DWC Not Prepared to Honor the current QME Fee Schedule Stakeholder Agreement

In general it appears that after three months of negotiations DWC has decided to go its own way and ignore whichever parts of the Stakeholder Agreement it chooses.

-- Medical Records received by the QME are supposed to be studied in time to include mention of them in the QME report. That is hard to do when the records arrive after the patient has been seen.That is why CSIMS argued during the Stakeholders Meetings that medical records should be sent to the QMEs 15 days prior to the evaluation. It should be understood that we're not talking about a few pages -- in one case our office received 51 pounds of medical reports. It is almost incomprehensible that DWC rejected the  recommendation that reports get submitted 15 days before the patient is seen by the QME.

-- DWC supports  the use of the ML 206 reports which are defined as "remedial." That means that the original report submitted by the QME was declared insufficient or not responsive to the medical legal issues raised. Under this circumstance a "remedial" report can be requested. No reimbursement is required for "remedial" reports which, in fact, are actually traditional "supplementals" (ML 106 under the present system).  

-- ML 206 reports are simply unpaid supplementals and can be requested by the carrier without concern for wrongful use of this mechanism. In short, the current DWC does  not propose a method to decide if a request for a "remedial" report is spiteful or just flat out wrong. DWC needs to establish independent "dispute panels" for instances where the QME disputes the indications for a "remedial" report. At the present time, if ML 206 were adopted as is, the requests for "remedials" would be unilateral and arbitrary. 

-- When Gabor Vari, MD, CEO of California Medical Evaluators, was asked about ML 206 reports he stated that the above review of the issues was correct and that the provision for ML 206 reports was "too broad and open to abuse by carriers."

-- Indeed, Dr. Vari's assessment was that the ML 206 provisions as currently envisioned by DWC "will increase friction and decrease engagement by QMEs."

-- Should the number of pages sent to the QME be
specified in a cover letter from the sender? CSIMS said yes, DWC said no. This decision leaves it up to the QME to count the pages and state the count under penalty of perjury (a QME office miscount of one page with a 51 pound crate of medicals could lead to an accusation that the QME was guilty of perjury).

Conclusions

DWC does not appear willing to honor the Stakeholder Agreement to which the QME contingent via CSIMS and DWC appeared to have agreed. Our opinion is that ML 206 and other provisions by the DWC violate the proposed QME Fee Schedule Stakeholder Agreement and that the current proposal should be designated as "Stat DOA" (dead on arrival like right now!). 




  

Tid-bits of Hypocrisy (the first in a series about proposed reform in workers comp)

The first tid-bit of hypocrisy we'll discuss is paper size. Financial negotiations between Workers Compensation physicians represented by the California Society of Industrial Medicine and Surgery (CSIMS) and the California Division of Workers Compensation (DWC) focused on this issue.


The reason is that the doctors wanted a certain level of minimum reimbursement circa $3.00 per page whereas the insurance industry, in this case spoken for by DWC, wanted to pay less, in short, while their alleged aim was supposedly to update the fee schedule to enable enhanced recruiting of physicians, the insurance companies were not wild with joy about this avowed objective. Nonetheless, it was the physicians' understanding after stakeholder negotiations between CSIMS and DWC that a joint stakeholder agreement had been reached on a pay-for-page basis.

Not quite. During the negotiations CSIMS envisioned standard size pages measuring 8.5 x 11  inches. The doctors for whom CSIMS was negotiating were consequently bowled over when DWC let it be known that the DWC version of a page would measure 8.5 x 14 inches.

In essence the DWC recommendation amounts to an increase in insurance company income, denial of a modest raise for physicians, and a reduction in services for injured workers.

We understand that DWC wants to hear what the parties and the public think about this proposal and others (see newsletters to follow) --  if you have an opinion make it known to DWCForums@dir.ca.gov (10 July 2020 is the cutoff date). You should also copy gparisotto@dir.ca.gov, khagen@dir.ca.gov,  membership@csims.org, your assembly representatives and state senators. 

Covid 19: Is Marketing in Health Care taking Precedence over Safety? Are some institutions designated as "health-care" suppressing internal information about Covid-19?

This story concerns an elderly physician we'll just call "Dad. " This saga was submitted by his son whose name is being protected by this newsletter since we've not yet called him for further follow up. We're also not yet disclosing the name of the hospital since the hospital itself has so far not had opportunity to respond to this story. Here is what we have learned so far. 

