How Are QME's Handling ML-104 Issues (California)

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Re: How Are QME's Handling ML-104 Issues (California)

Postby appliedpsych on Wed Jan 10, 2018 11:33 am

How so MK?
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mk61347 on Wed Jan 10, 2018 11:55 am

If they do not agree, then what do you do.
I have never had an ml104 billing questioned ;however, I have never billed report writing as one of the factors.

As an examiner or atty I think I would be hesitant to authorize a qme billing without knowing how much time the doctor was spending with the patient, review of records etc. The amount of time is not known in advance
This sets up a possible conflict if not approved.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby DrDoc on Wed Jan 10, 2018 12:51 pm

Are we as QME’s helpless? In my experience, it is not unusual for one or both parties to ignore all sorts of requests ( Cover letters, medical records, etc.). It is not in the defense attorneys’ interest to help the evaluator bill at a the higher, but completely reasonable, rate. Their job is to limit expenses for their client, the party that pays our bills. I am simply hopeful that with time this clearly wrong-headed interpretation will go away. Is there anything else we can do individually, or as a group,proactively? What about CSIMS?

As an aside, what has CSIMS been up to? What can be pointed to as a concrete good that has come from membership?
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Re: How Are QME's Handling ML-104 Issues (California) (Californi

Postby appliedpsych on Wed Jan 10, 2018 2:07 pm

I myself am not a CSIMS member, but it would be nice if anyone on the board who is could get some comments from them on this issue...seems like they would want to help, or do they even know anything about this concern? I did not see anything on their public website as to this controversy.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mytwocents on Thu Jan 11, 2018 11:27 am

The DWC is an administrative agency. It is ultimately not the job of the DWC to interpret the law. That is what the WCAB and the appellate courts do. Several years ago, there was a WCAB en banc decision called Mendoza reported at 75 Cal. Comp. Cases 634. In that case, the WCAB determined that one of the QME regulations was invalid because it conflicted with two Labor Code sections and exceeded the scope of another. I’m not sure on what legal grounds it could be argued that the DWC Medical Unit’s interpretation of ML-104 is erroneous and therefore invalid. You would have to consult an attorney to carefully analyze the problem in light of the Labor Code and the history of the fee schedule in order to answer that question. If it looks promising, you would then have to find a case where an insurance company refused to pay per ML-104 based on the DWC’s interpretation and then take if before a WCJ in a lien trial. The WCJ would either find in your favor or if an adverse decision issued, you could file a petition for reconsideration and have the WCAB decide. Of course, you would also have IBR to deal with. However, one of the grounds for an IBR Appeal in Labor Code section 4603.6(f) is that “The administrative director acted without or in excess of his or her powers.” I would think that the application of an erroneous interpretation of a regulation would not fall within the powers of the Administrative Director. Just a thought.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby concernedcitizen on Thu Jan 11, 2018 12:19 pm

CSIMS is aware of and has been involved on this issue. They wrote a letter to the DWC speaking out against their current interpretation of the fee schedule. The letter is here:

http://files.constantcontact.com/9dca90 ... ca24c1.pdf

In the letter, CSIMS documents their meeting with the DWC, including Winslow West, the DWC staff attorney who is behind the QME witch hunt and purge of hundreds of QMEs on the basis of underground regulations. The DWC has thrown all of these doctors out of the system, without any prior notice, when they are up for reappointment, claiming that they violated the medical-legal fee schedule because they did not bill in accordance with their new interpretation of the medical-legal fee schedule. CSIMS argued that the DWC could not enforce their interpretation of the ML104 regulations because there are dozens of IBR determinations which contradict the DWC's new interpretation.

Apparently the DWC was unaware that these IBR determinations exist. Nor were they aware that these determinations refute the interpretation that the DWC has used to justify throwing out hundreds of QMEs, demand that the disgraced QMEs pay restitution to insurers, and generally scaring the living daylights out of existing QMEs and doctors who were interested in becoming a QME but have since been scared away.

This is a big deal because under LC 4603.6(f) IBR determinations are "deemed a determination and order of the administrative director." The administrative director can't issue IBR determinations which say one thing and then enforce underground regulations that say the opposite. Winslow West's response to this news was that he needed to pay the IBR reviewers and visit and "retrain" them. Of course such a "retraining" would remove any semblance of "independence" from "independent bill review."

Additionally, CSIMS filed a declaration in the case of Howard v. DWC which is currently being litigated. This case directly addresses the DWC's underground regulations and the QME witch hunt more generally. Here is the declaration:

http://files.constantcontact.com/9dca90 ... 47cbcf.pdf

The next step in the Howard v. DWC case is a hearing on February 6th where the judge is expected to hear arguments over whether he has jurisdiction to declare the underground regulations illegal.

