatment guidelines.

19 DR. PICARD:

20 So we prefer to use the Louisiana State

21 guidelines as much as possible. When a

22 procedure is not within the guidelines, I

23 sometimes use now, and we've just recently

24 figured this out, that we can do that, what

25 you're discussing, because we've looked that



1 up, we use OBG guidelines and other guidelines

2 when they're available. We don't have access

3 to all of that where I can keep up with

4 everybody's guidelines.

5 So, normally, what I rely on would be the

6 insurance company or somebody to provide that

7 part. And a lot of them do, they provide that

8 part of the guideline of another state or an

9 OBG for me to look at. And we previously had

10 not been using that, but now we are. And when

11 they are both provided to me when it's in the

12 state guidelines or another guideline there, I

13 don't view the other guideline, I use the

14 state's guideline.

15 MS. FONTENOT:

16 Right.

17 DR. PICARD:

18 But we are looking more now towards other

19 guidelines when they are sent to us to look

20 at.

21 MS. FONTENOT:

22 And I have other concerns. Drug

23 screenings, I know y'all are looking into --

24 JUDGE KELLAR:

25 Yeah, we're trying to reconcile what is



1 in the medical treatment guidelines with

2 regard to urine drug screens and what the

3 Department of Hospitals requires.

4 MS. FONTENOT:

5 And I totally understand it because

6 that's licensure for physicians and practicing

7 (inaudible). My concern is the physicians who

8 are doing urine drug screens monthly, and the

9 urine drug screens are all normal monthly, and

10 they're still doing them monthly. We also

11 send off for a conformation monthly.

12 So in y'all looking into maybe updating

13 the guidelines, if both types of drug screens

14 can be addressed, because confirmations, when

15 they're looking on a patient who has never had

16 an abnormal drug screen and they're looking

17 for conformation on synthetic marijuana and

18 heroin and cocaine, and it's kind of, on a

19 78-year-old patient, it's kind of --

20 JUDGE KELLAR:

21 Counterproductive?

22 MS. FONTENOT:

23 -- counterproductive. If a patient has

24 never had an abnormal drug screen, I don't

25 know why you would do a confirmation of 30



1

drugs.

2

3

DR. ZIMMERMAN:

Well, let me tell you why.

Urine drug

4 screens do not test for all medications. And

5 so if the patient is on Usenta, if the patient

6 is on synthetic marijuana, if the patient is

7 on medications that -- (inaudible) is another

8 one that is not typically within a cup, then

9 confirmatory tests monthly are perfectly

10 reasonable.

11 Additionally, if the patient has had a

12 history even in the distant past of drug

13 abuse, specifically cocaine or drugs other

14 than pot, I personally think it's perfectly

15 reasonable to test them monthly.

16 Quarterly testing is reasonable for the

17 average patient, but carriers aren't aware

18 necessarily of whether the patient is an

19 average patient or a high risk patient. And

20 so the notion that we should have to provide a

21 cookie cutter approach for all patients is not

22 a reasonable thing to ask us to do. We need

23 to customize our care to the risks of an

24 individual patient, not to the cost structure

25 of the carriers.



1 JUDGE KELLAR:

2 Thank you.

3 Yes, ma'am?

4 MS. ROBERTSON:

5 I have a question about the 1010s. When

6 we first started doing 1010s, there was a list

7 for every carrier where you should, like, a

8 dedicated 1010 line. And as the years go on,

9 there's either the adjustor say, send it

10 straight to me, or we have to send it to a UR

11 company or even a number that's not on this

12 list that's on the website. So we get a lot

13 of nonresponses and we are doing tacit

14 denials.

15 Is there going to be a list put up that

16 we can just send those to this 1010 dedicated

17 line; therefore, we know it's there and they

18 can't say we haven't received it, you were

19 supposed to send it here, or you were supposed

20 to send it to me? We need a dedicated line

21 for these 1010s so that we know that they're

22 getting to the correct place.

23 JUDGE KELLAR:

24 One of the things we've noticed is that

25 the numbers that are contained on our website



1 for the dedicated fax lines, they're also not

2 up to date. And many of the tacit denials

3 result from those numbers not being up to

4 date. And so one of the things that we've

5 decided to write into the rules as a

6 responsibility of the carriers to give us a

7 good number, good fax number and a good

8 telephone number.

9 In the Workers' Compensation courts, we

10 require injured workers to keep us updated

11 with a good address for them. If we send them

12 a dually noticed date for a hearing or trial

13 and they don't receive it because the address

14 is incorrect, we penalize the injured worker

15 by dismissing his case, but we don't do

16 anything like that to recalcitrant TPAs or URs

17 or payors who don't keep us apprized of a good

18 number for them.

19 And so one of the things that we have

20 already considered is writing in the rule a

21 penalty for their failure to keep us apprized

22 of a good number so that we won't get so many

23 tacit denials as a result of the numbers not

24 being in there. Thank you for bringing that

25 up.



1 DR. ZIMMERMAN:

2 With regard to the tacit denials for one

3 second, the Medical Advisory Committee had at

4 one stage discussed the possibility of

5 reversing courts and having the five-day

6 period lead to tacit approvals. I wonder

7 whether that ever was considered and whether

8 that is still under consideration.

9 JUDGE KELLAR:

10 There's a member of the Advisory Council

11 back here and I think he was one of the

12 proponents of tacit approvals. So why don't

13 we let Mr. Davoli tell us why we don't have

14 that.

