Medical Unit's New Interpretation of ML-104 (California) (Ca

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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby concernedcitizen on Fri Sep 29, 2017 2:10 pm

The “rumors” on this thread are not only true, the reality is worse for QMEs than has been described so far in this thread. Things have not “calmed” as Dr. Munday suggested. The DWC’s QME purge is running at full steam.

The DWC has systemically purged hundreds of QMEs in the past six months by denying their applications for reappointment. The basis for the denials are alleged billing violations, usually related to ML 104. This occurs without the doctor being granted a hearing (before or after the denial) and without any notice to the doctor, prior to the denial of reappointment, that there are any issues. The doctors are not provided with any good-faith opportunities for remediation or reinstatement.

A lawsuit was recently filed by a handful of QMEs over this issue. See here:

http://www.wcexec.com/flash-report/dir-terminates-400-qmes-without-hearings/

http://www.workerscompzone.com/2017/09/28/see-ya-in-court/

http://www.workerscompzone.com/wp-content/uploads/2017/09/HowardV.DIRQMERecertification.pdf

I have read over a dozen of the denial letters and follow-up correspondence from the DWC to the purged QMEs. The letters are generally boilerplate and raise the same allegations.

This is the typical timeline of what happens when a QME is purged from the system:
1. The doctor receives a letter from the DWC demanding that they provide the 10 most recent initial QME or AME evaluations performed as well as associated documents. See below:

https://ibb.co/nxbBWG


2. The QME may or may not hear back from the DWC by the time their reappointment date rolls around. More often than not, they do not. In that case, the QME ceases being a QME the day after their reappointment date. The DWC advises (if you can get them on the phone) that the doctor can’t perform face to face evaluations until s/he is reappointed. The denial letter rolls in days to weeks (sometimes months) after the doctor’s reappointment date. The most common issues raised in the denial letters are summarized further below.

3. The QME has 30 days to respond to the denial of reappointment letter.

4. The DWC then has 60 days to respond to the responsive letter with a “statement of issues.” The statement of issues is a lengthy legal document which fleshes out more of the DWC arguments as to why the doctor can no longer be a QME. I have seen several of these documents. I have yet to see the DWC reappoint a QME in the statement of issues.

5. At the end of the statement of issues, the doctor can request a hearing. Many doctors have requested these hearing. To my knowledge, none have been granted yet. QMEs who have been denied reappointment have sent multiple letters over the course of months demanding hearing dates. They haven’t been granted, the DWC merely ignores the requests so far.

Here are specific reasons from the denial letters that the DWC is using to deny QMEs reappointment:

1. The DWC believes that QMEs are not allowed to bill for report preparation time unless the report is an ML104 by virtue of an agreement by the parties before the evaluation that the evaluation will involve extraordinary circumstances.

An excerpt from the letters, “Please be advised that the medical-legal fee schedule only allows billing for report preparation under ML 104 when the parties have agreed before (emphasis in letter) the evaluation, that the evaluation will involve extraordinary circumstances. Therefore, the hours you billed for report preparation, and the amounts overbilled constitute a violation of the medical-legal fee scheduled as contained in 8 CCR §9795.”

2. The DWC believes that doctors can’t use the causation complexity factor unless a) the claim must be “denied” or “contested”, and b) the cover letter must include the words “"medical causation is an issue.” This may sound unbelievable. But it’s true. Traci Hinden is an attorney who represents several QMEs who have been ambushed by the DWC. Check out slides from the presentation she gave at COA this summer here: http://coa.org/2017/presentations/QME/7HindenTraci.pdf Slides 8 – 11 speak to the causation issue specifically.

Here is an excerpt from a statement of issues, “As to the cited complexity factor that the report addressed causation, Dr. XXXXX stated in his report that causation was due to the industrial injury. There is no indication that this was a contested claim putting causation at issue or that either party requested a causation analysis as part of the qualified medical evaluation [the cover letter that clearly requested that the doctor address causation was included with the audit submission]. Therefore, causation could not be claimed as a complexity factor in this circumstance.” Winslow West has publicly aired his view on this topic several times at various COA, CSIMS, and Examworks events.

