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Proposed Legislation Threatens to Take Medical Decisions Away From Physicians

LB 429, introduced by Senator Jim Smith, seeks to take treatment decisions for your work-related injury out of you and your doctor’s hands.  The bill which was first introduced on January 16, 2015 would amend the Nebraska Workers’ Compensation Act so that medical care provided under the Act would be in accordance with the “official disability guidelines published by the Work Loss Data Institute.”  But do not be fooled, there is nothing “official” about these guidelines.

Current Nebraska Law                               

Under Nebraska Statute 48-120, employers are liable for all reasonable medical, surgical, and hospital services need to treat a work injury.  Nebraska Statute 48-120 also provides an immense benefit to injured workers – the ability to pick his or her own doctor.

Specifically, §48-120(2)(a) and the applicable Nebraska Workers’ Compensation Court Rules provides that after a work-related injury occurs, employers are supposed to notify the injured worker of his or her right to name a family doctor as the primary treating physician for the work injury.

According to the statute, an employee is allowed to elect as a treating physician a physician that has a documented treatment history with the injured employee or who has maintained medical records for an immediate family member.  If the employee does not have a family doctor or fails to name one, then the employer has the right to choose the treating physician.  However, if the employer fails to notify the employee of his or her right to select a physician then the employee may elect any physician as the primary treating physician for his or her injury.  The selection of a treating physician is only half the story.  Regardless of who picks the treating physician, the employer is liable for the care prescribed by the treating physician as well as any referrals made by the physician.

Proposed Legislation

LB 429 would handcuff the treating doctor’s ability to prescribe care and significantly erode the injured worker’s right to immediate medical care.  As proposed, LB 429 would require all medical services provided under the Nebraska Workers’ Compensation Act to be in accordance with the disability guidelines published by the Work Loss Data Institute.  The medical set forth in the guidelines would be presumed to be reasonable and necessary.  What happens when your treating doctor wants to order medical services outside what is published in the guidelines?  Well LB 429 address that too.

Services that do not fall within the guidelines are only presumed reasonable and necessary if prior authorization for the services is obtained from the workers’ compensation insurer, risk management pool, or self-insured employer.  This means that employers and their work comp insurance carriers are not responsible for services that fall outside the guidelines unless pre-authorization is obtained.  This pre-authorization process will only lead to one thing – delay and denial of essential medical care.

LB 429 does provide for a process by which injured workers and employer can request a finding by an independent medical examiner where the employer or its work comp insurance carrier has denied payment for outside the guidelines medical services or denied pre-authorization for such services.  However this review process provides little help for injured workers desperately in need of immediate care.

What is the Work Loss Data Institute?

According to its website the Work Loss Data Institute is an “evidence-based guideline company” and publisher of the Official Disability Guidelines product line.  The Work Loss Data Institute states that the Official Disability Guidelines “provides evidence-based disability duration guidelines and benchmarking data for every reportable condition, integrated with evidence-based medical treatment guidelines for work-related conditions.”  “Insurance companies, healthcare providers, TPAs, case managers and employers can use [the Official Disability Guidelines] to facilitate optimal health and RTW outcomes and massive cost-saving as a byproduct of evidence-based medical management. . .”

What Does This Mean for Injured Workers?

If passed, the effect of LB 429 would be devastating to injured workers.  By needlessly intervening in the physician-patient relationship LB 429 effectively takes away an injured workers right to pick his or her physician by taking control out of the doctor’s hands and placing control in the hands of the Work Loss Data Institute’s Official Disability Guidelines.  Combined with the requirement to obtain pre-authorization for all medical services outside the guidelines, injured workers will be left waiting for the care they need.

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