15 MR. DAVOLI:

16 That's still under consideration.

17 JUDGE KELLAR:

18 Tell us who you are, please.

19 MR. DAVOLI:

20 Excuse me?

21 JUDGE KELLAR:

22 Tell us who you are. Who are you?

23 MR. DAVOLI:

24 Oh, Chuck Davoli. I'm a past member of

25 the Advisory Council and apparently will be on



1 the new one. I'm a claimant attorney. That

2 was an issue early on that was intended to

3 follow what was the jurisprudential rule at

4 the time when we had problems with -- there

5 used to be a time when we didn't have a time

6 limit at all as approving the treatment.

7 And then, there was always a time limit

8 for payment of medical bills. That, even in

9 and of itself, did not happen. So the

10 jurisprudential rule was, if they don't

11 approve it within a reasonable period of time,

12 and that was at the time, it's considered a

13 tacit denial and then you proceed with a 1008.

14 That's the history, I think, of how we got the

15 tacit denial.

16 We were kind of trying to maintain that

17 rule of thumb. And so, basically,

18 arbitrarily, it was set at five business days,

19 I think, and the time receipt to consider the

20 tacit denial. But the original intent was

21 that you can go to a 1008 without interjected

22 step -- interim step with, you know, the 1010A

23 which is actually her suggestion is very good

24 if the carriers would use it. But most

25 carriers and payors, and this is my bias, are



1 in a cause for mitigation, not in a

2 utilization, reasonable utilization mode.

3 There are some carriers, you know, Mike

4 Morris left. I consider (inaudible) one of

5 the more responsible administrators out there.

6 Why argue about the necessity of an MRI when

7 you've got evidence there or it isn't there,

8 and the costs that that prohibited causes.

9 And so it depends on the philosophy out

10 there of whose basically approving. Now, you

11 know, somebody mentioned a business model of

12 IWP. They take the risks. I mean I --

13 frankly, you know, the rules shouldn't be any

14 different for them than they are for any other

15 health care provider. You want to take the

16 risks, take the risks with the $750, do it.

17 You want to take the risks beyond that, I mean

18 there are some claims out there that are

19 non-compensable.

20 And in my opinion, even though I come

21 from the claimant's side, why should an

22 employer in a non-compensable claim

23 necessarily get stuck with that? So it's

24 checks and balancing.

25 But to answer your question, the whole



1 intent was that that's how it came about. It

2 used to be a rule of thumb. Well, they

3 haven't -- you know, what's a reasonable

4 period of time? Sixty days? Ninety days? I

5 mean it's still going on. So we just

6 arbitrarily said five days.

7 Now tacit approval, what would that mean?

8 I mean from a legal standpoint, that would

9 just mean that you now, Doctor, can take the

10 risk and treat. But even -- now, hold on.

11 Hold on. You could take the risk and treat.

12 Because even if they authorize, it's not a

13 guaranteed payment; correct? I mean that's my

14 understanding. I mean they could authorize

15 the treatment, but it's no guarantee of

16 payment.

17 So, you know, we've talked about this and

18 talked about this and talked about this. You

19 know, I was a tacit denial advocate. At this

20 point, I mean we've gotten away from, and I

21 appreciate what the Workforce Commission and

22 particularly Director Kellar is doing in

23 trying to -- and we've been in some pretty

24 serious deliberations on revising the 2715

25 rule, because the intent of the guidelines,



1 and I'm a guideline advocate, was to make

2 medical treatment for the providers and for

3 the claimants more predictable, more timely,

4 more efficient.

5 And, unfortunately, the bureaucratic

6 process and the manipulation and the games

7 that are played are delaying that process, and

8 it's unfair to the system. But I don't know

9 if that answers your question, but that's the

10 history of the tacit denial. And I'm not sure

11 I'm an advocate for either anymore.

12 DR. ZIMMERMAN:

13 (Inaudible.)

14 JUDGE KELLAR:

15 I can't hear you, Dr. Zimmerman.

16 DR. ZIMMERMAN:

17 I'm sorry. The manipulation that's

18 taking place now is more to the carriers. And

19 the way that they're doing is by not

20 responding. And so if there were a cost to

21 not responding, it would encourage them to

22 actually give us a decision as opposed to

23 giving us nothing. So if there were an

24 incentive for them to actually respond,

25 instead of hoping that we'll go away, it might



1 actually make this process more predictable

2 and more expeditious.

3 JUDGE KELLAR:

4 I don't disagree with you, but I think

5 there's some adjustors in the room who would

6 say that the gamesmanship is not just on their

7 side. I think some of them, I've heard said,

8 the gamesmanship is on the health care

9 physician side as well. So, you know, we're

10 not really here to point fingers.

11 DR. ZIMMERMAN:

12 I'd love to hear them speak.

13 JUDGE KELLAR:

14 We want to try to solve whatever problems

15 we have because I think there is gamesmanship

16 in the system period, regardless of whose side

17 that's on. But I think that is a very good

18 suggestion that there should be some teeth in

19 the system if they fail to respond. Some of

20 that is delivery. Some of it's because they

21 don't have good numbers, but they should be

22 held accountable for that. Just like we hold

23 injured workers accountable, the adjustors,

24 payors, and TPAs or whomever should be held

25 accountable as well.



1 DR. ZIMMERMAN:

2 Chuck said five days was the arbitrary

3 number for Texas. (Inaudible) three days. So

4 the notion that 60 days was reasonable is

5 believed by the fact that Texas believes that

6 we give too much time.

7 JUDGE KELLAR:

8 And Texas has tacit approval.

9 DR. ZIMMERMAN:

10 Yes, ma'am. Yes, ma'am.

11 JUDGE KELLAR:

12 Anyone else? Yes, sir?

13 MR. MITCHELL:

14 Yeah. I'd just like to comment because

15 one of the first things that I thought as well

16 with the five-day period was, what about tacit

17 approvals? Jonathan Mitchell, deGravelles,

18 Palmintier, Holthaus & Fruge'. And I mainly

19 represent plaintiffs.