The problem with "mytwocents"'s scenario is that there are virtually ZERO cases in which an insurance company is refusing to pay ML-104 based on the underground regs. The reason this is such a farce is because the DWC is the only one that believes the underground regs are real. Doctor's don't believe it; insurers don't believe it; CSIMS doesn't believe it; Sue Honor-Vangerov doesn't believe it. Only Winslow West and the DWC believes it.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mytwocents on Thu Jan 11, 2018 1:50 pm

I had no idea that insurance companies were routinely paying at ML-104 where the complexity factors were met. Judging from the comments of the doctors on this thread, I assumed they were cutting bills in accordance with the DWC’s interpretation and IBR was upholding them. So, I’m curious about one thing. If there are no complaints from insurers, how is the DWC Medical Unit finding out that doctors are submitting non-agreed upon ML-104 bills? The regulations provide that QME reports that find permanent disability for unrepresented injured workers must be served on the Disability Evaluation Unit of the DWC, but reports concerning represented applicants only have to be served on the parties. Does the DWC have some other way of accessing medical-legal reports, such as through the Audit Unit?
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Re: How Are QME's Handling ML-104 Issues (California)

Postby concernedcitizen on Thu Jan 11, 2018 2:29 pm

The DWC is sending audit letters out en masse to QMEs demanding their 10 most recent initial evaluations. If the QME has billed report preparation for an ML104 on any of those 10 reports, then they are denied reappointment. If the DWC feels that any of the ML104s are not actually ML104, on the basis of any of the underground regulations, then they are denied reappointment. If the QME appeals the denial, then the standard response is a demand for restitution and a boilerplate "statement of issues" which is cc'd to the Medical Board in order to intimidate the doctor and discourage them from pursuing the matter further.

Bottom line: any doctor who bills ML104 can be thrown out of the system under the DWC's current interpretation and "enforcement" practices.

The system is in crisis as the number of panels is growing dramatically every year. Meanwhile, doctors are leaving the system at a shocking pace.

Check this out:
# of QME panels requested in 2007: 70,730 # of QME physicians in 2007: 3,187
# of QME panels requested in 2017: 135,126 (91% increase) # of QME physicians in 2017: 2,152 (32% decrease)

*Note: 2017 panel numbers are an estimate based on 101,345 panels issued 2017 Q1-Q3

The system is on the brink of collapse.

Several QMEs are fighting back through lawsuits and are getting traction in the courts. But the DWC has publicly stated that they won't stop the witch hunt and the QME purge until a judge makes them.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mytwocents on Thu Jan 11, 2018 4:11 pm

There are various grounds in the QME regulations for refusing reappointment of a QME. They involve failure to meet the time frames, problems with notifications of unavailability, certification, and lying about continuing education, as well as rejection of evaluations by the WCAB or violation of WCAB orders which are outside of the scope of the DWC Medical Unit. I’m not sure where allegations of inappropriate billing practices would fit into this. However, since reappointment requires that the QME agree to “abide by all regulations of the Administrative Director” and since the Medical-Legal Fee Schedule is a regulation of the AD, possibly this is what they’re focusing on although the Medical Unit’s strained interpretation of the MLFS is anything but clear.

Per section 63 of the QME regulations, if the AD sustains a decision not to reappoint a QME, the QME has a right to a hearing before an Administrative Law Judge subject to various requirements, as set forth in Chapter 5 of the Government Code, one of which is the right to call witnesses. In such a hearing, it might be interesting to call Mr. West as an adverse witness and have him cross-examined by a competent attorney, after which Sue Honor, an attorney and former Manager of the Medical Unit, could be called to offer her point of view. If an Administrative Law Judge would follow the logic of the DWC’s interpretation, he or she would have to conclude that absent the parties’ agreement, his or her decision in the case should be written during the ALJ’s own time, outside of work.

The only problem would be finding the right case in which the reappointment rejection was based solely on the failure to comply with the flawed interpretation of ML-104. Unfortunately, there are a minority of QMEs that play fast and loose with the rules. When you see a 125-page boilerplate and repetitive report, involving a simple back injury, that the QME claims he spent more than your average 40-hour work-week to produce, it’s hard not to roll your eyes.

Hopefully, the Howard case will resolve the problem. Either way, it would be beneficial to get the decision-making process out of the hands of bureaucrats who aren’t trained in the law, and into the hands of judges who are much better equipped to render a decision that complies with both due process and an interpretation of the law that promotes good public policy.

BTW, if there are currently 2,000+ QMEs and they're demanding 10 reports from each of them, that's 20,000+ reports to review. They must all be working overtime to keep up with the volume and I don't see the State of CA compensating them for all that work. There's no way they could be doing a thorough review to make sure they're not punishing a lot of innocent doctors. That would also be an interesting topic for cross-examination of Mr. West.
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Re: How Are QME's Handling ML-104 Issues (California) (Californi

Postby jpod on Fri Jan 12, 2018 10:43 am

Not sure I am right but I don't think the WCAB has the authority to hear an appeal of a finding by the Administrator Director of the DIR on the interpretation of an AD rule.

The WCAB is part of the executive branch. The appeal is to the judicial branch that the AD overstepped her authority.


Edit:

Actually after rethinking this I am pretty certain i am not right.
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