Dad is a private practice internist whose patients include geriatric patients in a rehabilitation hospital. Out of an abundance of caution to protect these patients Dad has been wearing a PPE mask while attending these patients. He felt he was doing the right thing. We are told that the hospital administration did not agree. We are told that the hospital administration was afraid that their patients would worry if they even thought that their doctors were worried about Covid-19. In economic terms the administration worried that families would pull relatives from the hospital, in short, would facilitate early discharge. For the hospital we were told that the concern for a possible medical problem for the patients was being supplanted by an anticipated economic problem for the hospital. 

We are also told that some hospital staff and patients tested positive for Covid and that since then the hospital administration has endeavored to enforce measures to block disclosure of this information. Disclosure is seen as a marketing risk. 

The person who submitted this story to us wrote that "there needs to be recourse for hospitals and administrators that are behaving this way. Making money is not more important than protecting our patients." 

Further follow-up is indicated, not just with reference to the unnamed hospital in this story, but to determine to what extent this narrative pertains to other hospitals and institutions designated as "health-care." We need to ask if the politics of health-care -- what this newsletter is all about -- has taken an ugly turn or not. 

Updated comment, 04/22/20: we've received comments of interest, e.g., some would like the AMA to take up this story whereas others think we should inform Pro Publica. In general, everybody is uncomfortable with the prospect of  physicians being intimidated and silenced by business or political interests. 

Corona Virus versus QMEs

Our office, designated to do a Panel QME, ran into a plethora of unexpected complications on a recent case. Various involved parties were worried, for example, about the assigned date -- they were fearful of travel, time spent in any doctor's office where a previous Corona patient might have been, and the unpredictability of the virus itself. Parties expressing trepidation included medical office staff, persons that might be asked to do diagnostic testing such as imaging studies or legal staff that might have to deal with a client who had just been to a medical office where somebody else might have left a viral particle. Lawyers' offices, saddled with their clients' medical legal problems, now also worried about exposure of their clients and their own legal staff to a novel virus known to have the ability to cause death. In all cases, front office persons were worried about their own exposure. What to do?

Here's what we did. All the parties were called. It turned out that the patient was willing to reschedule to a date that  might be safer, his attorney was agreeable and so was defense. The adjuster was compliant. The exam was rescheduled to a later date by which it was hoped the virus problem would be resolved. If not the above process could be repeated, i.e., postponed again. 

There has been considerable discussion of use of telemedicine but no overall agreement to date how it would be fair to all parties. In the meantime, it appears as though we'll need to rely on good faith negotiations. That task is likely to be as challenging as the Corona Virus already is. We should try anyway. 

Re AB 890 (Wood): Full Practice Authority for Nurse Practitioners 

AB 890, authored by Assemblyman Wood, DDS, is reportedly designed to fill a gap in access to healthcare. The underlying problem is that there are not enough physicians especially for injured workers (these patients are seen via workers comp). While attempts are made to train more physicians, this effort is not seen as adequate. Wood's solution is to allow Nurse Practitioners (NP) to fill the gap.The claim is made that NPs will gravitate to underserved areas and work for less remuneration than their physician colleagues. 

Nothing, however, in the current written legislation guarantees that NPs will gravitate to underserved areas or stay there if they do -- the NPs will not be obliged to give up chances for employment in better served areas or to charge less for services that the legislatue has deemed equivalent. Pay parity for the same job or equivalent services is to be expected especially by NPs who are properly organized. 

Unfortunately, The bill has verbiage harmful to physicians, patients, and hospital medical staffs. 

Item # 1: The bill says that "a nurse practitioner shall be eligible to serve on medical staff and hopital committees." So much for the exquisite education, training, and preparation that have to date been required of physicians. 

Item # 2: under Section 2637.101 it is stated that "there is in the Department of Consumer Affairs the Advanced Practice Registered Nursing Board consisting of nine (underlining added) members."

Item # 3: this item is under Section 2637, 103. It states that "commencing January 1, 2026, four (underlining added) members of the board shall be nurse practioners licensed under this chapter. 

Item # 4: Three members of the board shall be physicians and surgeons licensed by the Medical Board of California or by the Osteopathic Board of California and that "at least one of the physician and surgeon members shall (underlining added) work closely with a nurse practitioner" and that "the remaining physician and surgeon members shall focus on primary care in their practice." 

