NOW COMES SB 1160 (Mendoza): Unreasonable Denials

SB 1160 (Mendoza) would require that lien claimants in workers comp file declarations with all liens as of 1 January 2017. Failure to follow through on this step would enable WCAB to dismiss the lien. As part of the signed declaration physicians would be obliged to say that the dispute in question is not subject to independent bill review. As we know from previous posts utilization review (UR) appointees  and independent medical reviewers (IMR) in California do not have to be licensed to practice in California, do not have to disclose their names, and are enabled by law to reject the most indicated and necessary treatment protocols . The situation is so dire that many treating physicians simply don't trust the utilization review or IMR process. In one recent post we disclosed how one UR doctor notified the injured worker's doctor about a denial of care at 10 PM while another notified the treating doctor's physician at 4:00 AM (nobody was home either time).

Carl Brakensiek, MBA, JD, Physician Advocate representing the California Neurology Society and the California Society of Industrial Medicine and Surgery, and others, has expressed concern "that some of the recently announced proposed amendments to SB 1160 will severely restrict access to care for many injured workers in California" and that certain "amendments being advanced by the Department of Industrial Relations will have a substantial adverse impact on many bona fide injured workers."

It was then pointed out that, fortunately, under the present system, because liens can be filed, there are physicians able and willing to provide medical care even though liability is being disputed. We call that a "Safety Net." It works because once proper liens are filed the providers of service get paid .

SB 1160 (Mendoza) throws all this past medical history out with the baby and the bathwater. It will require that liens for medical treatment be filed alongside declarations signed under penalty of perjury saying that the dispute isn't subject to independent medical review. Denial letters from adjusters or claims managers would no longer be automatically assumed to mean that "medical treatment has been neglected or unreasonably refused" and would allow employers to refuse coverage for injuries simply by asserting that the injury wasn't industrial. Brakensiek argues that this language should be revised "to specify clearly that if the employer has explicitly or constructively denied liability for the injury, then the claimant may file a lien."

Another likely blow to injured workers has to do with the assignment of liens. This technique is a financing modality useful when a number of liens have piled up over time because insurance companies, buttressed by Utilization Review, in turn buttressed by Independent Medical Review, have wrongly denied claims. The Lien Report from the Commission on Health and Safety Workers Compensation has already weighed in on this issue. Here is what was said: "we find no evidence that the practice of assigning lien rights is a problem in and of itself." By abolishing this mechanism, the Department of Industrial Relations now intends to make it a problem "in and of itself."

In a nutshell, prohibiting the assignment of liens would then become one more nail in the coffin of injured workers since many physicians now accepting liens would no longer be able to continue in practice. All in all we do not find that SB 1160 is helpful legislation in its current form. We find that amendments are needed. Therefore, at the present time, we urge an OUA (oppose unless amended) approach. 

UTILIZATION REVIEW IN CALIFORNIA WORKERS COMP (PART 2) : more on Jose Dubon vs World Restoration & SCIF

Our posts on workers compensation in California have often stirred up hornets' nests, sometimes only to disclose honey-bees. Here's the latest ruckus:


1)  In our previous post we referred to WCAB's "en banc" decision re Jose Dubon v World Restoration and SCIF as a landmark event and even as a triumph for injured workers.


2) We said WCAB stated that "a UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision."


3) We also pointed out that the WCAB decision said that the UR decision would be invalid only if the defect or defects in its processing of a claim were "material" and that just "technical or immaterial" defects would not cut the mustard.


4) So here's one of the major objections we got from a knowledgeable doctor who does workers comp: "I fail to see what's so great for the injured worker ... nothing has changed ,,, the 'burden of proof' is still on the patient to challenge the UR, which is presumed correct, by  going though IMR/Maximus UR. This just says you're only allowed to challenge ... if they don't file their report (no matter how bogus it is) on  time. Big effin' deal."


5) Maybe  so, but here's the riposte: it has always been the case that the injured worker or his representative had to carry the burden of proof. Since the provider is getting the money and the injured worker is getting access to treatment, who else would be expected to carry the burden of proof? Following the money trail has never been a bad idea. What WCAB has now done undercuts wrongful UR especially by companies known to specialize in wrongful UR by getting UR doctors who aren't licensed in the states in which they provide review or whose specialties are so far removed from the clinical challenge at hand as to make them, or that ought to  make them, irrelevant and disqualifiable on that basis alone.
Here's how UR decisions can be successfully challenged:
(a) you object because you have reason to believe that the UR doctor did not get all the relevant information from the adjuster,
(b) you  object because while you believe the adjuster submitted your information the UR doctor didn't properly review it, and
 (c) for either or both of these reasons you  believe a material breach has occurred. Your problem as a doctor taking care of patients will be how to complain effectively. If the organizations to which you pay dues are not allowed to represent you in terms of denied claims either collectively or on an individual basis, you'll be dependent on the injured worker's lawyer or your own efforts.