20 We have to remember that the purpose of

21 these rules is for the benefit of the worker.

22 And there are rules that must also say that we

23 need to assess intelligently whether or not

24 this worker deserves the treatment and whether

25 or not the treatment is compensable. But the



1 insurers, the compensation system, we've all

2 imposed ourselves into a relationship.

3 And the relationship that we've imposed

4 ourself into is a relationship between the

5 patient and its physician. And if you think

6 about it, that's the purest relationship that

7 we have in the system.

8 When the attorney becomes involved and

9 when the adjustor becomes involved and has

10 some sort of skin in the game other than just

11 the treatment and well being of the patient --

12 so since we've chosen to impose ourselves into

13 this system, shouldn't the impetus and the

14 costs be on the insurer to say, look, if

15 you're going to deny this person what his

16 doctor is saying he necessarily needs, then

17 you need to do it expeditiously. And if you

18 don't do it expeditiously, then this person

19 who is at home suffering is going to have

20 their claim approved, their treatment

21 approved.

22 And I think if you get back to the, like

23 I said, the basis of these rules which is to

24 make sure that these injured workers get the

25 treatment that they need that their physicians



1 are recommending, that I would certainly

2 advocate a reversal to a tacit approval as

3 opposed to a tacit denial.

4 JUDGE KELLAR:

5 You would suggest a tacit approval

6 instead of a tacit denial?

7 MR. MITCHELL:

8 Yes.

9 JUDGE KELLAR:

10 Okay. Thank you.

11 Anyone else? Yes, sir?

12 MR. PRICE:

13 Hello, I'm Brad Price. I represent

14 injured workers. What I want to address as

15 well as the information is one of the issues

16 I'm having in my practice is the doctor

17 submits the 1010 and I don't intend to know

18 what the UR procedure is, but the information

19 is sent to the UR doctor and the UR doctor

20 comes back and he says, you know, meet

21 criteria A, B, C, but you lack approval of

22 conservative care. And that's because, I

23 guess, the treating physician has not sent in

24 whatever documentation he feels is required.

25 But the issue that I have is the carrier



1 has approved all of that treatment and is in

2 possession of all of those records. So it's

3 putting the illness on me or the doctor to run

4 around and scramble around and try to find out

5 where his PT, where his therapy was or

6 whatever the conservative care was, and then

7 try to submit it in time for the 1009 to get

8 it before the Medical Director.

9 And I think there needs to be some kind

10 of -- some kind of mechanism in place that

11 when the submission is made and the carrier is

12 in possession -- I had one that I looked at

13 today. They said, we did not have a

14 discogram. Well, 45 days ago, they approved a

15 discogram. It was done. And I know they had

16 the report, but the UR is denying and that

17 they don't have the information, which is all

18 being in the possession of the carrier.

19 I don't think there's -- assuming that I

20 even get notice of the UR denial, you know,

21 there needs to be some kind of mechanism or

22 some kind of stick that, you know, I as an

23 attorney can say, hey, look, you have this

24 information and you're denying it solely

25 because you're saying you don't have it. And



1 that's just a practical problem that I face

2 once, twice a week.

3 JUDGE KELLAR:

4 Thank you.

5 MS. ROBERTSON:

6 I have a question about the 1010 for

7 office visit. At one point, they was saying

8 we didn't need a 1010 for referrals. Some

9 people want it. Some people won't approve

10 without it. Some carriers won't take a

11 patient without an approved 1010. And then we

12 have this office visit situation, I think it's

13 the first year, they approve up to 12 visits.

14 And every year after, then it's four to six.

15 And it's confusing because I don't know

16 whether to send a 1010 for a office visit or

17 to -- because some does -- some don't want it.

18 They'll say 1010 is not required for office

19 visits or 1010 is not required for referrals.

20 But a lot of carriers don't take a patient

21 without the 1010 approving them to see their

22 doctor.

23 JUDGE LUNDEEN:

24 Okay. So this is a repeating issue that

25 we're having. The law does not require a 1010



1 for a referral. The doctor says it's his

2 patient or her patient and makes a referral to

3 another doctor of a different specialty.

4 Under the Workers' Compensation law, you have

5 the right to choose a specialist in each field

6 as the injured worker.

7 Now as the medical provider, which is the

8 question that you're asking, you don't need

9 the 1010 for the referral. But if you are the

10 receiving doctor or medical provider, then you

11 probably need to put in your 1010 for the

12 visits that you intend to have. Now what is

13 the scope of that visit?

14 You don't know, but you know you have

15 your initial evaluation. Is it a level five?

16 Is it a level four? What a lot of providers

17 are suggesting to us that they have done, and

18 I'm not saying that this is the answer, but it

19 is what we are hearing across the state, is

20 they're putting in for the highest level for

21 their initial evaluation appointment and then

22 putting in for the subsequent appointments and

23 putting things in like up to level five

24 depending on what the patient's needs are or

25 if there's extra tests that you're going to



1 need.

2 Maybe, typically, you're a type of

3 provider that normally does X-rays on the

4 first visit or certain other tests, but you're

5 not going to do need those, but maybe you will

6 need those on followup, you can put it in as

7 your regular general request. But then say,

8 and patient may need, but will determine at

9 visit.

10 And those seem to be getting through the

11 system a little bit better. So your referral

12 MD doesn't put the 1010 in for the referral.

13 The referral MD simply makes the referral, but

14 the recipient MD is going to make the request

15 for the office visits for his or her practice.

