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

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

Postby spreare on Fri Jan 12, 2018 2:35 pm

"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. "

I am just curious how often something like that happens, and if this is what is causing Winslow West to go after the PQME's. This notion that PQME's can only charge for report writing time is really a brand new concept that seemed to emanate from the mind of one person. The labor code states that for extraordinary cases. Mytwocentrs, how do you interpret the following reg regarding a PQME billing for his/her time? Keep in mind that up unil about two years ago, The DWC had a 2006 tutorial that indicated that report writing time is reimbursable at the hourly rate for ML 104, 101/106.
I have to assume that Winslow took that tutorial off the site. all QME classes trained that way, and so did Sue Honor. Who is this guy Winslow West, and why does he get to screw with the system so much?

§ 9795. Reasonable Level of Fees for Medical-Legal Expenses, Follow-up, Supplemental and Comprehensive Medical-Legal Evaluations and Medical-Legal Testimony.

(a) The schedule of fees set forth in this section shall be prima facie evidence of the reasonableness of fees charged for medical-legal evaluation reports, and fees for medical-legal testimony.
Reports by treating or consulting physicians, other than comprehensive, follow-up or supplemental medical-legal evaluations, regardless of whether liability for the injury has been accepted at the time the treatment was provided or the report was prepared, shall be subject to the Official Medical Fee Schedule adopted pursuant to Labor Code Section 5307.1 rather than to the fee schedule set forth in this section.
(b) The fee for each evaluation is calculated by multiplying the relative value by $12.50, and adding any amount applicable because of the modifiers permitted under subdivision (d). The fee for each medical-legal evaluation procedure includes reimbursement for the history and physical examination, review of records, preparation of a medical-legal report, including typing and transcription services, and overhead expenses. The complexity of the evaluation is the dominant factor determining the appropriate level of service under this section; the times to perform procedures is expected to vary due to clinical circumstances, and is therefore not the controlling factor in determining the appropriate level of service.
(c) Medical-legal evaluation reports and medical-legal testimony shall be reimbursed as follows:
5
Comprehensive Medical-legal Evaluation Involving Extraordinary Circumstances. The physician shall be reimbursed at the rate of RV 5, or his or her usual and customary hourly fee, whichever is less, for each quarter hour or portion thereof, rounded to the nearest quarter hour, spent by the physician for any of the following:
(1) An evaluation which requires four or more of the complexity factors listed under ML 103; In a separate section at the beginning of the report, the physician shall clearly and concisely specify which four or more of the complexity factors were required for the evaluation and the circumstances which made these complexity factors applicable to the evaluation. An evaluator who specifies complexity factor (3) must also provide a list of citations to the sources reviewed, and excerpt or include copies of medical evidence relied upon.
(2) An evaluation involving prior multiple injuries to the same body part or parts being evaluated, and which requires three or more of the complexity factors listed under ML 103, including three or more hours of record review by the physician;
(3) A comprehensive medical-legal evaluation for which the physician and the parties agree, prior to the evaluation, that the evaluation involves extraordinary circumstances. When billing under this code for extraordinary circumstances, the physician shall include in his or her report (i) a clear, concise explanation of the extraordinary circumstances related to the medical condition being evaluated which justifies the use of this procedure code, and (ii) verification under penalty of perjury of the total time spent by the physician in each of these activities: reviewing the records, face-to-face time with the injured worker, preparing the report and, if applicable, any other activities.



edit: for the lawyers in here: is there anything in the above language that seems to prohibit a PQME from charging for report prep time for an ML 104? I mean, a doctor has to assess the issues and spend time in that capacity. Does the above language appear to prohibit that time from being billed for an ML 104? I read it and it seems clear as day. So what does Winslow West see that I do not? It has been the practice for 20 years that if a QME report meets the complexity factors, report prep time is reimbursable. So after all this time, Winslow West figured out everyone has been doing it incorrectly? Is Winslow West the genuis, and everyone else is wrong? Well, what do the regs say?
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Re: How Are QME's Handling ML-104 Issues (California)

Postby cmunday on Fri Jan 12, 2018 3:16 pm

Spreare

As I understand Mr. West's argument it is that number 3 of the 3 types of ML-104 specifically mentions billing for time spent preparing the report but numbers 1 and 2 types of ML104 do not specifically mention billing for time spent preparing the report. Therefore, he concludes that this was meant to preclude billing for report preparation for the first two types of ML104. I have heard him present on this twice. If anyone else understands the argument differently I would like to hear it.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby spreare on Fri Jan 12, 2018 3:49 pm

