April 2021 Update: DWC ISSUES AND APPROVES NEW MEDICAL-LEGAL FEE SCHEDULE
Welcome to the first edition of KHL’s monthly case law update. This edition’s exciting breaking news concerns medical-legal fee schedules. The DWC has issued a new medical-legal fee schedule governing the billing standards for Medical-Legal Examinations in the WCAB arena. The regulations in their entirety can be found on the DWC website. Below are key insights and an overview of how the new regulations will affect your business.
The DWC’s statement explaining the new fee schedule was last changed in June of 2006 and was later amended in 2013. It was noted the average QME currently earns approximately over 200% more from Panel QME reports than in FY 2007.
One of the more controversial provisions is the “pay per page” charge of $3 per page for each page reviewed after 200 pages. The first 200 pages of record review are included in a flat fee allowable for initial evaluation and/or follow up evaluations.
Another major change to the medical-legal fee schedule is the elimination of complexity factors. Instead, the DWC has established flat fees for initial evaluations, follow-up evaluations and supplemental reports. It also established fees for medical-legal testimony, and review of sub rosa films. It also increases the modifier for agreed medical evaluators from 25 percent to 35 percent, and establishes increased modifiers for psychiatrist, psychologist, toxicologists and oncologists.
KHL INSIGHTS ON REGULATIONS
The updates to the medical-legal fee schedule, although certain to reduce costs with regards to bad actor QME’s notorious for their 4th and 5th Supplemental Report, initial evaluation costs, especially comprehensive evaluations requiring an interpreter and hundreds or even thousands of pages of records, can easily increase the overall costs of initial QME evaluations to over $5,000.00 on average.
The specificity of the new medical-legal fee schedule will allow Defendants to accurately estimate the costs of an initial and supplemental reporting. The ways of old where all documents in the file were sent, even if irrelevant, are no longer viable when faced with the $3.00 per page charge after review of the 200th page.
According to the seminal case Suon v. California Dairies (2018) 83 CCC 1803 (WCAB en banc), both parties have the right to object to medical records and nonmedical records offered to be sent to the QME. At the very least, defendants must ensure duplicate records are not being sent to be billed at $3.00 per page for review.
One Pitfall: The Board has discretion to develop the record when the medical record does not contain substantial evidence to support a Finding regarding an issue submitted for decision. (See Lab. Code, §§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]). These disagreements about which medical records are to be sent to the QME are the type which will, almost certainly result in delay and additional litigation. Thus, although the new medical-legal fee schedule purports to provide Defendant(s) an opportunity to control medical-legal costs, it could result in more disputes about which records should be reviewed by a medical-legal evaluator.
Advice: The QME regulations are valid as of April 1, 2021. This applies to appointments, which were scheduled prior to April 1, 2021. Please direct your defense attorney to issue a Supplemental Verification in accordance with L.C. 4062.3 and CCR 9793 with a list of the exhibits. The Declaration must contain the number of pages sent, with a declaration stating compliance with L.C. 4062.3. It is good practice to advise the AME/QME of their duty to issue a declaration in their report under penalty of perjury as to the total number of pages reviewed for that specific evaluation.
The below is a list of the codes and regulations associated with the fee changes and some insights regarding each of the changes.
FEES UNDER THE MEDICAL-LEGAL FEE SCHEDULE
CCR § 9795 establishes fees for medical-legal evaluations, which are outlined below:
· Comprehensive Medical-Legal Evaluation: $2,015. The fee applies to all medical-legal evaluations, which are not follow-up or supplemental evaluations. The first 200 pages of record review are included in this fee. Any records reviewed in excess of 200 pages will be billed at the rate of $3 per page.
· Supplemental Medical-Legal Evaluations: $650. The fee includes services for writing a report after a request for a supplemental report from a party in interest or upon receipt of records not available at the time of the initial or follow-up medical-legal evaluation. The first 50 pages of record review are included in this fee. Any records reviewed in excess of 50 pages will be billed at the rate of $3 per page.
· Defense to Supplemental Report Billing: Fees will not be allowed for supplemental reports: (1) for a physician’s review of information that was available in the physician’s office for review or was included in the medical record provided to the physician prior to preparing a comprehensive medical-legal report or a follow-up medical-legal report; or (2) addressing an issue that was requested by a party to the action to be addressed in a prior comprehensive medical-legal evaluation, a prior follow-up medical-legal evaluation or a prior supplemental medical-legal evaluation. Failure to issue a supplemental report because of an inability to bill for the report under this code would constitute grounds for disciplinary action against the QME by the administrative director.
