If PTs want to maximize reimbursements, they must know the ins and outs of changing legislative and agency rules.

Just about every PT has an aggravating story about unfair denial of reimbursement by an insurance company. Unfortunately, most clinicians have an abundance of these sad tales. Whether talking about run-of-the-mill commercial insurance, Medicare, or workers’ compensation, the bad experiences all sound the same after a while. But in the context of denials, perhaps no system has been lambasted more than workers’ compensation.

Regardless of the state you practice in, if you have ever relied heavily on workers’ compensation reimbursement to keep your practice afloat, then you probably have weathered your share of workers’ compensation storms. These storms brew up in a number of ways and often in various combinations. They are spun out of systems that cost employers too much in premiums, have poor return-to-work outcomes, fail to reimburse a reasonable amount, pay slowly when they pay at all, and drown participants in paperwork at every stage.

Although my experience has been with the Texas system, from what I have seen, the problems are not unique to one particular state. Likewise, the solutions are not solely owned by any particular jurisdiction. Whether your system is run by multiple commissioners, a single agency head, or a combination of legislators and state employees, methods for fixing the system are limited.

In the final analysis, there are really only two solutions or avenues for ultimately controlling and surviving workers’ compensation turbulence. Neither of these approaches is mutually exclusive, and, in fact, they are typically both ongoing battles. You can fight the madness before your state legislature in an effort to change the governing statutes that control the system, or you can fight on the rule-making battlefield before the state agency that regulates the system on a day-to-day basis.

The Legislative Lightning Rod
Arguably the most effective and most permanent fix to any problem with the law is to go through your state legislature. As the workers’ compensation system becomes more and more unstable, the legislature becomes a lawmaking lightning rod that brings the most volatile issues together—hopefully to be addressed before the whole system burns down. No matter what state you are in, every agency and every program has an enabling statute of some kind. The names may vary from one state to the next, but when you get right down to it, there is always one or two primary laws created by the legislature to authorize or enable an agency to carry out its regulatory duties. These laws frequently are the birthplace for related programs or projects. Adjusting or fixing these laws is the most direct way to stop workers’ compensation storms, or at least to control their severity.

There are a number of things to keep in mind and to plan for when taking the head-on approach. You have to lay preliminary groundwork before the legislative session starts. The window of opportunity for statutory change is limited. While some states meet once each year for a few months, others meet every other year. The length of regular legislative sessions also varies from state to state. For example, the Texas Legislature meets every odd-numbered year for no more than 140 days. As a practical matter, it uses all of its allotted time. Even so, with around 5,000 or more bills filed each session, 140 days is very little time to get changes through. In states that meet every year, the length of the session can vary, but it is not unusual for it to last only 90 days.

What this all means is that the process moves fast and amounts to short attention span theater. Other issues may be given priority, and time may be used up addressing subjects that have drawn more interest or more media coverage. Consequently, the groundwork has to start well in advance of the session. In states that meet every other year, it is not uncommon for interested parties to start working the politics throughout the off year so that when the legislators roll into the session, they are already educated on the issues and ready to act. Passage of statutory changes often takes years and multiple sessions.

 You need to first identify what laws need to be changed. In Texas, you look to the Labor Code and the Insurance Code. Once you have identified the laws, you are well advised to draft proposed amendments to existing statutes so that legislators aren’t slowed down by starting out with blank pieces of paper. You need to identify the areas that demand attention. Target areas typically include preauthorization, fee guidelines, prompt payment, the appeals process, reimbursement rates, electronic billing, and the establishment of a rock bottom that reimbursement rates cannot drop below. Remember that time is limited. The draft legislation should be in the form of a bill and formatted as required by legislative rules to reflect deletions and additions. A bill analysis explaining the changes and the basis for them is a good idea as well. Fiscal notes and supporting documentation round out the basic information that is needed. Simplified speaking points that are easily expressed in a bullet format are also essential. Data from your own practice, other physical therapy facilities, national research organizations, and other states can form the core of your supporting documentation.

