CANS Newsletter articles related to
Workers' Compensation
(each newsletter in its entirety can be found in
the section "newsletters")
January 2007 - CORRECTION:
In the DWC article in the December 2006 issue of the newsletter
(see paragraph below), E&M codes were incorrectly identified. The
increased codes are the 99201-99205 and 99211-99215 codes (not the
90201-90205 and 90211-90215 codes as reported.)
We regret the error.
December 2006
DWC Plans E&M Codes Increase—Surgery Fees
Changes Coming Later
The Division of Workers’ Compensation (DWC) has dropped the first
shoe and proposed increases for Evaluation and Management codes to take
effect as of
2/15/2007
. The increases were felt to
be necessary because present fees are less than Medicare rates (and they
didn’t suffer the 5% decrease in 2004 because of that) and because the
DWC feels the added burdens of dealing with the AMA Guides to impairment
and the Utilization Review police justify more money for the 90201-90205
and 90211-90215 codes. The
changes reflect about a 20% to 35% increase for the new patient
evaluation codes and roughly a 20% increase for the established patient
management codes except for the brief 90201 and 90211 codes which are
pretty much unchanged. These
increases will bring Comp E&M reimbursement up to a blended
California Medicare rate. Although
these changes are certainly welcome and overdue, the basic premise that
Medicare rates are adequate compensation for dealing with the Comp
patient is flawed. The ease
with which one can submit a bill and get promptly paid by Medicare pales
before the thrash involved with billing a Comp carrier and, after a
billing review attempt at downgrading, finally getting paid in a month
or two or three. The Comp
patient report requires facility in the use of Comp syntax not necessary
for Medicare patients and when the report involved does force one to use
the AMA guides or the ACOEM guides or argue with a
UR
reviewer located in
Ohio
, then Medicare rates for the reports are woefully inadequate.
The occupational medicine crowd, who makes a living using these
codes, will see a nice and warranted pay increase.
Those of us who do a specialist consultation and recommend
involved treatment including surgery will still be underpaid.
Hold your breath for the anticipated procedural fee schedule
changes due out later in 2007 wherein decreases are anticipated.
The second shoe dropping will likely be a clunker for
neurosurgeons.
November
2006 -
Utilization Review Fightback
For those of you who have to deal with seemingly endless
utilization reviews of proposed treatment of work comp patients now have
an avenue to register complaints. The
Division of Workers’ Compensation (DWC) now has a complaint form that
is available online at http://www.dir.ca.gov/dwc/forms.html.
Once to the site, do about a 2 page scroll down to find
the form. If you open the
Word version of the form, you can complete it using your computer and
E-mail it in as well as save it on your computer.
The DWC says they are committed to enforcing
UR
rules but need info to spark enforcement.
Apparently, treatment cannot be denied solely upon the grounds
that it is not blessed by the ACOEM guidelines.
Just how to deal with reviewers who selectively quote the
literature to support their personal or corporate bias against a
particular treatment remains an obstacle requiring a time consuming
appeal process. One wonders
if a reviewer’s compensation is partly based on how many denials are
generated. Where are those
investigative reporters when you need them?
October
2006 -
Work Comp Fee
Schedule
The California Division of Workers' Compensation (DWC) says it
will begin working in about two months on an update to the Official
Medical Fee Schedule that would tie physician's fees to Medicare's
Resource Based Relative Value System.
This has long been anticipated and we have hung some black crepe
on this in the past as RBRVS systems tend to downgrade surgeon’s fees.
The acting Administrative Director (AD) of the DWC, Carrie Nevans,
added a little kicker to the announcement when she indicated that
"It is not necessarily going to be a zero-sum game," which
could be interpreted as possibly maintaining the present surgery fee
schedule or at least dropping it less than a strict RBRVS system might
require. Nevans clearly
indicated that E&M payments should be increased but left some hope
that fees for specialists may not have to be cut in order to boost
payments to primary treating physicians.
Since the last fee adjustment was an across the board 5% decrease
in 2003, her statements could be construed as hope for a surgical fee
increase but that is probably wishful thinking.
It must be recalled that a real world RBRVS system is about relative
work values or RVUs plus a monetary conversion factor.
Nevans shouldn’t be able to manipulate the RVUs but she may be
able to select different conversion factors for E&M and surgical
codes which could bolster or hold surgical fees at the present level
while boosting evaluation and management fees.
Since this DWC project probably won’t start until early 2007,
any new fee schedule may be more than a year away.
