CA Division of Industrial Relations
Department of Workers' Compensation
COMMENTS ON PROPOSED CHANGES TO THE MEDICAL LEGAL FEE SCHEDULE
We appreciate the opportunity to comment on the recently proposed regulations regarding the Medical Legal Fee Schedule (MLFS). We represent the California Chiropractic Association, and have more than 30 years of experience each in treating injured workers. We have served as AMEs or QME’s since the inception of the program, and are certified by the DWC as continuing education providers for QME re-certification. One of us also served as an expert in the Howard v. DWC matter.
As Doctors of Chiropractic, we have some experience with statutes used as a bludgeon to address a small number of rogue providers which instead punish an entire profession. Fourteen years later, when nearly all stakeholders agree that arbitrary caps on chiropractic treatment are no longer warranted as a consequence of universal utilization review, the chiropractic community still labors under them. We do not wish to see a similar fate befall the QME community.
We strongly recommend a more nuanced and measured approach than is evident in these proposed regulations; one in which the stakeholders have a say in crafting the regulations that affect the whole community, not one delivered by fiat which the comments to this forum have clearly denounced for numerous reasons.
We appreciate the opportunity to comment. Proposed changes are bolded, our comments in italics and existing language in regular font. Thank you for the opportunity to comment. We welcome a chance to work with the Division to refine and improve the MLFS regulations.
(3) No other charges shall be billed under the Official Medical Fee Schedule in connection with a medical-legal evaluation or report.
COMMENT: If there are specific items under the OMFS that are being overused or abused as part of a QME or AME evaluation, the providers involved should be educated and/or disciplined. The past two years have clearly demonstrated that the division has the means and will to go after outliers. There remains significant ambiguity in the existing language regarding consultations obtained in the course of a medical-legal evaluation, and the proposed language will lead to additional confusion and friction regarding appropriate billing for required services.
§ 9794. Reimbursement of Medical-Legal Expenses.
(b) The fee for each evaluation is calculated by multiplying the relative value by $12.50, and adding any amount applicable because of the modifiers permitted under subdivision (d). The fee for each medical-legal evaluation procedure includes reimbursement for the history and physical examination, review of records, preparation of a medical-legal report, including typing and transcription services, and overhead expenses. The complexity of the evaluation is the dominant factor determining the appropriate level of service under this section; the times to perform procedures is expected to vary due to clinical circumstances, and is therefore not the controlling factor in determining the appropriate level of service. If prior agreement of the parties is required under any provision of this regulation, the physician may not condition performance of the evaluation on receipt of prior agreement of the parties.
COMMENT: The proposed regulations place evaluators in an untenable position, as many commenters have noted, by requiring physicians to obtain prior agreement which is unlikely if not impossible, and simultaneously require they provide hours of service for which they will likely never be compensated. There are simply too many such occurrences now, even without these regulation changes, and it is not equitable or reasonable to ask experts to accede to these unreimbursed demands on their time.
To that end, we agree with other commenters:
The language regarding ML100 (Missed or late cancelled appointments) needs to be changed to require carriers to reimburse evaluators for their time. We schedule one, two or many more hours for these evaluations and when the patient or an interpreter no-shows, or an evaluation is cancelled with short notice, that time is lost revenue. Good evaluators summarize, organize and review medical records (assuming they are sent timely) in advance of the anticipated evaluation, and is it neither equitable, fair or reasonable to expect the evaluator to absorb costs associated with that activity through no fault of their own when the evaluation cannot go forward.
The Relative Value (RV) rates for medical legal evaluations must be brought up to date. There has not been an increase in 12 years. Simple inflation would suggest an increase of at least 26%. No other stakeholder in the workers compensation system has been required to absorb 12 years of stagnant reimbursement for the services they provide.
Labor Code §5307.6 requires the Administrative Director to adopt and revise (emphasis added) a fee schedule for medical-legal expenses …”which provide remuneration to physicians performing medical-legal evaluations at a level equivalent to that provided to physicians for reasonably comparable work, and which additionally recognizes the complexity of various types of evaluations, the amount of time spent by the physician in direct contact with the patient, and the need to prepare a written report.”
We can confidently assure the Division that experts providing “reasonably comparable work” in other medical-legal markets are paid more than the current MLFS. Given the rises in rent and salaries alone, it is difficult to see how the Division is in compliance with Labor Code §5307.6.