Item # 5: Two members of the board shall represent the public at large and shall not be licensed under any board under this division or any board referred to in Section 1000 3600."

Conclusion can be drawn with reasonable accuracy that the chief purpose of this bill is to change practice standards such that medical and/or osteopathic professional standards are no longer required for medical practice. 

Further conclusion is that AB 890 shows how a bill ostensibly designed to increase access to care evolved into legislation pitting one group's fiscal and professional prerogatives against another group's fiscal and professional percs. 

Bad Faith Changes for Regulation 10451.1 have a good chance of passage

When a defendant objects to a bill for a Medical-Legal expense it must do so in compliance with LC 4622. Regulation 10451.1 is operative. Some defendants find the rules particularly onerous and want to tilt the process so that it will be more advantageous to insurers and defense interests. In recent months reports have surfaced that the number of petitions for non-IBR disputes has increased. These petitions have been filed by providers of medical services, e.g., QMEs, treating physicians, and diagnostic testing facilities. 

The key to this harmful and biased proposed regulatory change is that it will obliterate the right to be heard on a non-IBR petition if the Defense simply does not file a Declaration of Readiness. This proposed change is harmful to treating physicians, to the providers of diagnostic services, neither of whom will be able to go ahead with planned diagnostic or treatment protocols because of  wrongfuly denied QMEs, and to QMEs whose reports will be simply ignored. It will reduce access of injured workers to all of these services -- diagnostic studies and treatment not done or postponed and QME analyses of opposing claims. The method will be short, simple, and not sweet  -- arbitrary denials of bills, fake arguments proposing why approved bills should be paid at lesser amounts, and flat-out bill rejections. The inevitable result will be decreased access to diagnostic services, further reduction of doctors willing to treat injured workers, and fewer doctors willing to stand up as QMEs to the slings and arrows of outrageous fortune, ie, the clout of insurance companies. 

Ample examples of what the proposed changes in 10451.1 can get away with already exist, e.g., denying properly scheduled QME or AME reports based on spurious claims of which a favorite is that the QME or AME provider is "not in the MPN."

The proposed regulatory changes herein described are in bad faith and should be rejected. 

Reneging on AB 1107 (Chu)

In its original form AB 1107 was supposed to give relief to injured workers who were being wrongly denied access to treatment. It was supposed to ease the administrative burden on treating physicians whose time for patient care was being diluted by unreasonable requests for documentation to entertain Utilization Review (UR). The main thrust of AB 1107 was to facilitate treatment by primary treating physicians by exempting them from UR under specific circumstances. This plank has now been removed and replaced by language that may actually increase legal costs. 

As a result of the fear that access to treatment might become too easy for injured workers the bill got amended in committee with the acquiescence of the author to narrow the proposal but to allow stakeholders to challenge UR conclusions, said challenges to include more legal wrangling with even less access to care since treatment will inevitably be delayed, postponed, or just not done while the wrangling process is in play. 

It is true that this proposal gives the applicant or patient an opportunity that wasn't previously available but it does not facilitate prescribed treatment by treating doctors -- and that, my friend, was supposed to have been the raison d'etre of AB 1107 in the first place. 

In the recent King v. CompPartners Inc case, August of 2018, a deserving patient was harmed by wrongful utilization review when authorization for his medication was  withdrawn. The injured worker tried to use "tort" law to sue the Utilization Review Provider but lost that battle when the California Supreme Court decided that work comp law provides  exclusive remedy for employees who allege injury because of treatment denial by UR. This decision in turn caused one of the Justices to say that the law for injured workers should be revisited.

THAT was what AB 1107 initially sought to do. Instead, we have a compromise which does not help injured workers when they need treatment but which provides them and their lawyers a way to challenge UR decisions later. This solution is another in the sordid list ot "too little, too late." This writer recommends revisiting the bill again to review the circumstances under which Utilization Review can be set aside so that injured workers get needed care in timely fashion. There is still time to amend the recent amendment. 

Reports reviewed for this editorial include

"Will AB 1107 Trim the Claws of UR," workcompcentral column, 2019-04-18 by Robert Weinmann;

"Turning the Clock Back on State's Workers' Compensation System, workcompcentral column, 2019-04-24 by Carlos Luna; 

"Utilization Review Physicians May Owe Duty of Care to Applicants, King v. Comp Partners, 2016, 243 Cal. App. 4th 685, Mullen and Filippi.