You will need to find a senator or representative to sponsor the bill, and this documentation is vital in facilitating the sponsor-recruitment process. If you can obtain both a Senate and a House sponsor for identical companion bills, you are much more likely to get the legislation through since you will have created two vehicles for possibly passing the same law.

Start shopping for sponsors early. Six to 8 months before the session starts is reasonably enough in advance that you should be able to find at least one sponsor, if not cosponsors or companion-bill sponsors. The longer you wait to obtain a sponsor, the harder it will be to find one and the less likely the bill will be pushed hard enough to pass through the filter of the legislative-committee system. Finding a sponsor is a matter of using your network of PTs and PT assistants to approach legislators in their districts and to ask them to sponsor legislation well in advance of the session. Professional associations typically take the lead, but personal connections with legislators can be a big help. If they know you from church, the golf club, scouting, or from any number of social and community contexts, they are more likely to trust you and are more likely to be a sponsor.

Similarly, if you go to them early on and ask for nothing other than to help them with their initial campaign or their re-election effort, you will establish a relationship that can be parlayed into a willing bill sponsor. Contributing money to campaigns is a great way to get an “in” so that you can have the legislator’s ear later. Campaign contributions don’t necessarily buy votes—or at least they shouldn’t—but they do buy access and serve to get reasonable people into office.

If money is short, and even when it is not, working on a campaign is one of the best ways to establish the needed relationship. Participation in a campaign can be an effective relationship builder. It can take the form of walking the block for the candidate, helping to stuff envelopes for mail solicitations, putting signs together, putting signs up, and just about anything else you can think of from phone work to technical support. Fund-raising events will also get the right kind of attention. They can be as simple as hosting a coffee or dinner at your home, or as elaborate as holding a town-hall forum to give candidates access to their constituents to discuss issues of importance.

Whatever the approach, the dedication of time and energy can make more of an impact than money. Personal involvement is not likely to be overlooked. Legislators and their staffs will usually have a chance to get to know you from the campaign involvement or fund-raiser and can be indoctrinated slowly as you work together to have a successful election. Legislators are always being asked for something. I recommend stopping by to see them to just thank them and to offer to assist with information or by working the campaign. Legislators tend to like it when you are only asking to help instead of asking them to take on difficult projects. This type of loyalty is often reciprocated, so that when the difficult legislative initiatives need to be pursued, they are up for the task.

The Convincing Process
Once you have the pertinent law identified, the proposed legislation drafted with supporting documents, and one or more legislators to sponsor, you then have to keep up the momentum and convince other legislators to support the initiatives that you have in mind. You need them to vote your way at the committee levels, as well as on the floor of the House or Senate. Convincing legislators to vote your way can be accomplished through various methods. Professional lobbying, grassroots efforts, and alliances with others are what you need to make it happen.

Given the complexity of workers’ compensation legislation, Texas recently opted to use a very experienced lobbyist, who can best be described as a “generalist,” along with a PT well versed in workers’ compensation to function as a “specialist.” These two lobbyists then acted in conjunction with an analyst. The professional lobbyist in the generalist role knows the system, knows legislators and their staffs, and knows how to get an audience with them. They get the doors open and slow people down long enough for them to listen, understand, and adopt your view. Once the door is open and folks are willing to listen, the experienced and knowledgeable PT in the specialist role does the talking and educates the legislators and the staff members who report to the legislators.

Both of these individuals matter. In the time crunch of a legislative session, legislators don’t always have the chance to carefully read and fully understand complex materials and proposals. They often rely on the reputation of the bill sponsor and the information and opinions of their own staff. To help the generalist, the specialist, the legislators, and the staffers to understand the impact of the existing law and the proposed changes, an analyst can be used to break down the issues into speaking points with more detailed supporting information. It is essentially a team approach.

In addition to the lobbying team of the analyst, the generalist, and the specialist, an absolutely essential part of the effort is grassroots support of the changes. Using the speaking points and background information, members of the physical therapy community need to be educated and prompted to be vocally involved. This goal can be accomplished through association networking, Web sites, e-mail blasts, fax trees, and phone calls. Another effective means is to hold legislative days when members of the physical therapy community are invited to come to the Capitol for an orientation on the process, a briefing on the issues, and a push in the right direction for individual visits to legislative offices.

