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"A Workplace of Intimidation"

Was it a broken process or a breakdown in leadership that kept bad doctors from getting removed from the state workers' compensation system? Lawmakers sought to answer that question on Monday but left a House hearing with no clear understanding of why hundreds of potential enforcement actions stalled or disappeared entirely over the last half-decade.

Was it a broken process or a breakdown in leadership that kept bad doctors from getting removed from the state's workers' compensation system? That question sparks deep disagreement between the Division of Workers' Compensation's current administrators and its former employees, all of whom testified before the House Business and Industry Committee on Monday as the panel considered legislative changes to the division next session.

Lawmakers quizzed former staff members and Commissioner Rod Bordelon over a backlog of hundreds of cases that reviewers sent to enforcement in the past half-decade, including at least nine enforcement-level investigations that Bordelon unilaterally closed in January. “I’m just really, really suspicious of what’s happening,” said state Rep. Chente Quintanilla, D-El Paso.

The hearing comes a time of tumult at the division, which is charged with ensuring that doctors who treat injured workers in the state workers' comp system are providing quality care. At least half a dozen employees — the division’s medical advisor, its assistant medical advisor and attorneys and support staff involved in enforcing cases — were part of an exodus earlier this year, either getting terminated or resigning in response to the spiking of cases they wanted pursued. A few employees have publicly charged that the division's leadership has improperly allowed abuse and fraud by some doctors to persist despite compelling evidence of misconduct. “It is a workplace of intimidation [and] secrecy. Procedures are not transparent," said Cathy Lockhart, the division's former enforcement attorney. "I have on more than one occasion heard from general counsel [that] they wanted to withhold information from the court.”

In testimony Monday, Bordelon blamed his January order to halt the nine investigations on a broken internal process for selecting cases. In previous testimony and an interview with The Texas Tribune in May, Bordelon said he dropped the cases out of concern that division enforcement would trample on the doctors’ due process rights. On Monday, he offered this clarification: “I am not saying that we were legally unable to prosecute these cases."

Still, the staff had violated internal protocols, Bordelon reiterated: "I could not defend that we were following the process we put in place, specifically out of concern in the past that we were inappropriately targeting doctors. Because we had a process in place and didn’t follow it, I felt it appropriate to shut it down.”

Former employees who oversaw investigations say otherwise, insisting they followed procedures as they understood them — there’s no official division rule governing the selection process — and that the leadership seemed to bend over backwards to protect accused doctors. “Every step I took, there was a stumbling block put in front of me to get a case to [the State Office of Administrative Hearings],” Lockhart said. “It was obvious to me this administration and commissioner did not want to take these cases.”

A July state audit supports former employees’ claims of a massive backlog in the enforcement process at the division. Auditors found that over the past decade, 20 percent of cases were closed without documentation and that hundreds of cases in which medical quality reviewers recommended doctors for sanction or removal from the system have gone untouched or unsupervised or disappeared entirely. Bordelon conceded that the commission had failed to carry out its mission. “No question we have not been successful," he said. "We’ve only been recently trying to correct the problems that existed."

The second part of the state audit is expected later this year. “I think there are things that this committee and ultimately the public will benefit from as a result of that audit,” Texas Department of Insurance Commissioner Mike Geeslin, whose agency includes the workers' comp division, told lawmakers. “It’s not about the insurance carriers, and it is about the injured worker. And hopefully what we’ve presented to you … will demonstrate to you it is about making the system work for injured workers.”

As a result of division’s mid-year turmoil and subsequent shakeup, Bordelon said, new enforcement attorneys and a new medical advisor, Dr. Donald Patrick, have recently removed two unscrupulous doctors from the workers’ comp system — the division’s only removals since 2005. “So we’ve spent $2 million to $4 million to basically get rid of two doctors?” asked state Rep. Rob Orr, R-Burleson.

“The fix is in place now,” Bordelon replied. “We’re not going to be wasting these dollars going forward. In my view, making sure that we have a better process of reviewing complaints going forward has resulted in a better record of enforcement to date in 2010.”

Bordelon said some of the nine doctors whose cases were dropped in January may still wind up facing scrutiny. “Are those cases still alive? [The complaints] can still be investigated and may still be investigated,” he testified.

Lawmakers seemed puzzled by Bordelon's explanation of his concerns over internal investigative protocols and instead focused on his acknowledged lack of performance. “No one has really been reprimanded for bad care,” said state Rep. Joe Deshotel, D-Beaumont, the chair of the committee. “It’s just not happening and [has] not been happening."

Other lawmakers asked why division leadership hadn’t pushed for procedural fixes a lot earlier if they were so problematic. They also questioned the timing of Bordelon’s termination of the cases. Bordelon admitted he internally audited the process in January — and subsequently shut down enforcement — after getting a phone call from state Rep. Leo Berman, R-Tyler, who told the Tribune he intervened with the commissioner on behalf of a constituent and campaign donor who was targeted in an investigation. “The process worked,” Lockhart said. “What gets in the way is the political influence."

Lawmakers on the Sunset Advisory Commission, which performed a top-down review of the workers' comp division, voted this summer to allow the division to continue in its current role. Sunset recommendations will be drafted into an overhaul bill for lawmakers in the next session, and the panel that met Monday can opt to file parallel legislation if it decides further reforms are necessary.

But the ongoing conflict over whether stalled enforcements result from a broken system, or merely failures by individual leaders, has some questioning whether legislation is needed. “The system was good. You’re fixing something that is not broke,” said Dr. Marty Barrash, a Houston neurosurgeon and a member of the division’s Medical Quality Review Panel.

Whether or not changes in the law are necessary, Deshotel said, someone has to "tighten up” the entire process. “I question whether the agency can do it themselves.”

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