Nevans also has indicated
the DWC has received 60 nominations of physicians for a committee that
will evaluate medical treatment guidelines. CANS has submitted the names
of two neurosurgeons for her to consider for the neurosurgical slot
presumed to exist on this committee.
We can only hope said committee will bring some present day light
to the ACOEM treatment guidelines which are narrow, now dated and
written with little surgical input.
Nevans has also said the DWC is revamping proposed
regulations that will impose penalties for abuses of the
utilization-review process. The new draft of the rules, to be released
before the end of the month, will include a new version of the PR-2 form
that physicians use to request treatment. Nevans said claims
administrators must now often decipher lengthy and sometimes unclear
narratives to find out what is being requested. The new form will have a
box to check and a space to fill out the exact procedure being asked
for. That may well help but
it is my opinion it will take solid penalties to deter some insurance
companies’ from employing UR hit men who engage in a selective and
frequently irrelevant literature review so as to deny, by the gross
amount of ink used, a pretty reasonably stated treatment request.
September
2006 -
Work Comp Meds
The Division of
Workers’ Compensation will as of
12/1/06
install lower limits on
what you can charge for drugs dispensed by your office to Comp patients.
This practice has been a real moneymaker for some practitioners.
The amendment to the regulation would close a loop hole created
from legislation passed in 2003. Currently, Labor Code section 5307.1
requires that reimbursement rates for medical services, except physician
fees, be in accordance with the relevant Medicare and Medi-Cal payment
systems. However, those systems do not allow drugs to be dispensed by
doctors in their offices. This exception allows doctors to be reimbursed
for drugs dispensed during office visits at much higher rates than those
paid to pharmacies for the same drugs, thereby creating a loophole in
the reimbursement structure. The DWC regulation closes that loophole.
August
2006
- WC Survey
The results of the survey compiled by the California Orthopaedic
Association (COA) to determine if there were access problems in the
Workers’ Comp system have been summarized by the COA and an extensive
report has been prepared. This report focuses on the availability of
medical treatment to injured workers throughout
California
following the 2004/2005 Work Comp reforms.
It is intended to assess whether injured workers’ access to
orthopaedic surgeons/neurosurgeons has been adversely impacted as a
result of the reforms. 244 surveys were completed (231 surveys from
orthopaedic surgeons and 14 surveys from neurosurgeons).
COA has concluded that the 2004/2005 Work Comp reforms have had an
impact on the number of injured workers treated by orthopaedic surgeons
and neurosurgeons. There is
a statewide trend of orthopaedic surgeons and neurosurgeons reducing the
number of injured workers they treat or dropping completely out of the
system as they become frustrated with the utilization review system,
reimbursement levels, or their inability to obtain authorization for
medical services that they believe are medically necessary for their
patients. If this
trend continues, it is expected that access to quality care
musculoskeletal care will continue to worsen, treatment will be delayed,
temporary disability benefits will unnecessarily increase, and optimal
recoveries will be jeopardized. There
could be a resurgence of Workers’ Compensation “mills” if these
problems are not corrected as the mainstream physicians will be driven
out of the system. COA
will present results of this survey to the Division of Worker’s
Compensation; contact the CANS office for a copy of the complete report.
July 2006- Work
Comp Treatment Guidelines
The Administrative Director (AD) of the
Division of Worker’s Compensation (DWC) has determined that the
American
College
of Occupational and Environmental Medicine (ACOEM) treatment guidelines
will continue to be used to determine appropriate treatment for injured
workers. She rejected other
guidelines, particularly those promulgated by orthopedic organizations.
There will be a committee created to evaluate additional
guidelines. The makeup of
that committee includes the usual suspects such as chiropractors and
acupuncturists along with an orthopedic surgeon but presently does not
include a neurosurgeon. CANS
has requested that a neurosurgeon be put on that committee which
hopefully will bring some increased surgical sense to the ACOEM
guidelines. These guidelines
are used by utilization review organizations and their physicians to
approve or deny treatment recommendations made by consulting surgeons. One
would hope that the guidelines for lumbar fusion published in the
Journal of Neurosurgery: Spine, in its June 2005 issue, (Volume 2, No.
6) might get a fair hearing.
June 2006 - The Doc
at risk—be careful out there.
The rather disturbing news that a disgruntled injured worker
shot and killed his comp attorney in his Santa Cruz office brings to
mind that we docs who make determinations about ultimate
impairment/disability (which equals money) have some exposure to this
kind of risk as well. I well
recall being threatened by a non-comp patient many years ago which
resulted in some bullet proof office glass and some handgun purchases.