Not only that: take notice that SCIF is part of the WCAB decision. To our knowledge, SCIF uses only California-licensed doctors for its own UR. That means that SCIF's UR doctors are subject to the medical board in California whereas non-California licensed doctors favored by some other companies need not worry about anybody's medical board (they're not licensed in California and the medical board of the state in which they're licensed doesn't have jurisdiction in California).


Given the changes introduced by the WCAB decision in "Dubon" the PTP has a better chance of getting a case denied by UR and out of the claws of Maximus and into the hands of WCAB which will allow injured workers' cases to be heard by judges. Given Maximus' record to date, this change is a decided improvement.  It is for these reasons that we believe the case is "landmark." We'll watch with keen interest how doctors use this opening. 

WHEN UTILIZATION REVIEW DECISIONS ARE INVALID: Jose Dubon v World Restoration & SCIF "en banc" decsion

UTILIZATION REVIEW (UR) DECISIONS ARE NOW INVALID IF IT IS SHOWN THAT THE UR DECISION WAS "UNTIMELY" or suffers from material (underlining added) procedural defects "that undermine the integrity of the UR decision." This WCAB decision is "en banc" and also states that "minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination." 


This statement is derived from page two of the Workers Compensation Appeals Board (WCAB) "en banc" decision  for the State of California in Jose Dubon vs World Restoration and State Compensation Insurance Fund (SCIF) filed at San Francisco on 2/27/14.


This "en banc" decision also states that the "issue of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB."


Of keen interest is the following additional conclusion by the WCAB: "If a defendant's UR is  found invalid, the issue of medical necessity is not subject to IMR (underlining added) but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required."


Finally, WCAB also states that when UR is provided in a timely and valid manner  the issue of medical necessity shall be resolved through  the IMR process if requested by the employee (editor's note: it is the employee who must make the actual request).


Conclusion:


This decision has major importance for injured workers and their PTPs (primary treating physicians). For injured workers unfairly treated by  the system, this decision is a decided victory; however, there are caveats, e.g., it will not always be easy to decide when wrongful steps reflect  "minor technical or immaterial defects" or "material procedural defects."


Editor's comment: The Achilles' heel in the process is UR where many of the participants are not licensed in California and are not subject to the jurisdiction of this state's medical board or even to the jurisdiction of their own state medical board since the latter board does not have jurisdiction in California. These UR decisions may often be careless in part because they're not subject to public policy review by any state medical board.


Reference


Jose Dubon vs World Restoration and State Compensation Insurance Fund, Case Nos. ADJ 4274323 (ANA 0387677) and ADJ 1601669 (ANA 0388466).

INSIDER REPORT FOR WORKERS COMP CONSULTANT DOCTORS

REVIEW OF RECORDS UNDER CODE 99358 HAS BEEN DELETED
 
While this  report is aimed at doctors who are asked to do consultations for injured workers, its comments should be of interest to attorneys on both sides, insurance companies, adjusters, and injured workers. Most of the consultants who interview and examine  injured workers know by  now that Dr. Das, speaking for the administration at the workers comp hearing in Oakland earlier this month, told the audience that the doctors who do consultations should be "advocates" for their patients and should prepare their consultation reports free of charge. While well meaning, the remarks showed a lack of knowledge about how the system works. To begin with, consultations may also be requested by insurance companies, defense attorneys,  and adjusters, not just by injured workers, applicants, and their lawyers. Das' remarks would put the defense consultant in the position of  "advocating" for the insurance companies. In fact,, the consultant is supposed to provide an expert opinion as part of a search for truth. The consultant is  not supposed to "advocate" for anything but the truth as it is believed by the consultant.


As to the free-of-charge remark, Dr. Das didn't acknowledge that the transcription fee for these reports is often in excess of one hundred dollars. Providing such reports free-of-charge amounts to a subsidy for the insurance companies which works against injured workers' interests. More to the point, medical offices would find that shelling out a hundred bucks to provide "free" reports is the  straw that breaks the camel's back. The answer would be to stop doing consultations.  


Here's how the money part worked under the OMFS or Official Medical Fee Schedule with reference to consultations requiring review of records which would be billed under  Code 99358, now deleted as a billable code since January 1st.


99358  is, or was, the code number used to identify review of records, as in prolonged E & M services before and/or after patient care. Its standard reimbursement was $33.80 per unit. But the consultant would not be paid this amount because the insurance company would deduct $2.54 for what it called a "network" reduction, in other words, a payback to the MPN or Medical Provider Network which retained the consultant in the first place. Now that the code has been rescinded, the entire reimbursement to the consultant under 99358 has also been rescinded. Review of records may now enter a dark age of reduced enthusiasm. 