Labor Code § 9793 (b)
Current law requires employers to pay for all medical-legal expenses within 60 days. However, QME’s and AME’s must evaluate the patient, review all records, address all issues required under 8CCR 10606, and serve their report, with proof of service on the parties within 30 days. Carriers however routinely fail to comply, and despite the requirement that they pay penalties and interest, virtually never do, since the Division rarely if ever sanctions them. Some providers make the expensive and time-consuming trip to the WCAB to enforce this, but most don’t as the cost rarely justifies the expense. If the evaluator is late or fails to comply in any way, they risk not being paid for their work, or even the loss of their QME status. The Division acts quickly when it comes to auditing and disciplining QMEs for one-off late reports but has turned a blind-eye to carriers systematically employing late payments as a business practice. Many QMEs report receiving admonishments from the DWC for “late reports” when in fact the reports are not late. This occurs because a party who is displeased with the report will incorrectly report it as late to the DWC. In turn, the DWC, without investigating the allegation that the report is late will presume that the lateness is true and send a threatening letter to the QME. In contrast, complaints by QMEs that carriers are not paying penalties and interest on late payments, complete with full documentation of such repeated offenses, are ignored by the DWC. The inequity is staggering.
We suggest Labor Code § 9793 (b) be amended to require carriers to pay within 15 days, which they are currently required to do for more complex treatment bills. It is unclear why the carriers have four times as long to pay medical-legal bills which are ten times simpler.
LIMITING REPORT PREPARATION TO 3 HOURS:
The Division provides no rationale for why this drastic restriction is proposed, and provides no evidence to support a contention that most if not all evaluation reports take less than three hours to complete. While some evaluations might be relatively brief, many reports exceed twenty, fifty or more pages to properly address all the relevant issues. It is simply unreasonable and unrealistic to assume that providers can typically compile, compose, dictate (or type), edit, finalize and serve reports which constitute “substantial medical evidence” in under 3 hours, and then sign, under penalty of perjury, an attestation that they did indeed spend the time they listed in preparing the report. This is particularly true, as noted by other commenters, for physicians new to this system. We too have talked to new doctors who are embarrassed to list the actual time it took them to write their reports, and we have seen several relinquish their QME’s because of it.
This revision seems to imply that the doctors in this system are untruthful, or cannot be trusted to honor their signed attestation that they performed the work they claimed. If the ultimate intent is to dismantle the QME system, or compel ethical and caring physicians to renounce their QME status, this will be the final nail in the coffin.
Frequently there are circumstances which might warrant more than 3 hours of report preparation time for follow up, supplemental and complex evaluation reports, such as when large boxes of records arrive with or without cover letters. Sometimes the issues are numerous and complicated and often the extra time required to produce a report which constitutes substantial medical evidence is not compensated under any of the other complexity factors.
Report preparation time is and should be separately reimbursable from record review, but this proposed regulation demonstrates a complete lack of understanding of the process involved in producing a medical-legal report which will meet the standard of “substantial medical evidence.” Once the records have been organized, reviewed and summarized, the physician needs to organize a cogent summary of the physical examination, review tests, articulate a comprehensive diagnosis, address causation, apportionment, an AMA impairment rating, work restrictions, the need for and description of future care consistent with the MTUS, and eligibility for job displacement benefits. And serve the report on all parties. The evaluator needs to ensure their opinions are consistent with all the evidence. These issues require careful consideration of all the evidence available, and setting an arbitrary cap is simply unreasonable and untenable, and as others have noted, will result in substandard reports, or require physicians to provide uncompensated services. Injured workers deserve the best efforts of their evaluators. This regulation will prevent that.
ML103 75 Complex Comprehensive Medical-Legal Evaluation.
Includes evaluations which require three of the complexity factors set forth below. In a separate section at the beginning of the report, the physician shall clearly and concisely specify which of the following complexity factors were actually and necessarily incurred for the production of the medical-legal report and were required for the evaluation, and the circumstances uniquely specific to the actual evaluation being performed which made these complexity factors applicable to the evaluation. Strike: An evaluator who specifies complexity factor (3) must also provide a list of citations to the sources reviewed, and excerpt or include copies of medical evidence relied upon:
(1) Two or more hours of face-to-face time by the physician with the injured worker;
(2) Two or more hours of record review by the physician. An evaluator who specifies this complexity factor must provide in the body of the report a list and a summary of the medical records reviewed pursuant to Labor Code § 4628(a)(2). All criteria except the amount of hours must also be satisfied to use record review in combination under subdivision (4) and (5) of this code;
COMMENT: We have no issue with requiring a listing of records reviewed and a brief summary. Most high quality evaluators already do that, assuming they are reasonably compensated for their time. However the last line: (All criteria except the amount of hours must also be satisfied to use record review in combination under subdivision (4) and (5) of this code; ) of this proposal is confusing, poorly worded and unclear. In addition, absent a definition of what is meant by “actually and necessarily incurred” and “uniquely specific to the actual evaluation being performed” it is not possible to provide meaningful comment on these proposed changes. . We recommend removing these unnecessarily vague and ambiguous terms as they do not add to the regulation and will only cause further disputes and litigation when carriers refuse to pay for, or downcode, bills alleging that they do not conform to these vague terms.