Perhaps Winslow West is just a lot smarter than I am though. But it seems clear to me. We all know that the 3rd listing is intended for physicians that will not accept a case unless they can bill an hourly rate, that is why -- or strike that, it has more to do with is getting a complex case that does not meet the criteria. 3) has nothing to do with whether all the complexity levels are there, but there is something about that case that is otherwise extraordinary even though all the factors are not otherwise met. An example might be IW exposed to a biological agent that caused a myocardial infection. This could be an extraordinary case, and although there may not be a lot of records, or a lot of F/F time, by the nature of the case it will be extraordinary and so the physician wants agreement that it is extraordinary and therefore he/she needs to verify under penalty of perjury why it is extraordinary, time spent, etc. This 3) is an exception to the rule where all the factors are not otherwise present but the case is nevertheless extraordinary, that is why 3 exists and that is why the doc needs to sign under perjury to everything.
See, Winslow West has no experience doing this work and he is trying to make up these rules. He has no business doing this bc he simply does not understand. 3) is a special case and has nothing to do report prep time for ML104 outside of that context. It only has to do with extraordinary cases that do not fit the criteria.

Interesting though that West says 3/ report time precludes it without permission. Is there some legal concept to apply when reading regulations. Does the inclusion of "X" in one subsection cause the exclusion of X in the previous sections if not mentioned in those sections?
and besides this, mytwocents added in an interesting twist when he/she wrote that the courts will evaluate "on the history of the fee schedule." The hx of this fee schedule is such that the DWC had adopted the previous interpretation that reports prep time is billable, and the DWC tutorial was on the dWCwebsite util Winslow removed it. So clearly the DWC had this previous interpretation and changed their interpretation (new regime) and did not have a public hearing. But again, there is the history of the fee schedule, and that history is that was accepted a certain way for many years. I certainly have CE publications sanctioned by the DWC that instruct on billing for prep time under Ml104. But let us also look at the code:

Comprehensive Medical-legal Evaluation Involving Extraordinary Circumstances. The physician shall be reimbursed at the rate of RV 5, or his or her usual and customary hourly fee, whichever is less, for each quarter hour or portion thereof, rounded to the nearest quarter hour, spent by the physician for any of the following:
(1) An evaluation which requires four or more of the complexity factors listed under ML 103; In a separate section at the beginning of the report, the physician shall clearly and concisely specify which four or more of the complexity factors were required for the evaluation and the circumstances which made these complexity factors applicable to the evaluation. An evaluator who specifies complexity factor (3) must also provide a list of citations to the sources reviewed, and excerpt or include copies of medical evidence relied upon.


Does not "Any of the following" with his or her usual and customary hourly fee, meaning that they can bill the hourly rate? There certainly is no exclusion anywhere.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mytwocents on Sat Jan 13, 2018 11:00 am

jpod: Regulations are invalid to the extent that they conflict with or go beyond the scope of the enabling statute. The WCAB does have the authority to determine the validity of administrative regulations and has done so in a number of cases. I’m just not sure what a party would have to do to get the WCAB to address Mr. West’s interpretation of the fee schedule. I would assume that the attorneys who filed the Howard case thoroughly evaluated their client’s options and concluded that this was the best way to attack the problem.

spreare: The legal interpretation of ML-104 that I have heard is that subsection 9795(b)(3) was supposed to be limited to the first sentence that appears after (3). Following that first sentence, there should have been a new paragraph containing the rest of the language that applies equally to (1), (2) and (3). Thus, there are three ways to qualify for ML-104, one of which is the agreement of parties. Once it has been established that one of these three criteria has been met, the doctor is further required to explain the extraordinary circumstances and swear to the amount of time spent for each activity.

Explanations notwithstanding, Mr. West’s interpretation simply doesn’t make sense from a logical standpoint. What's the purpose of a rule that a doctor only has to provide a sworn declaration of his time if the parties agree that he can bill at ML-104, but not under the first two criteria? Do doctors need to be threatened with a perjury charge if they pad the bill in connection with report writing but not in connection with any other activity? Ridiculous! On the other hand, the drafting error explanation results in an interpretation that is reasonable and, as you note, was followed by the DWC up until recently.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby spreare on Sun Jan 14, 2018 7:45 pm

"Regulations are invalid to the extent that they conflict with or go beyond the scope of the enabling statute. "

So in light of the above statement how? does one in any legal terms reconcile Medical Unit's position on Causation only being addressed when "the case is denied."

Because the law states: (6) Addressing the issue of medical causation, upon written request of the party or parties requesting the report; § 9795.
So the DWC just made this new regulation out of thin air and is non-renewing PQME's based this.

Also, the DWC non-renewing doctors that apply apportionment and include it as a complexity factor prior to P&S? the law states:

Addressing the issue of apportionment, when determination of this issue requires the physician to evaluate the claimant's employment by three or more employers, three or more injuries to the same body system or body region as delineated in the Table of Contents of Guides to the Evaluation of Permanent Impairment (Fifth Edition), or two or more or more injuries involving two or more body systems or body regions as delineated in that Table of Contents. The Table of Contents of Guides to the Evaluation of Permanent Impairment (Fifth Edition), published by the American Medical Association, 2000, is incorporated by reference.

So the law says nothing about permanent and stationary -- and for good reason. Parties are mostly settling cases before P&S and the parties like to have an idea about the apportionment values.