16 MS. ROBERTSON:

17 Okay.

18 DR. ZIMMERMAN:

19 I apparently have an opinion on every

20 subject. The problem is that carriers will

21 sometimes suggest that certain specialties are

22 not medically necessary and denied the

23 referral based on the tact that they're

24 determining that patient X, who has been seen

25 by a primary care doesn't need to see an



1 orthopedist or doesn't need to see a pain

2 management specialist and are imposing

3 themselves in between the referring physician

4 and the referral and the patient -- and the

5 physician who is receiving the referral.

6 JUDGE KELLAR:

7 Well --

8 JUDGE LUNDEEN:

9 As -- go ahead.

10 JUDGE KELLAR:

11 I was just going to say that all patient

12 care is under the umbrella of reasonable and

13 necessary and work related.

14 DR. ZIMMERMAN:

15 Yes, ma'am. But for a carrier to render

16 the determination as to whether a referral is

17 reasonable and necessary has them serving in

18 the role as provider.

19 JUDGE KELLAR:

20 Well, the statute provides that the

21 injured worker has the right to a physician in

22 a different field of specialty. And we've had

23 referral issues before the medical treatment

24 guidelines, and I thought this issue would

25 have been laid to rest.



1 JUDGE LARAMORE:

2 It's called a Motion to Compel Choice of

3 Physician.

4 DR. ZIMMERMAN:

5 It's an individual, not a specialty.

6 JUDGE LARAMORE:

7 Not a specialty. What I'm saying is when

8 you make the referral, if the carrier is

9 decided that they don't think that that's

10 reasonable, that that referral is reasonable,

11 then the claimant files a 1008 and attaches a

12 Motion to Compel Choice of Physician in this

13 Specialty.

14 And their evidence is here is the

15 prescription. I've been to see my doctor.

16 Here's the prescription on pain management. I

17 saw my ortho. He says I now need pain

18 management. And let the adjustor come forward

19 and explain why they think that that specialty

20 is not needed.

21 And you -- the Act provides for an

22 expedited process for that. You could get on

23 the docket in two weeks if you file. But

24 don't just file a 1008 and say, I want Choice

25 of Physician. They need to file with it a



1 motion and order so we can set it on the rule

2 docket.

3 And you'll get on the rule docket within

4 two weeks. And you'll get a decision yeah,

5 yeah or no, no. But there's an expedited

6 process applied in the Act for Choice of

7 Physician issue.

8 JUDGE KELLAR:

9 Yes, ma'am?

10 MS. TARKINGTON:

11 I have a question for that lady right

12 there.

13 JUDGE KELLAR:

14 Ma'am?

15 MS. TARKINGTON:

16 I had a question for the lady walking

17 out. Sorry.

18 JUDGE LARAMORE:

19 I can wait.

20 MS. TARKINGTON:

21 No, I can wait.

22 JUDGE LARAMORE:

23 Go ahead.

24 MS. TARKINGTON:

25 What you were just saying, can you



1 explain that to me one more time what you were

2 saying, because I'm not an attorney and I

3 don't understand documents, stuff like that.

4 Because I -- what I understood what you were

5 saying is I -- I'm a physician's office and I

6 refer to another physician's office, I don't

7 have to do a 1010 form or anything like that;

8 is that correct?

9 JUDGE LARAMORE:

10 That's correct.

11 MS. TARKINGTON:

12 Okay. So --

13 JUDGE LARAMORE:

14 You're -- you work for a chiropractor;

15 correct?

16 MS. TARKINGTON:

17 Yes, ma'am.

18 JUDGE LARAMORE:

19 You're supplying chiropractic treatment.

20 And now, your chiropractor has decided that

21 you need an orthopedic surgeon?

22 MS. TARKINGTON:

23 Correct.

24 JUDGE LARAMORE:

25 And your chiropractor has written a



1 prescription -- referral for an orthopedic

2 surgeon?

3 MS. TARKINGTON:

4 Right.

5 JUDGE LARAMORE:

6 And you've contacted the carrier and the

7 carrier says, we need to send him to Prime

8 Medical or to doc in the box. Before he came

9 to you or while he was coming to you and our

10 doc in the box does not say he needs an

11 orthopedic.

12 MS. TARKINGTON:

13 Okay.

14 JUDGE LARAMORE:

15 Okay. So we're not going to agree.

16 There's a disagreement between our doctor, our

17 GP and your chiro or two GPs, two doc in the

18 boxes, okay, intern or whatever that he needs

19 this specialty care. The claimant, the

20 patient can file a 1008 with our office and

21 file a motion asking for the judge to look at

22 the issue of Choice of Physician in that

23 specialty. And you can get on the docket for

24 a hearing within about two weeks.

25 MS. TARKINGTON:



1 So the patient can do that?

2 JUDGE LARAMORE:

3 Yes.

4 MS. TARKINGTON:

5 Okay. Where -- and this might be a

6 stupid question, but where is the patient

7 supposed to know that? From where? Or who?

8 Because I can guarantee you, my patients don't

9 know that.

10 JUDGE LARAMORE:

11 You know, your ignorance of the law is no

12 excuse. You ever heard of that? Okay.

13 MS. TARKINGTON:

14 Right.

15 JUDGE LARAMORE:

16 You know, you can't -- you know, that's

17 just the way it is. Now, I would suggest that

18 if you've got patients that don't understand

19 it, that they open the phone book and call and

20 make an appointment and see -- there's lawyers

21 all out here. They'll throw you cards like

22 crazy, you know, so that they can file that

23 motion.