(3) Two or more hours of medical research by the physician, using sources that have not been cited in any prior medical report authored by the physician in the preceding 12 months in support of a claim citing or relying upon this complexity factor. An evaluator who specifies this complexity factor must also (A) explain in the body of the report why the research was reasonably necessary to reach a conclusion about a disputed medical issue, (B) provide a list of citations to the sources reviewed, and © excerpt or include copies of medical evidence relied upon. All criteria except the amount of hours must also be satisfied to use medical research in combination under subdivision (4) and (5) of this code;
COMMENT: As worded, this would preclude physicians from using the same or similar research documents in supporting their opinions and conclusions, even though the arguments and fact sets might be very different and almost certainly would be prepared for different WCAB cases. We believe injured workers deserve the best efforts of physicians in every case, and if revisiting a specific set of research documents applies in different cases, the physician should be compensated for reviewing them, though presumably it would take significantly less time on subsequent go-rounds. To arbitrarily preclude any compensation for doing and citing relevant research is simply unreasonable. One can foresee a scenario whether the AME/QME addressed an issue which relies on scientific evidence in case A, having the same or similar diagnostic issues in case B, stating on record to the parties, “I cannot provide the science based criteria in the case at hand because the DWC does NOT ALLOW IT.”
This regulation also suggests a lack of understanding regarding the process of obtaining relevant research. Relevant research does not fall like manna from heaven. Just as attorneys do, evaluators frequently must do a lengthy keyword search , bring up a host of articles, and then sort through them to find relevant citations. The doctor must then typically review the abstracts of those papers, and cull the list to those most relevant. She then has to obtain the full paper (often requiring a fee). Simply reading the research is time consuming.
(4) Four or more hours spent on any combination of two of the complexity factors (1)-(3), which shall count as two complexity factors. Any complexity factor in (1), (2), or (3) used to make this combination shall not also be used as the third required complexity factor. Any complexity factor used as a stand-alone may not be used in combination under this subdivision;
COMMENT: SEE BELOW
(5) Six or more hours spent on any combination of three complexity factors (1)-(3), which shall count as three complexity factors, provided that some portion of time has been devoted to each of the three factors. Any complexity factor used as a stand-alone may not be used in combination under this subdivision;
COMMENT: Under this revision, in the case where a physician spent, say, 2 hours in face to face time with a patient, and there were no issues of medical causation and no need for research, but the carrier delivers a bankers box full of medical records requiring 10 hours of records review, the QME should be satisfied with reimbursement for an ML 102 at $625, or $52.08 per hour? This is simply unreasonable. The result will be that the work will not be completed, causing further delays.
We suspect that when physicians realize they are being asked to provide high-quality expert medical-legal evaluations which meet the standards of substantial medical evidence, for less than $70 per hour, the era of QME’s and AME’s in the California workers compensation system will be over very quickly.
Recall that the Division is required to set fees consistent with comparable work. Outside the workers compensation system, experts are compensated typically on an hourly rate, typically in excess of $350 or more per hour. QME’s and AME’s deserve no less, and already attest to the time actually spent under penalty of perjury. If the Division’s intent is to remove doctors who are gaming the system, do that. Don’t punish the rest of us who are trying to do our job. If a doctor spends four hours or six hours performing the work necessary to produce a ratable report, the doctor should be paid for it. Having doctors jump through all these unnecessary hoops adds nothing but friction to the system.