Readers should ask the workers comp division of the Department of Industrial Relations to provide transcripts of Dr. Das' remarks to determine whether or not her remarks were accurately presented in this column. Doctor Das is Medical Director of the California Division of Workers Compensation.

Injured Workers Lose Again

Ordinarily, California's  injured workers have issues to worry about other than how doctors do their billings. Not so anymore. Here's why: the change over from the Official Medical Fee Schedule (OMFS) to the RBRVS system has come with severe restrictions against injured workers and their doctors. Even though the OMFS paid near the lowest in the nation, insurance companies weren't satisfied. Here's an example: under the OMFS consulting doctors were allowed to bill for review of medical records. Such reviews often entail studying boxes filled to the brim with medical records. These cases are often complicated by divergent opinions from treating doctors, utilization review denials by doctors, many of whom are unlicensed in California, and by doctors who haven't reviewed the patient's complete medical file. Sometimes the shear complexity of injured workers' injuries is overwhelming, e.g,  as when multiple injuries occur, for instance, a fall from a ladder causing broken arms or legs,  neck or back injury, and a head injury.

Treating doctors and consultants often spend extended amounts of time on such cases. Hours just to review medical records is common and until adoption of the new billing codes was compensated under Code 99358. That code has now been eliminated. The next step for the doctor would be to file an independent report for which the code was 99080. That code has also been eliminated even though such reports quite commonly would be around 20 typed pages and would also have required lengthy preparation.

As a further slap in the face, the actual consultation codes, e.g., 99245, have also been eliminated and have been replaced by RBRVS codes based on Medicare that cost the insurance companies less despite a minimal increase in Medicare.  In a nutshell, consultation for and treatment of complicated injuries has become so prohibitive that primary treating doctors can often not get either. Recently, this writer had a case turned down by a teaching hospital: we were told outright that they don't accept workers' comp cases anymore (i.e., their reimbursement level was cut below the minimum standard the hospital felt it could live with).

A few years ago, when an attempt was being made to push SB 923 (Deleon)  through the legislature, Stuart Bussey, MD, JD, family practice specialist and President of the Union of American Physicians and Dentists, Local 206 of  the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, testified that passage of the bill could tie his hands when specialty consultations were needed but were also unavailable. He said that this situation could leave him holding the malpractice bag. The bill crashed but some of its odious provisions were resurrected in SB 863 which is now the law and which mandates replacement of the OMFS by the RBRVS.

Here's the rub: the deletion of the 99358 code for review of medical  records means that many specialists will be unable to review cases as they should. The deletion of the 99080 code means that consultants, if and when they can be obtained,  will not be able to file comprehensive reports for  their patients. It means that Independent Medical Review (IMR) doctors may be much more likely to make decisions (75% of which deny care) without reviewing medical facts.

The billing code changes are a boon for insurance companies because it lowers their administrative expenses. It will also lower actual medical and surgical costs since absent these consultations and reports definitive medical and surgical steps will not be implemented. In chronic pain patients, for instance, it's likely to decrease physicians' treatment options. In this way chronic pain patients may end up on chronic opioids longer than would otherwise be necessary.  It's a chilling thought when this example is extended to other diagnoses requiring complicated orthopedic, neurosurgical, and psychiatric care.

As a result of SB 863, Independent Medical Review (IMR) Physicians will review the necessity of care after Utilization Review (UR) doctors have first had their shot. Readers of this column know that in an op-ed in the San Francisco Chronicle, 8/29/08, entitled "How to practice medicine without a license," it was pointed out that UR doctors don't have to be licensed in California (union leaders should be interested in knowing that AFSCME, at its International  Convention in Chicago in 2006, passed a resolution against this practice). 

Upshot: not only does the UR physician not have to interview or examine the injured worker, the UR doc does not even have to be licensed in California, the state in which he practices. Errors the non-California-licensed UR physician make cannot be evaluated by the California Medical Board. Alleged errors cannot be evaluated by the medical board of the state in which the UR physician is licensed, either, because the out-of-state board doesn't have jurisdiction in California.

All  of this largesse is now extended to the IMR physicians thanks to SB 863. The position of the insurance industry is now buttressed by the deletion of codes 99245, 99358, and 99080. Once again the injured worker takes it in the teeth. Nothing new in that, is there? It's just another injury to the already injured worker.

We recommend repeal of SB 863 and support for SB 626 (Beall) or similar legislation since Senator Beall pulled SB 626  in 2013.

 

AB 1376 DESERVES SUPPORT ...

This bill is intended to make sure that the California workers' comp system continues to have enough interpreters to enable access to care for injured workers who are obliged to rely on interpreters to explain the details of their injuries, how they were incurred, what impairments have been caused, and what level of disability is being experienced. It seems like an easy call -- vote for the bill. In fact, the California legislature did vote for the bill. It passed handily without significant opposition. Now it sits on the Governor's desk as an item of enrolled but not signed legislation. We recommend that Governor Brown sign AB 1376.