I think we really do have a rogue medical unit right now. They have "Gone rogue" Sara Pallin would love them.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby mytwocents on Tue Jan 16, 2018 5:12 pm

If the Medical Unit is saying that medical causation can only be addressed if the case is denied, they’re only partially right. A QME does not get to claim medical causation as a complexity factor for denied injuries in general. There must be a dispute that requires a medical opinion to resolve. If an injury is denied because the defendant thinks it happened outside of work, that’s something for a judge to decide and not a doctor. Furthermore, you can have a disputed issue of medical causation concerning a denied body part on a case that is otherwise admitted.

However, the DWC did not just make up this part of the fee schedule. It’s entirely consistent with the Labor Code which says that medical-legal reports must be reasonable and necessary to prove or disprove a contested claim. QMEs aren’t supposed to comment unless there’s a dispute and the way they know there's a dispute is if the parties ask for their opinion. A number of years ago, an AME took it upon himself to find no medical causation on a case that was admitted and all they wanted was an opinion on PD. The defendant promptly stopped paying and it was a big mess.
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Re: How Are QME's Handling ML-104 Issues (California) (Californi

Postby spreare on Tue Jan 16, 2018 6:45 pm

:It’s entirely consistent with the Labor Code which says that medical-legal reports must be reasonable and necessary to prove or disprove a contested claim. QMEs aren’t supposed to comment unless there’s a dispute and the way they know there's a dispute is if the parties ask for their opinion. A number of years ago, an AME took it upon himself to find no medical causation on a case that was admitted and all they wanted was an opinion on PD. The defendant promptly stopped paying and it was a big mess."

That puts a whole new spin on the issue that for example, QME used causation as a complexity value (per a cover letter request) and the underlying case was accepted. Somehow Winslow West gets wind of this and he refuses to renew a PQME under the auspices that he/she failed to perform in a reasonable and necessary manner. I do feel though that simply billing for a higher complexity level than one might interpret is very far from fraud and completely lacks grounds for non-renewal. Perhaps the DWC has this agenda trying to make a statement. They may have seen a number of egregious examples and DWC is now trying to shake things up to get all the PQME's in line. I think that is what this may be about reading bw the lines. I was thinking in simplistic terms when I brought up the LC issue re causation not taking into account the reasonable and necessary rule. Since there is the whole "reasonable and necessary" clause, basically there is almost no limit to the havoc that the agency can do to PQME's by way of accusations of failing to be reasonable and necessary. And what can the PQME's do? The agency holds all the cards. They are apparently able to operate outside a mechanism what is ordinarily thought of as due -process. Someone is accused of fraud-- they get a judge. But in this case there are no criminal accusations and no charges. Just an agency that is taking an affirmative stance to non-renew certifications and not providing for respondent appeals processes. However, eventually, these cases will go to judges, probably within the WCAB. Hopefully, some en banc decisions on these issues will occur.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby appliedpsych on Tue Jan 16, 2018 11:31 pm

A cynical view would be that this is the first step in doing away with the QME process altogether. Get QME''s to drop out of the system, play the 'their aren't enough QME's, we need a new approach' card. Special legislative action creates a different QME-like system open to the same docs across the country that review only case records, and do not see applicant. Voila, flat rate, low cost QME's by secret docs that no one ever knows, just like in IMR.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby spreare on Wed Jan 17, 2018 8:58 am

AppliedPsyche, I have considered that what you are contemplating. But I think that would mean a conspiracy, where the principals of DWC have banded together to formulate a policy to undermine the current QME system. It is hard to imagine.
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Re: How Are QME's Handling ML-104 Issues (California)

Postby concernedcitizen on Wed Jan 17, 2018 10:49 am

Mytwocents wrote:
A QME does not get to claim medical causation as a complexity factor for denied injuries in general. There must be a dispute that requires a medical opinion to resolve.


This cuts to the heart of the issue. Contrast this with CCR 9795: https://www.dir.ca.gov/t8/9795.html

(6) Addressing the issue of medical causation, upon written request of the party or parties requesting the report;


The causation complexity only requires:
1) That the QME address the issue of medical causation AND
2) There be a written request of at least one party to do so

The regulation doesn't say anything about whether the QME can use the complexity factor if:
1) The claim is denied or accepted
2) Treatment has or has not been provided
3) Whether the party writing the letter which requests that the QME address causation actually has the specific word "issue" in it or not (believe it or not, one of the DWC's arguments)
4) Whether the party writing the letter which requests that the QME address causation actually intended to ask the doctor to address the causation or just wrote a boilerplate cover letter (believe it or not, another one of the DWC's arguments)

If the DWC wants to create new restrictions on the various complexity factors, then there is a proper legal avenue to follow to make those changes. Throwing hundreds of QMEs out on the basis of these bogus interpretations and then refusing to provide them timely hearings is not a fair way to regulate the system.
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