(6) Addressing and providing an analysis of the issue of medical causation, upon written request of the party or parties requesting the report provided that the physician and the parties agree prior to the start of the evaluation that the issue of medical causation is a disputed medical fact the determination of which is essential to the adjudication of the claim for benefits and the parties agree that the physician may use causation as a complexity factor in billing the evaluation;
COMMENT: As a number of others have already pointed out, this requirement is unreasonable, unworkable and unnecessary. We frequently have difficulty in getting even one party to provide a cover letter outlining the issues in dispute prior to the evaluation, and there are no legal requirements for them to do so in any event. This change will simply ensure that the issue of medical causation Is not used as a complexity factor, because the carriers have no incentive to do so, and there are no consequences for either or both parties failing to respond to the evaluator’s request. Since causation is frequently a threshold issue, this regulation change further punishes injured workers in the system. In addition, it simply adds another uncompensated burden on the evaluator and his staff to try to get a carrier or attorney to return a call or answer a fax. It doesn’t happen now, and this requirement will do nothing to address that reality as it will impact the injured worker’s entitlement to benefits.
Another issue is that not infrequently a bona fide issue of causation arises during the course of an evaluation which the examiner might need to address. Commonly, there is no way to discover this prior to the evaluation. Are we to simply ignore it if we have no prior authorization by both parties?
Alternatively, the burden should be placed on the parties: absent a specific directive that causation is not to be addressed, the evaluator must assume it should be.
(7) Addressing the issue of apportionment, when items (A) and (B) below both apply:
(A) The determination of this issue requires the physician to evaluate and provide an apportionment analysis of (i) the claimant’s employment by three or more employers, (ii) three or more dates of injuries to the same body system or body region as delineated in the chapter headings of the Table of Contents of Guides to the Evaluation of Permanent Impairment (Fifth Edition), published by the American Medical Association, 2000 [incorporated herein by this reference], or (iii) two or more or more dates of injuries involving two or more body systems or body regions as delineated in that Table of Contents. Strike: The Table of Contents of Guides to the Evaluation of Permanent Impairment (Fifth Edition), published by the American Medical Association, 2000, is incorporated by reference.
(B) The evaluator finds the injured worker to be medically Permanent and Stationary or to have reached Maximum Medical Improvement.
COMMENT: This regulation should be completely gutted and reworded. Physicians in other venues (IME work for example) rarely have to address apportionment, and when they do, they are compensated for their time in doing so. If there is more than one injury to a body part, or multiple body parts, apportionment should be a complexity factor. As worded, this portion of the fee schedule is so complex and convoluted, it all but guarantees disputes every time it is invoked.
There is presently no regulatory or labor code mandate that the patient needs to be MMI/P&S to be paid to address apportionment when it is required. There are times when an evaluator must provide an impairment rating and provide apportionment to that impairment when a patient is not MMI/P&S, and there is no valid reason to not pay the doctor for the extra complexity related to these services because of patient status.
A common example of this is when one or both attorneys request that the evaluator provide an impairment rating and apportionment, prior to the patient becoming MMI or P&S, such as when a patient wants to settle the case by C&R for a number of reasons, such as illness in the family or a desire to return to their home country. Clearly, paying the evaluator for these services in such circumstances is reasonable, proper and equitable.
The fee schedule should be clarified to address that expert deponents are entitled to reimbursement for the time it takes them to review and sign their depositions.
ML 106 …
No more than three hours may be billed for report preparation under this code. No more than two hours may be billed for medical research under this code. In order to bill for medical research under this code, the physician must use sources that have not been cited in any prior medical report authored by the physician in the preceding 12 months in support of a claim citing or relying upon medical research in billing. An evaluator who bills for medical research under this code must also (A) explain in the body of the report why the research was reasonably necessary to reach a conclusion about a disputed medical issue, (B) provide a list of citations to the sources reviewed, and © excerpt or include copies of medical evidence relied upon.
COMMENT: We have previously addressed our issues with the limitations regarding report preparation time. The limitation of billing a maximum of two hours of medical research is arbitrary, capricious and not based on any sound evidence, as discussed above. Precluding a physician from billing for medical research previously used in a report on another patient a year ago does not mean the physician doesn’t need to spend the required time to again find the research, ensure the facts of the current case are relevant and related to the research, and that the research is germane and necessary to support an opinion as substantial medical evidence. This regulatory proposal appears intended simply to reduce costs to the carriers at the expense of providing comprehensive reports that will be considered substantial medical evidence.
A more reasoned and reasonable approach would be to simply require that the physician articulate why the research was necessary to address a specific disputed issue. Carriers would be free to challenge that assertion based on bill review, and the burden would be on the physician to support his or her entitlement to that billing.