As part of this process, people and entities close to the physical therapy community need to be brought into the mix. Students of the profession, their parents, and perhaps even the bankers that hold the notes on their school loans can be of help. The students themselves are a great source of energy and enthusiasm. They often tend to have a keen interest in the process and some extra time to devote to the effort. Vendors and facilities have a stake in the success of the profession, and they are usually willing to speak out as well as help in a number of ways.  

While having your professional association speak for you is important, grassroots involvement is still necessary. Legislators expect to hear the same tired songs from association representatives, but they tend to sit up and take notice when they hear from dozens of “real people” in person or by e-mail, fax, or phone. Regular mail tends to be a little slow in the fast-paced legislative environment, so you may want to comment through electronic means. Also, form letters are nice as a guide, but they lose impact if they are not personalized by the writer. Provide speaking points and general guidance for corresponding, but avoid the wide-scale adoption of form letters, which tends to get discounted considerably. Strive for the personal touch and relating real-world experiences.

Along these same lines, it is useful to develop allies through consumer groups and associations that have common ground with your profession and the proposals you are supporting. In workers’ compensation, a natural alliance tends to exist between providers and patients. Hospitals and large corporate employers can also be convinced that the changes you are seeking have potential benefits for them. Court these organizations early on just as you are seeking sponsors. Not unexpectedly, potential sponsors will usually ask who else supports the proposed legislation and who is opposed. The answers can lead to the recruitment of powerful, veteran legislators as your sponsors or can get you shown the door out.

Among the grassroots of the profession and allied organizations, you will need to find witnesses to testify at legislative-committee hearings. These committee hearings are critical, because they serve to weed out bad legislation and to refine good bills for sending to the full House or Senate for adoption. Witnesses should include experts to deal with the academic aspects, the statistics side of things, and the compelling clinical concerns. Keep in mind that workers’ compensation is primarily about the injured workers, so lining them up is important. It should also be understood that with speaking time limits of 2 to 5 minutes per witness, you need to put together a series of witnesses with each focusing on a critical element of the legislation.

Recruiting constituents of key legislators as witnesses is an excellent approach. Having representatives speak on behalf of big associations or employers is a way to get the impact of large numbers through just one or two witnesses. Speaking points and short handouts are useful, but a big dog-and-pony show is not likely to impress and is often awkward in a crowded committee hearing. You should have already laid the groundwork through your lobbying efforts and grassroots campaign.

As a final piece of wisdom on the legislative approach, you are well advised to track the legislation to the bitter end. Last-minute amendments may need to be headed off or supported by your lobbying team or by inundating legislators with grassroots input. The best way to track the process is through one of any number of professional legislative-tracking services that give you computer access to live video feeds of hearings and copies of the most recent bills, amendments, and committee substitutes.

The Agency Mudslide
If the legislature is unable or unwilling to change the enabling statute or the pertinent provisions of the law (such as the Insurance Code, the Labor Code, etc), then you are faced with handling the matter through agency rule-making. What can happen is a deluge of proposed rules that flood the regulatory agency and have to be sorted out in a way similar to legislation. When a system is failing and the legislature steps back, proposed rules can become a mudslide of regulation.

While the legislature creates the statutory framework for agencies and programs like workers’ compensation, the agency that has the day-to-day job of regulating workers’ compensation has the responsibility of making rules to flesh out the statutory skeleton. Once a rule is passed by an agency, it has the force of statute. It can still be attacked in the courts if it goes beyond the statutory authority granted to the agency, if the agency fails to follow proper procedures for passing the rule, or if the rule is more restrictive or is in conflict with the statute. Even so, the litigation option is expensive and time consuming. Much like in the legislative context, the best approach is to get involved in the process early so rule drafters and agency personnel do not get tunnel vision or get fixated on particular language other than yours.