3. Another common thread in these letters is that the DWC is attacking doctors who bill for medical research. Their position is that since you are a doctor and you are an expert (right?), then there is no reason for you to perform research.

An excerpt from a statement of issues, “As to the cited complexity factor related to medical research, there was no need to investigate medical issues to resolve the issues in dispute involved in the evaluation.”

*** And a special something for all you psychiatrists and psychologists out there ***

4. The DWC believes that psychiatrists and psychologists cannot use both factors 6 (causation) and 9 (psychiatric/psychological evaluation) as separate, independent complexity factors in the same evaluation.

An excerpt from a statement of issues, “As to the cited complexity factor that the report addressed causation, there is no basis asserting this as a separate complexity factor in addition to asserting a complexity factor for the report being a psychiatric or psychological evaluation. A complexity factor was added to the medical-legal fee schedule for a psychiatric or psychological evaluation being the primary focus of the medical evaluation in large part out of consideration of the requirement to address causation in a psychiatric evaluation pursuant to Labor Code §3208.3. Therefore, addressing the issue of causation is subsumed in the complexity factor given for a psychiatric or psychological evaluation being the primary focus of the medical-legal evaluation.”

When you boil it all down, the DWC is attacking QMEs’ usage of complexity factors to the point that virtually all ML 104s are viewed as “overbilling.” This effort to purge QMEs who bill ML 104s was done a) without any required change to the regulations under the Administrative Procedures Act, and b) without any notice, opportunity to be heard, or good-faith collaboration with the QMEs in question.

Given that there will be a revision to the medical-legal fee schedule coming in the next several months (spearheaded by Winslow West, according to the grapevine), it appears that this QME purge is probably going to be used by the DWC as justification for changing the fee schedule. The argument will probably be, “The current fee schedule is just too complicated. Look at the all the doctors we had to throw out of the system because they just couldn’t understand it. It’s time for a simpler fee schedule. Maybe the doctors will understand something simpler.”

If the events of recent years such as the advent of IMR, the psych repealer in SB863, and the inscrutable lien regs are any indication, the “new and improved” fee schedule will probably result in dramatically reduced reimbursement for providers.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby DrDoc on Sun Oct 01, 2017 2:33 pm

It's clear that a lot is unknown. But there seems to be a disturbing trend. Of course, it would be helpful for us to understand what the ousted doctors had been specifically accused of. There is implied bad faith by the bureaucrats on the board. That is, assuming the QME's followed the correct standards in billing as initially put forward by the board. Then they were audited and removed from the system, under some "new" set of rules, which were not made available to the doctors. So the doctors had no way of knowing that they were out of line. This sounds like 14th century European legal treachery. The mother of no-win situations.

I guess the question for QMEs who have some time left before recertification, is what might be the best approach to billing in the meantime. For instance, is there a safe and non-controversial way of billing a typical QME. So, if one is audited, perhaps the likelihood of getting tooled would be minimized. Such an approach would likely result in significant reduction in reimbursement (If there is such an approach). But I wonder if it would prove to be a helpful form of insurance until after being successfully recertified.

Maybe this is overkill. I don't know. I wonder what others think. Of course, the most helpful thing would be access to concrete information as to what the system's bureaucrats are implementing and expecting in billing.

Participating as an expert in the Worker's Compensation has always been somewhat strange and unpredictable. But if these things are really occurring, it truly baffles the mind. Not to be overdramatic, but it brings to mind the dystopias of Orwell, Kafka and Camus.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby spreare on Mon Oct 02, 2017 9:17 am

Up until now I would have thought this all fake news. It will be interesting to read the response.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby spreare on Mon Oct 02, 2017 9:25 am

It would be really great if some of the legal minds here, LA, MTC et al might chime in whether DWC would be able to yank or non-renew QME's without hearings etc. This is all very odd.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby appliedpsych on Mon Oct 02, 2017 1:53 pm

Perhaps the real long-term agenda is to gather evidence and work toward getting rid of QME's all together, re-writing codes and regulations as need be to do so.