24 MS. TARKINGTON:

25 Okay.



1 JUDGE LARAMORE:

2 And they could call our office. We have

3 an ombudsman in our office, a DRS who will

4 talk to unrepresented claimants for people who

5 just call with questions, look, I'm having

6 trouble. And they'll tell them, come down

7 here and pick up this form and we'll make sure

8 that you get the form filled out and we'll get

9 you in front of the judge. But you're always

10 at a disadvantage if you're an unrepresented

11 claimant. They should all have

12 representation.

13 MS. TARKINGTON:

14 Right. I totally agree. And patient

15 care should come first no matter what. That's

16 how I believe it should be.

17 JUDGE LUNDEEN:

18 And so just that you know in the future,

19 if you have a pen, or you can contact our

20 office. But you can find this actual statute,

21 which is very, very self-explanatory in Title

22 23, which is the Workers' Compensation Act,

23 Section 1121.B1. And it specifically states

24 that the employee shall have the right to

25 select one treating physician in any field or



1 specialty. Employee shall have the right to

2 an expedited summary proceeding pursuant to

3 Revised Statute 23, Section 1201.1.K8 when

4 denied his right to an original physician of

5 choice.

6 A Workers' Compensation judge shall set

7 the hearing for the matter within three days

8 of receiving the employee's motion for the

9 expedited hearing. The hearing shall be held

10 not less than ten nor more than 30 days after

11 the employee or his attorney files the motion

12 for an expedited hearing.

13 Then, it goes on to talk about how the

14 judge provides it. Now in case you don't

15 remember all of that or couldn't write that

16 quickly, you can go on to Laworks.net and you

17 can find it there. Or you can go onto the

18 Louisiana Legislature's website and you can

19 pull it up under the Title, which is 23 and

20 then the actual statute number, which

21 Subsection 1121. And you can find many things

22 there.

23 And since you are -- I assume you're

24 working in the medical field? Are you a

25 medical provider?



1 MS. TARKINGTON:

2 Yes, ma'am.

3 JUDGE LUNDEEN:

4 All right. Well, you're also one more

5 line of advocacy for that patient. So

6 although your patient may not be a lawyer, now

7 you know what to tell them.

8 MS. TARKINGTON:

9 Right. Exactly. We don't do -- we've

10 never really done Workman's Comp, so I have

11 two cases with attorneys now. And that's why

12 I don't know a lot. I'm -- and that's what I

13 came here for is to learn and make sure that

14 my patients get the best care first and

15 foremost before anything. And that's when the

16 pharmacies were talking and Dr. Zimmerman and

17 these attorneys, and I agree that patient care

18 should come first. It's all the other stuff

19 that we have to go through, and I think that

20 needs to change as well and do a smooth

21 transition and make sure our patient gets

22 better faster.

23 JUDGE KELLAR:

24 If you go to Laworks.net, under Workers'

25 Compensation, you can find a list of all of



1 the district courts and the ombudsman in each

2 one of those offices called a Dispute

3 Resolution Specialist or DRS. You can call

4 them and they can help your claimant navigate

5 the system. They're not going to give them

6 legal advice, but they'll tell them what forms

7 they need to file in order to get the relief

8 that they're seeking.

9 MS. TARKINGTON:

10 Thank you.

11 MR. GREEN:

12 There's also some well-written bulletins

13 on the website.

14 JUDGE KELLAR:

15 Can't hear you. Who are you?

16 MR. GREEN:

17 There's also some --

18 JUDGE KELLAR:

19 Who are you, Will Green?

20 MR. GREEN:

21 There's also some extremely well-written

22 bulletins on the website.

23 JUDGE KELLAR:

24 Who are you, Will Green?

25 MR. GREEN:



1 My name is Will Green. And I was just

2 going to say, I appreciate y'all doing this.

3 I think, you know, the reality is, there's a

4 lot questions, but there's a lot of good

5 answers to the questions. And, you know,

6 we -- one of the -- what I -- when I worked at

7 the Workforce Commission, one of the best

8 parts of my job was getting to go out and

9 actually sitting in the physicians' offices

10 and, you know, there was a lot of issues.

11 But the reality is that it was just that

12 they knew the questions, they just didn't know

13 how to get the answers. And there is a lot of

14 good answers and there is a lot of solutions

15 to your problems out there that are already in

16 the law.

17 And just to see the light bulb go off in

18 some offices was pretty amazing and they'd

19 say, oh, my gosh, I didn't know those answers

20 were there. And I think one of the things

21 that the office did was, to me, incredible was

22 contracting with a guidelines provider. And

23 every physician in here, every medical

24 provider, I think, still has access to that

25 medical guidelines software where you can



1 literally go in there, put an ICD or a code in

2 and it will just spit out for you exactly what

3 documentation you need to get to hear.

4 So when there's tools like that, but it's

5 just, I think, getting -- you know, getting

6 the answers in place. And Madam Director, you

7 know, you've talked about a lot of these

8 things. So I think the ball is already

9 rolling on where you don't have answers to the

10 questions, they are common questions, and so

11 you have put some solutions in place.

12 But, you know, there's a process there.

13 And so I guess in furtherance of that, will

14 there be an opportunity for the issues, the

15 questions that maybe we don't have an answer

16 for and maybe are a gray area, will those be

17 vetted through the Advisory Council and

18 discussed or can you comment on that for me,

19 please?

20 JUDGE KELLAR:

21 We actually have a 2715 Committee. The

22 rules which help us to navigate medical

23 treatment guidelines are in litigation at the

24 19th Judicial District Court. And so what we

25 would like to do is to offer a compromise to



1 the plaintiffs by way of modifying these rules

2 before we have to actually go back to a trial

3 on the merits. So we have a Committee, it's

4 2715, for that purpose.