The most current governing rules are kept on file at the agency. As with legislation, rules can be tracked through the computer, as well as by hard-copy publications that you can subscribe to. There is usually a process for rule-making established by the enabling statutes or by a separate administrative procedure act. This process typically calls for the publication of proposed rules in advance of their adoption and the opportunity for public comment at a hearing or in writing.

Rules are often promulgated by statutory directive or on the agency’s own initiative to address problem areas. However, rules can also be proposed by members of the public. The process varies, but it can include a mechanism such as filing a petition, filing a particular form, or submitting a written request to trigger time lines and action requirements for the receiving agency. In some instances, administrative-procedure acts will mandate hearings if requested by certain-size groups or associations. There is clearly strength in numbers. It is also a common requirement that receiving agencies respond to each comment and explain why suggestions are adopted or rejected. Grassroots input can jam up bad rules and lend overwhelming support to good ones. The key, of course, is prompting grassroots involvement.

Making a change to the law through this option is a viable approach, and in many respects it can be somewhat easier than going through the legislature. Agencies regulating workers’ compensation usually meet several times per year rather than every other year or just once per year. They also focus on the specific subject matter rather than all of society’s problems. The forum itself is perhaps less intimidating to witnesses, with hearings in agency conference rooms rather than the awe-inspiring rooms of some capitols. Time constraints are not as stringent, and witnesses are often given more latitude. There are less people to convince, since you are dealing with a board, commission, or single agency head rather than the entire state legislature. Rules also have the flexibility of being changed more often than statutes, since agencies meet frequently and can move faster than the legislature.

Despite these favorable differences from the legislative process, keep in mind that the lobbying and grassroots efforts remain much the same. While a rule sponsor is not needed, most of everything else from the legislative arena tends to apply. Witnesses are important. Testimony is limited, even though perhaps not as much. Agency staff can make or break your effort. Associations and group efforts can make significant impact, but individuals can do even more if they are involved in large numbers. The earlier you start, the better. If agency staff can be cajoled into sending out preproposals before they get the drafts locked into their head, then the language can be better controlled. Stakeholder meetings for negotiated rule-making can also serve the same purpose as legislative work groups. Presenting drafts with sample language works better than just complaining or tossing out suggestions. Supporting documentation is necessary, but abbreviated bullet points are needed and are well received.

It Never Stops Raining
Even after massive overhauls and re-formation of a workers’ compensation system, ongoing involvement is still required. Rules are continually being amended, and big problems that are not susceptible to rule-making will get the legislature back into the equation. With employers, insurance companies, providers, and patients all harboring concerns based on their various perspectives, it is a virtual certainty that it will always be raining on someone. And as their needs are addressed by legislation or rules, another storm will appear on the opposite horizon for someone else. It never stops raining.

To survive the storms of workers’ compensation, you have to work the politics. There is truth to the old saying, “There is no such thing as bad weather, only inferior gear.” In other words, the nature of workers’ compensation is that existing systems will remain fluid and will be constantly changing with competing interests and concerns. Storms come with the territory and should be expected. Being ready and having good gear means putting a lobbying team together, establishing a grassroots system, and tracking the storms as they blow in and out. You have to do so if you want to survive, since in the context of workers’ compensation, the storms only subside and it never really stops raining.

Tim Weitz, JD, is a practicing attorney licensed in Texas for more than 20 years. He is a founding partner of the Austin law firm of McDonald, Mackay & Weitz, LLP. Weitz is Board certified in Administrative Law by the Texas Board of Legal Specialization, and his practice focuses primarily on licensure defense for health care providers. His experience includes trial work as a prosecutor and as criminal defense attorney in the US Marine Corps. He also has extensive experience in physician regulation having previously been the General Counsel for the Texas Medical Board. He has been employed as a lobbyist on health care legislation and is a frequent speaker on health law matters. He is currently involved in association management and is in his 8th year as the executive director of the Texas Physical Therapy Association. For additional information and an attorney profile, go to www.healthlicensedefense.com.