· Follow-up Medical-Legal Evaluation: $1,316.25. To qualify as a follow-up medical-legal evaluation by a physician the evaluation must occur within 18 months of the date of the prior comprehensive medical-legal evaluation by the same physician. The first 200 pages of record review are included in this fee with any records reviewed in excess of 200 pages to be billed at the rate of $3 per page. The 200 pages must not have been reviewed as part of the initial comprehensive medical-legal evaluation or as part of any intervening supplemental medical-legal evaluations
· Missed Appointments: $503.75. Missed appointments are as follows: (1) the injured worker does not show up for the evaluation; (2) the injured worker leaves the evaluation before completion; (3) the injured worker is more than 30 minutes late for the appointment, and the QME won’t accommodate delay; (4) the interpreter fails to show up for the evaluation; (5) Cancelled less than six business days prior to the scheduled appointment date. Irrespective of any missed appointment, if the physician produces a record review report within 30 days of the date of the missed appointment, the AME/QME is entitled to reimbursement at the rate of $3 per page for any records reviewed in excess of 200 pages. Any pages reviewed for this record review report must later be excluded from the page count for any future evaluation which takes place. If the fees for failed appointments and for late cancellations are incurred through the fault of the injured worker and/or their legal representative, the employer may seek to credit missed appointment charges against the worker’s award.
· Medical-Legal Testimony: $455 per hour. The physician will be reimbursed at $455/hour, or his or her usual and customary fee, whichever is less, for each quarter hour or portion thereof, rounded to the nearest quarter hour. The physician is entitled to fees for all itemized reasonable and necessary time spent related to the testimony. This includes: (1) reasonable preparation such as document review and (2) travel time. The AME/QME shall be paid a minimum of two hours ($910) for a deposition. If a deposition is canceled less than eight days before the scheduled deposition date, the physician shall be paid a minimum of one hour ($455) for the scheduled deposition.
· Review of Sub Rosa Recordings: $325 per hour. The physician will be reimbursed at $325/hour, 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, for time spent reviewing sub rosa recordings. The physician must include in his or her report verification, under penalty of perjury, of time spent reviewing sub rosa recordings. The fee for reviewing sub rosa recordings is allowed in addition to any fee for any single report written by the physician. If the sub rosa is provided to the physician prior to the issuance of a pending report related to a medical-legal evaluation, the QME/AME may not also bill a supplemental report fee in connection with the review of the sub rosa material.
INCREASES FOR INTERPRETERS AND SPECIFIED PHYSICIANS
The medical-legal fee schedule contains several modifiers resulting in increases related to interpreters and the type/specialty of the physician performing the evaluation.
Interpreter: If an interpreter is needed at time of examination, or other circumstances that impair communication between the QME and the injured worker, the fee for such medical-legal is increased by 10 percent.
Agreed Medical Evaluator: For evaluations performed by an agreed medical evaluator (AME), the fee is increased by 35 percent. If an interpreter is needed for an evaluation performed by an AME, the fee is increased by 45 percent not base fee * 35% and then * 10% rather single multiplier of 45%.
Psychiatrist or Psychologist: When a psychiatric or psychological evaluation is the primary focus of the medical-legal evaluation, the fee for services is increased by 100 percent, in other words the fee is doubled. If an interpreter is needed for an evaluation, the value is increased by 110 percent. If the psychiatrist or psychologist is acting as AME, the fee is increased by 135 percent. If an interpreter is needed for an evaluation and the evaluator is acting as an AME, the fee is increased by 145 percent.
Toxicologist: When toxicology is the primary focus of the medical-legal examination, a physician who is certified as a QME in the specialty of internal medicine or a physician who is board certified in internal medicine, the value of services is increased by 50 percent. If an interpreter is needed for an evaluation, the value is increased by 60 percent. If the evaluator is also an AME, the value is increased by 85 percent. If an interpreter is needed for an evaluation and the evaluator is an AME, the value is increased by 95 percent.
Oncologist: When an oncology evaluation is the primary focus of the medical-legal evaluation, a physician who is certified as a QME in the specialty of internal medicine will increase the fee for services by 50 percent. If an interpreter is needed for an evaluation, it will increase the fee by 60 percent. If the evaluator is also an AME, the fee is increased by 85 percent. If an interpreter is needed for an evaluation and the evaluator is an AME, the fee is increased by 95 percent.
Evaluations Ordered by the Court: (IME) If the courts orders a medical-legal evaluation the administrative law judge has the authority to apply the appropriate modifier applicable to that specific medical-legal evaluation for billing purposes.
RECOMMENDED QME DECLARATIONS
The new regulations require physicians to include a verification in their report to be made under penalty of perjury. It must include the total number of pages reviewed as part of the medical-legal evaluation and in preparation of the report.
The parties must also issue declarations prior to sending records to a physician for review. CCR 9793(n) requires a party to attach a declaration under penalty of perjury to any document sent to a physician for review declaring that it has complied with the provisions of Labor Code § 4062.3 before providing the documents to the physician. The declaration must contain a statement of the total page count of the documents provided.
The QME may not bill for review of documents that are not provided with the aforementioned declaration from the providing party. Any documents sent to the physician without the CCR 9793 declaration and attestation must not be considered by the physician for purposes of any regulatory or statutory duty regarding report writing.
Have questions? Please reach out!