5 But, you know, I think everybody in that

6 room just about is an attorney or some

7 stakeholder. But we realized -- I realized

8 that we haven't heard from you. You are the

9 guys who actually use 2715.

10 And although we sit in our Ivory Tower

11 and we can, you know, rein down some rules for

12 you to work, we didn't hear from you. And I'm

13 glad that I have taken this opportunity to

14 hear from the guys who actually work with 2715

15 around the state because you have been very

16 insightful in the sense that I've heard a lot

17 of things that I never imagined were

18 difficulties.

19 So while the 2715 team will be trying to

20 make modifications to a rule, we will have the

21 benefit of the transcripts of all of the Town

22 Hall Meetings that we've had throughout the

23 state to refer to. And we will be making

24 modifications based upon the comments that

25 you've given us, the suggestions that you've



1 given us.

2 And then once we've done that, we will

3 take what we believe was sufficient

4 modifications to the Workers' Comp Advisory

5 Council and probably give them copies of the

6 transcript as well so they'll know what your

7 comments were, and then submit what we think

8 is a fix to the plaintiffs and hopefully

9 resolve the issues. That's what I intend to

10 do.

11 MR. GREEN:

12 Thank you.

13 JUDGE KELLAR:

14 Yes, sir?

15 MR. BLACKWOOD:

16 Can you tell us who is on your 2715

17 Committee and how it was derived; like, who

18 appointed the people to it?

19 UNKNOWN:

20 It's a secret.

21 JUDGE KELLAR:

22 No, it is not a secret. We have Meredith

23 Trahant, Attorney General in our office who

24 has been working closely with the litigation

25 since it began; Chuck Davoli, who is on the



1 Advisory Council; Michael Morris is on the

2 Advisory Council; and Will Green; myself. Am

3 I missing someone?

4 MR. GREEN:

5 Greg Hubachek.

6 JUDGE KELLAR:

7 Greg Hubachek, who was on the Advisory

8 Council. He was not reappointed this year.

9 But these people were chosen because they're

10 either intimately familiar with the litigation

11 like Meredith or they helped to write the

12 original 2715 Rules. So we're hoping they'll

13 be instrumental in revising it and myself, of

14 course. The Director -- the Executive

15 Director of the agency, Ava Deja and the

16 Deputy Director of the agency, Kathy Wells,

17 have both sat in on some of the those 2715

18 meetings.

19 DR. ZIMMERMAN:

20 Why aren't there any medical providers on

21 that committee?

22 JUDGE KELLAR:

23 Excuse me?

24 DR. ZIMMERMAN:

25 Why aren't there any medical providers on



1 that committee?

2 JUDGE KELLAR:

3 Well, we only have one Medical Director

4 that we listen to in terms of the 1009

5 process.

6 DR. ZIMMERMAN:

7 But you've reached out to the community

8 for input beyond your agency.

9 JUDGE KELLAR:

10 Yes, we have. And what Dr. Picard

11 generally does is advise us on the medical

12 treatment guidelines themselves, the four that

13 are currently part of the guidelines, the

14 technical, medical stuff. The 2715 is more

15 the process by which we implement the medical

16 treatment guidelines. Does that --

17 DR. ZIMMERMAN:

18 And the life blood of the providers who

19 use them.

20 JUDGE KELLAR:

21 I understand. Thank you.

22 Is there anything further?

23 Dr. Picard, at this time, would you like

24 to tell us some of the things that we look for

25 when you are reviewing the 1009s?



1 DR. PICARD:

2 Yes. So this is repetitive for some of

3 the people that I see that have been in some

4 of the other meetings. But with the 1009,

5 it's a disputed claim where you have an

6 insurance company on one side of that claim

7 and a provider or patient representative on

8 the other side.

9 The procedure or therapy or whatever it

10 happens to be that's been requested on behalf

11 of the injured worker that has been denied by

12 the insurance company that have made the

13 decision on whether that denial is going to

14 stand, because the procedure does not meet the

15 medical treatment guidelines or that it's

16 going to be reversed, and I'm going to approve

17 it, because I think it does meet the medical

18 treatment guidelines. From the insurance

19 company's standpoint, one of the big problems

20 we see is with tacit denials.

21 Because what happens in that instance is

22 I don't have anything from the insurance

23 company to explain why they denied the

24 procedure. So my decision is based completely

25 upon the provider's documentation as to



1 whether or not that meets the medical

2 treatment guidelines. More often, that's

3 going to result in an approval. Of course, I

4 still look at it to be sure it does meet the

5 guidelines.

6 But without having the other side,

7 without having the insurance company's

8 reasoning or showing some cause for their

9 denial, then that's going to be a problem for

10 the insurance company, because most of those

11 are going to be approved.

12 The other thing that I do need to see

13 from the insurance company when I do get a

14 denial letter that documents why they deny a

15 procedure is the information in that letter

16 has to be correct. So often times, the

17 insurance company might suggest that a patient

18 does not have radiculopathy, for example, when

19 the provider does clearly state that they do.

20 So if that information is incorrect, I'm going

21 to side with the provider, assuming everything

22 is documented and meets the guidelines from

23 the patient's representative standpoint.

24 From the provider standpoint, and that's

25 the other side of the 1009 dispute, their



1 claim has been denied and they want relief,

2 which is why they're requesting us to take a

3 look at it. Basically, what I just need to

4 see is good documentation to show why the

5 procedure or therapy or whatever they're

6 requesting meets the guidelines. As long as

7 those guidelines criteria are documented, then

8 that procedure is going to be approved.

9 If I deny a procedure, you can be assured

10 it's because it doesn't meet the guidelines.