Why pay all those pesky QME bills when one can find reasons to just get rid of them period, and make IMR the total law of the land.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby DrDoc on Mon Oct 02, 2017 2:37 pm

It doesn't seem to me that the burning question at this time is whether or not the system can do it. Of course, they can virtually do what ever they like. That doesn't mean that it is lawful, and that litigation etc. could ultimately influence the matter. But that takes a lot of time and money; and there are no guarantees. I think the most urgent issue is what qme's still in the system might be able to do before renewal of license process to reduce risk of getting thrown out. Hence my question about possible other ways of billing. It has been mentioned that doctors audited had to submit their previous 10 reports and associated billing and documents. I would wonder about a way to bulletproof those last 10 reports in anticipation of such an audit.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby DrDoc on Mon Oct 02, 2017 2:37 pm

It doesn't seem to me that the burning question at this time is whether or not the system can do it. Of course, they can virtually do what ever they like. That doesn't mean that it is lawful, and that litigation etc. could ultimately influence the matter. But that takes a lot of time and money; and there are no guarantees. I think the most urgent issue is what qme's still in the system might be able to do before renewal of license process to reduce risk of getting thrown out. Hence my question about possible other ways of billing. It has been mentioned that doctors audited had to submit their previous 10 reports and associated billing and documents. I would wonder about a way to bulletproof those last 10 reports in anticipation of such an audit.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby spreare on Mon Oct 02, 2017 2:55 pm

Oh you are looking at ways to prevent you from being a DWC medical target.... Me too I guess. I have thought about this after reading the complaint filed with the LA superior court. You would have to only bill out ML 102. I always just thought that if I followed the written regs and played by the rules that I would be okay. I cannot reasonably anticipate for a scenario where following the written regulations are not /is not a bulletproof safeguard. There is no safeguard against underground regulations. You are asking a question that although reasonable, has no reasonable answer. I could say, bill out only ML 102. But I am not going to do that. If I have a stack of 2000 pages of medical records I am not going to be billing out no ML 102. There is something really rotten in the state of Denmark. I thought this was all fake-news, but it is not. I am preparing for the eventuality that my PQME will not be renewed, and I will have to make up the income in practice. If this can happen (non-renewal) to 13% of physicians in the PQME pool without cause then I must assume it can happen to me. The reason why I am doing so is bc based on this complaint abiding by the rules is no guarantee or protection. The leadership at the helm of the DWC medical unit apparently have no compunction about non-renewing PQME's based on underground regulations that we cannot predict. Why would any physician want to take part in such a scheme? There is too much work outside the PQME system to be treated this way IMHO. And wow, what ammunition this gives carriers now. If they don't like a PQME they can just file a complaint and whether justified or not the the DWC can non-renew just because a bureaucrat made the judgement without any reference to procedure of due-process. I have seen some astonishing things in workers comp, but the system cannibalizing its own PQME pool , this is the lowest I have seen. We are talking about excellent qualified physicians here, really remarkable people that the DWC medical unit has destroyed. So some of the crazy things I have seen at least had legislation behind it. Here we are talking about arbitrary removal of the system f the most qualified, most skilled individuals in the system -- without warning nor recourse. And you want a way to bulletproof against that? The question now seems less reasonable.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby DrDoc on Mon Oct 02, 2017 4:06 pm

Well, it might be premature to conclude that the sky is falling. It does seem reasonable to explore ways to limit risk of damage. I've never been any sort of expert when it comes to the various ways of billing for QME/AME evaluations. We are also only talking about the last 10 reports that seem to be audited if recertification is brought into question. A response or two from members of the forum with some thoughts on the matter would be greatly welcomed.
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Re: Medical Unit's New Interpretation of ML-104 (California) (Ca

Postby spreare on Thu Oct 05, 2017 6:59 am

DrDoccc I was thinking about this a little more and although we do not have all the details it appears from one of the complaints that the DWC was not accepting the medical research from the doctors reports and with that, the reports were down-coded and with that, alleged as defective. So I guess one lesson would be not to over do the medical research. Perhaps this doc cut and pasted the same research for every report. Perhaps the amount of medical records review was egregious. I think all we can do to protect ourselves is look at our reports and ask if the billing components pass the smell test.
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