The Division of Workers’ Compensation has submitted a controversial set of amendments to the Med-Legal Fee Schedule that could take effect on April 1, 2021.
The Office of Administrative Law still must approve the fee schedule, but most stakeholders are assuming that this is a done deal. Technically, the OAL could decline to approve the fee schedule or postpone the implementation date.
Like most fee schedule changes, this one will increase costs for defendants in the California workers’ compensation system. As our friends at WorkCompCentral noted, the fee schedule would:
- Increase reimbursement of comprehensive med-legal evaluations up to $2,015, which would include review of up to 200 pages.
- Supplemental reports would cost $650 and include review of up to 50 pages.
- Re-evaluations would cost up to $1,315, and would include review of up to 200 pages of new records.
- Any review of additional pages is $3 per page.
- Med-legal testimony would cost $455 an hour.
- Sub rosa surveillance would be reimbursed at $325 an hour.
- AMEs get various multipliers times the QME rate.
- Various multipliers to increase evaluation reimbursements for psychiatrists or psychologists, internal medicine specialists, and oncologists.
The goal of these changes is to help the DWC entice more doctors to join the QME panel system. This is to help ultimately achieve the goal of obtaining better-written reports.
And let me be clear – that is a wonderful goal. I am for raising rates for the good doctors who write detailed QME reports. But my problem with this proposal is that it incentivizes the worst QMEs with the most conclusory reporting.
Of all of these new changes, the one that stings the most is the $3 per page rate hike. The end result of this is that defendants are effectively forced to pay doctors for apportionment.
How is that exactly? Well, let’s take the example of a “frequent flyer” in the comp system.
For example, let’s say Jack has an accepted specific date of injury of 12/1/20. Jack filed claims every two years during the last decade as he has bounced around from job to job. Jack also likes treating at his local hospital emergency room, as he’s a bit of a hypochondriac unfortunately. Did I mention that Jack’s a bad driver? He’s had a few nasty fender benders over the years. (It is Southern California after all, who hasn’t?) Jack doesn’t mention most of this at his deposition.
In order for the QME in orthopedic surgery to have an accurate medical history, they’d have to review:
- The treatment records for the DOI of 12/1/20.
- Jack’s deposition.
- The records from the 4-5 prior claims he filed prior to the DOI, which could include medical reports, pleadings, depositions, etc.
- Medical and insurance records from the auto accidents, including photos showing that Jack’s vehicles were indeed a total loss.
- The hospital records.
Let’s say all of this amounts to 2,000 pages. The cost of that initial evaluation report is going to be at least $7,415 at a bare minimum, not including the correspondence that the parties send to the QME.
That is significantly higher than things used to be. Is it the defendant’s fault that Jack wasn’t forthcoming about all of this? Nope. Is the defendant still paying more for Jack’s evaluation than a less “busy” applicant’s evaluation? Yes.
So defense attorneys such as myself are going to have to whittle down what we send to the QMEs. Perhaps I’ll just send the QME only the most relevant part of those subpoenaed records. Let’s say that reduces the page count to 1,000 pages. We’re still talking about a report that costs at least $4,415 (probably more like $5,000) for an initial evaluation.
One has to ask – is that going to serve the ultimate goal of getting better-written reports? As a journalist who has edited tens of thousands of articles, I am going to venture a guess and say “probably not.”
Why so skeptical? Well, the doctors who already write good reports are going to keep on doing what they’re doing, because they’re good at their jobs.
But what about the doctors who write really conclusory reports, and don’t adequately explain their opinions? Are they going to see the higher reimbursement rates and be more eager to act as a QME? Probably so.
Is additional money going to force the QMEs who have subpar reports to change their style to write more detailed and analytical reports? Probably not. The money arguably incentivizes bad reports.
As WorkCompCentral wrote, “One of the proposal’s provisions would place an administrative burden on providers that could force them to spend time sorting through documents related to a claim to determine which ones are new and which are duplicates.”
You see, the problem with that is the “good QMEs” already are aware of which records are new, and which ones are not, because they are well-organized and know how to quickly identify what is new and what is old. The subpar QMEs who review records, then ask for the same records over and over again are not. Guess what the QMEs who ask for the same records over and over again are going to do? Bill defendants for review of the same records, over and over again, with shabby and repetitive reports.
Defendants can object to that with EORs/EOBs, but that will simply create more litigation and arguably self-generated conflicts of interests with QMEs.
In the discussion around the new schedule, many have said training and retention are going to be key to helping the subpar QMEs get better at their jobs. That is true. The problem is that this fee schedule proposal doesn’t do anything to serve that goal.
Got a question about workers’ compensation defense? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he heads the firm’s Sports Law Division and watches the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin is a member of Bradford & Barthel’s COVID-19 Taskforce and has given numerous webinars on the topic. He previously worked as a journalist for WorkCompCentral, where he reported on workers’ compensation case law and legislation in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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