11 And there are specific guidelines that apply

12 for a particular procedure, certain surgical

13 procedures, injections and so forth, certain

14 things have to be documented to say that

15 procedure meets the guidelines and it should

16 be approved. As long as that documentation is

17 there, then we can approve and override the

18 insurance company's denial.

19 In that case or in the case that I'm

20 going to say the insurance company was right,

21 which is less than a third of the time, based

22 on the numbers we've looked at, it's going to

23 be clearly stated in the denial letter that

24 comes from our office what was missing and why

25 that procedure does not meet the guidelines.



1 So if therapy wasn't done or some other

2 criteria that hasn't been documented, that

3 provider or patient representative has the

4 option to go back and do that therapy or

5 document what wasn't there and file another

6 1010 and possibly get that procedure approved.

7 Yeah, the other thing is we -- I'm sorry.

8 JUDGE KELLAR:

9 Go ahead.

10 DR. PICARD:

11 There is some other things to add is we

12 do need adequate documentation. Sometimes we

13 get very little documentation to go by. You

14 can't just request a procedure and send me a

15 brief note saying, you know, I want this

16 procedure. There has to be adequate

17 documentation that therapy was done and other

18 things that are required as per the

19 guidelines.

20 Any specific questions regarding

21 guidelines of a dispute problem that anybody

22 would like to add?

23 DR. ZIMMERMAN:

24 I was told by the Assistant Attorney

25 General Green in the past that the 1010



1 process is governed by a different standard

2 than the 1009 process. Is that accurate?

3 I was told that the 1010 process is

4 governed by medical necessity; whereas, the

5 1009 process is governed by guidelines. Is

6 that -- am I understanding that correctly?

7 JUDGE KELLAR:

8 Why don't we let Will Green clarify that

9 for us?

10 MR. GREEN:

11 Can you repeat the question? You know,

12 Dr. Zimmerman, we talked a lot and as you've

13 done today, yet separate conversations. And I

14 enjoyed every one of them. I learned some and

15 I think, hopefully, you did about the internal

16 process. And I think it's helped me in my new

17 role working for a self-insured fund.

18 But, boy, I don't -- the only thing,

19 again, I don't serve in that capacity and I

20 definitely don't give legal advice. And,

21 hopefully, I didn't back then. But the 1009

22 process from the 1008 is, you know, there's a

23 preponderance of evidence standard on

24 variances and things like that. And then,

25 there's a -- for the -- to overturn the



1 Medical Director at the 1008 level, maybe

2 that's what I was referring to.

3 And I'll get -- since I don't serve in

4 that capacity, I don't necessarily feel

5 comfortable, but there is definitely different

6 standards depending on if it's a 1009 to a

7 1008 or a variance or not covered versus

8 something in the guidelines. And I know

9 there's different aspects to that, but I don't

10 remember anything about the 1010 and 1009.

11 JUDGE LUNDEEN:

12 May I?

13 JUDGE KELLAR:

14 Sure.

15 JUDGE LUNDEEN:

16 The medical treatment guidelines, and

17 I'll let the doctor address this in variances

18 because they're slightly different. But the

19 guidelines are the guidelines. They tell you

20 what you have to produce in order to meet the

21 guideline and to get the treatment approved.

22 That's the standard. When you come out of the

23 guideline process, when you are appealing the

24 1009 to the court by filing a 1008 form.

25 So you're not filing a lawsuit saying you



1 don't like what the Medical Director said, the

2 burden is clear and convincing that the

3 Medical Director got it wrong and didn't

4 follow the guidelines. So that's the only

5 legal difference.

6 But the medical treatment guidelines

7 don't have different guidelines as written.

8 They are what they say they are. You have to

9 meet certain requirements in order to get your

10 medical care approved. And I'll let the

11 doctor address the requirements for variances.

12 They are different, but they are very

13 specific.

14 DR. ZIMMERMAN:

15 Before we get to that, is there a stip

16 for when carriers deny based on criteria other

17 than the guidelines?

18 JUDGE LUNDEEN:

19 No. That's one of the issues that we're

20 looking at is putting more teeth into this.

21 Certainly, you have the right to come to our

22 courts and we will determine whether or not

23 the carriers have done something in conformity

24 with -- or, actually, we don't look at that.

25 What we look at is what the Medical Director



1 did. That's what we're bound by. That's what

2 the legislature told us were our rules in

3 determining whether or not we can overturn the

4 Medical Director's findings.

5 DR. ZIMMERMAN:

6 Give you a concrete example, Sedgewick

7 hires a --

8 JUDGE LUNDEEN:

9 And let me give you -- let me interrupt

10 you for a moment. We asked you to speak in

11 terms of hypothets. We ask you not to address

12 pending cases directly.

13 DR. ZIMMERMAN:

14 I'm not speaking of pending cases

15 directly.

16 JUDGE KELLAR:

17 Not even specific cases.

18 DR. ZIMMERMAN:

19 I'm -- I'm not speaking --

20 JUDGE KELLAR:

21 This is a hypothet; right?

22 DR. ZIMMERMAN:

23 This is hypothetically in the future, an

24 individual carrier who might or might not be

25 called Sedgewick, and hires an individual UR



1 reviewer who might or might not be called

2 Saeed Hayek, who uses a criteria of, has the

3 patient returned to work or not. That is his

4 only criteria as to whether or not he will

5 approve care. He does that consistently. And

6 it's his only criteria on every case.

7 I would love to be able to say that he

8 should not be able to review for that carrier

9 before the 1010 process, but I can't. And I'd

10 love to be able to have the Committee allow

11 him to be excluded when he refuses to follow

12 the guidelines.

