After Sunset

Sunset Advisory Commissioners unanimously approved a series of changes to the troubled Division of Workers' Compensation at the Texas Department of Insurance on Tuesday, but not before aggressively rewriting the Sunset staff's original recommendations to improve the division's medical quality review process. The process, which is intended to rout unscrupulous doctors from the workers' comp system, came under scrutiny after former employees said the division was stalling enforcement of doctors found to be abusing the system.

After weeks of private meetings and work sessions, Sunset chairman state Sen. Glenn Hegar, R-Katy, and state Rep. Rafael Anchia, D-Dallas, modified all of the recommendations in the medical quality review section of Sunset's report. In its approved modifications, commissioners voted to allow stakeholder input before the division adopts a formal set of procedures for reviewing doctors; to leave the oversight role of the division's medical advisor unchanged; and to leave intact the Quality Assurance Panel, one of two panels that investigates physician fraud. The recommendations, as adopted, will be drafted into a bill for consideration by the next Legislature. 

Sunset staff originally recommended taking oversight from the physician medical advisor and giving it to bureaucrats, along with dissolving the QAP, a panel that serves as a second layer of review over doctors accused of fraud or abuse. Doctors who sit on the panel balked, saying staff never interviewed them before making the recommendation, and that the other proposals would move too much medical review power from physicians and to division administrators. In Tuesday's vote, the QAP more than survived: Commissioners recommended the panel's existence be written into law to protect it from being scuttled in the future. "In my personal view, it's important that we rely on doctors and their expertise, in peer review," Anchia said. "And we want to make sure the medical advisor is still centrally involved in enforcement actions and investigations."

Sunset Interim Director Ken Levine said in an interview last week that his staff expected changes to the recommendations as a normal part of the process. "We understand that, on anything that we’re writing, that there are often alternatives by those who have a stake in the system," he said. "We certainly support the elected officials' decision on what they would like to do regarding the Division of Workers’ Comp."

Several interest groups, including the powerful Texas Association of Business, pushed for the revisions in advance of Tuesday's vote. "TAB feels that the changes dealing with the MQRP will dramatically improve the process of monitoring providers in the workers' compensation system," said TAB lobbyist Cathy DeWitt.

Former division employees charged in May that not only was the medical review process broken, but that division Commissioner Rod Bordelon made questionable decisions in dismissing nine cases against doctors whose removal had been recommended by two different panels. In a direct challenge to Bordelon's unilateral power to dismiss cases at the enforcement level, Sunset citizen member Charles McMahen moved to allow rank-and-file division employees to send cases dismissed by the commissioner to appropriate occupational licensing boards or the attorney general's office for review. The motion was supported by Anchia; state Sen. Robert Nichols, R-Jacksonville; and state Sen. Joan Huffman, R-Houston, but ultimately failed. Bordelon issued a one-sentence statement Tuesday: “We appreciate the work of the Sunset Commission and staff and look forward to working with them on their recommendations."

The recommendations coming out of Tuesday's Sunset meeting aren't the last word — state Rep. Joe Deshotel, D-Beaumont, who chairs the House Committee on Business and Industry, plans to hold a separate hearing on workers' comp enforcement issues on July 29.