13 JUDGE LUNDEEN:

14 So we are -- Judge Laramore is going to

15 answer. Let me -- may I finish first?

16 JUDGE LARAMORE:

17 Yes.

18 JUDGE LUNDEEN:

19 The likelihood is that if the medical

20 treatment guidelines have been met when you

21 file your 1009, you're going to get that

22 medical care regardless of what this

23 particular examiner says.

24 DR. ZIMMERMAN:

25 Thirty days later.



1 JUDGE LUNDEEN:

2 The second part is that your recourse

3 right now may not be under the medical

4 treatment guidelines, but a complaint might be

5 more appropriate to the Department of

6 Insurance. Or if we can help to educate a

7 carrier about the guidelines, if you want to

8 contact us, so that we can provide education

9 to people who are working with this within the

10 system, we are happy to do so.

11 And I'll turn it over to Judge Laramore.

12 DR. ZIMMERMAN:

13 Who would I contact? The director?

14 JUDGE LARAMORE:

15 No.

16 DR. ZIMMERMAN:

17 No? Okay.

18 JUDGE LARAMORE:

19 The insurance company and the employer

20 get the right to choose whoever they wish to

21 examine the patient periodically or to do

22 their UR or they can call on a genie. We

23 don't care. The employee, the claimant gets

24 the right to treat with whomever they wish.

25 You or somebody else can -- the insurance



1 carrier may not like who he wants to treat.

2 It does not matter.

3 If they're using a UR person that you

4 don't like and you say it's going to be the

5 same thing every time, well, then it just is.

6 And you can treat it like a tacit denial and

7 shove it right on up the ladder to Dr. Picard

8 here and show that you've done the right thing

9 that you need to do. We don't want to get

10 into a situation where anybody's controlling

11 each side's right to the choice of physician

12 of their choice. That is not even a slippery

13 slope. That's a freaking cliff, okay. And we

14 don't want to go there.

15 JUDGE KELLAR:

16 Listen --

17 DR. ZIMMERMAN:

18 What --

19 JUDGE KELLAR:

20 Dr. Zimmerman?

21 DR. ZIMMERMAN:

22 -- about --

23 JUDGE KELLAR:

24 Listen.

25 DR. ZIMMERMAN:



1 I --

2 JUDGE KELLAR:

3 Listen. And I think I already said that

4 there's a lot of gamesmanship in the system.

5 I don't know who this individual is and I

6 don't know if he's playing games or whatever.

7 But I do believe that if there is somewhere in

8 the system where an individual company or

9 individual is deliberately denying procedures

10 that are in the medical treatment guidelines

11 and you can show that it's a deliberate

12 misrepresentation, then I think there needs to

13 be some teeth in the guidelines. Because if

14 it's clearly in there, then the injured worker

15 is clearly entitled to it.

16 But we don't have anything in the rules

17 at the moment which says that if it's clearly

18 in there and he's clearly entitled to it and

19 the adjustor or payor or UR denies it, that

20 they should be assessed a penalty and attorney

21 fee. So I think that in some cases in the

22 medical treatment guidelines, we need some

23 stips. And they are not in there.

24 So I hear you. And we are addressing

25 those kinds of issues.



1 DR. ZIMMERMAN:

2 Okay.

3 JUDGE KELLAR:

4 Thank you so much.

5 Anyone else?

6 Okay. Thank you guys so much for coming

7 this afternoon and telling us the challenges

8 and rewards of the medical treatment

9 guidelines. We've heard you. I've been all

10 around the state. This is the seventh and

11 final Town Hall Meeting. We are going to

12 consider your comments and try to incorporate

13 some of them into revisions of the rule.

14 And, Dr. Zimmerman, we are going to

15 consider a provider on that panel to redo the

16 rules. And, hopefully, these have been

17 beneficial to the extent that we are able to

18 make modifications that are going to make the

19 medical treatment guidelines more

20 user-friendly for you.

21 If you did not make a comment or ask a

22 question or suggestion that you wanted to, we

23 are still available to you. You can find each

24 of us on -- except Dr. Picard. Nobody can

25 talk to him. You can find all of us on the



1 website Laworks.net under Workers'

2 Compensation. I'm Sheral Kellar, Judge

3 Lundeen, Judge Laramore, Denise Lee, Mediator,

4 Ms. Freda Chaucer in the Medical Services

5 Section. Thank you.

6 (WHEREUPON, THE MEETING ADJOURNED.)

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1 R E P O R T E R ' S C E R T I F I C A T E

2 I, KELLY S. PERRIN, a Certified Court

3 Reporter, Certificate #23035, in good standing with

4 the State of Louisiana, as the officer before whom

5 this meeting was taken, do hereby certify that the

6 foregoing 124 pages;

7 That this testimony was reported by me in

8 stenographic machine shorthand by Computer-Aided

9 Transcription, transcribed by me or under my

10 personal direction and supervision, and is a true

11 and correct transcript to the best of my ability

12 and understanding;

13 That the transcript has been prepared in

14 compliance with transcript format guidelines

15 required by statute or by rules of the board, that

16 I have acted in compliance with the prohibition on

17 contractual relationships, as defined by Louisiana

18 Code of Civil Procedure Article 1434 and in rules

19 and advisory opinions of the board; that I am not

20 of counsel nor related to any person participating

21 in this cause and am in no way interested in the

22 outcome of this event.

23

24

25



1 This certification is valid only for a

2 transcript accompanied by my handwritten or digital

3 signature and the image of my State-authorized seal

4 on this page.

5 Signed:

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7 KELLY S. PERRIN,CCR

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town hall meeting 9/30/2016 · 2016. 10. 27. · town hall meeting 9/30/2016 page 4 court reporters...

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