The latter were never really needed but it was a time of some
anxiety and learning about calibers and hollow-points, subjects a bit
foreign to most of us. As we
lament the nature of the AMA Guidelines which now have to be used to
determine final impairment, it might not be unwise to make sure every
patient we rate is made aware that docs no longer have anything more
than very minor leeway in determining impairment—it is all a cookbook
by the chefs at AMA wherein even maximum pain frosting is limited to 3%.
By the way, I can’t quite get my mind around the involved pain
section in the AMA Guides so have no compunction about recommending an
additional consultation with a “pain specialist” if the parties
involved don’t want to accept my 3% pain recommendation based upon
clinical impression rather than jumping through the arcane hoops of the
Guides pain chapter.
May
2006 -
Work Comp Update
A number of issues surfaced this last month in the Workers’
Compensation arena.
We tend to report these issues with some frequency in this
newsletter because a considerable majority of CANS members treat Work
Comp patients and this treatment system at present pays about the best
in California but has the most potentially confusing array of rules and
regulations.
Although we have reported that you can’t be forced to care for Comp
patients at commercial insurance rates (which generally approximate
Medicare rates while the Comp fee schedule is about 200% of Medicare),
the recent sale of State Compensation Insurance Fund’s responsibility
of having a provider network to the Blue Cross Prudent Buyer provider
list apparently has been interpreted by Blue Cross as forcing their
Prudent Buyer providers to treat Comp patients and treat them at
commercial rates. The CMA
got Assemblywoman Fran Pavley to introduce AB 2585 that would allow docs
to opt out of the requirement or at least force the insurance company to
negotiate a separate contract for Comp care.
The insurance companies raised hell about this under the disguise
of being worried about patient access when of course their main goal is
regimentation and subordination of docs to the success of their business
model. The bill was pulled
because of numerous amendments by stakeholders and some concern about
the legality of the bill as it relates to contract law but Pavley plans
to insert the wording in a bill that has already passed the assembly, a
maneuver that purportedly buys more time for Pavley to craft wording
that satisfies the concerns of docs, labor and Blue Cross.
The mantra seems to be it is OK for docs to opt out so long as by
doing so they don’t impair an injured worker’s access to care or
cause the medical provider network/ Blue Cross to come afoul of MPN
regulations regarding breadth and width.
We wish the CMA and Assemblywoman Pavley good luck in getting our
rights reasonably established but I will hopefully be forgiven for
thinking we will come in third.
b. Utilization Review is another cross we docs have to bear when
treating injured workers and the California State Senate Labor and
Industrial Relations Committee held hearings recently wherein the CMA
and various docs lamented how the
UR
process delays and circumvents treatment felt to be appropriate by
specialists such as orthopedic surgeons and neurosurgeons.
The Division of Workers’ Compensation (DWC) promised to fine
carriers and employers who abuse the
UR
system. Some of the problem
is the occupational medicine practice guidelines which often don’t
readily apply to specialist treatment, particularly surgery.
Another issue appears to be what I will call the rogue reviewer
who imposes his/her biases on the treating physician.
I learned of a notable example recently where a CANS member was
denied authorization to do an anterior cervical discectomy and fusion to
treat a disc herniation with radiculopathy because the reviewer thought
a foraminotomy works as well while avoiding a fusion and should be
employed. This is not
UR
, it is philosophy. One
wonders if any DWC action will put these philosophers in their place.
c. A California WC judge has ruled that insurers are not required to pay
for interpreter services for an injured worker undergoing treatment.
The crux of the case was a $7K bill from a language service that
was present during a course of physical therapy.
I can accept the insurer’s beef about that but the judge also
felt his ruling applied to doctor/injured worker interactions as well.
The judge felt that the labor code does not provide for the
provision of interpreters and that plenty of docs are available to the
injured worker who speak the worker’s language so if the worker
chooses a treating physician who is not fluent in the worker’s
language, it is not the insurer’s responsibility to pay for
interpreters. I guess that
leaves us to bear this cost. I
am happy to know we have lots of
Spanish, Korean and Vietnamese speaking neurosurgeons and/or orthopedic
surgeons widely dispersed through
California
so that injured workers can just zip down the street to see a native
speaking consultant. I
don’t know much about the judge other than he needs glasses to correct
his myopia.
d. The DWC also noted that fewer doctors are taking the QME exam and
that the number of qualified QMEs is dwindling.
A proposed 25% increase in the Medical-Legal fee schedule due to
go into effect in July may help the problem.
Dumping the AMA Guides as the instrument one has to use for
determining permanent disability would help even more
March 2006 - CWCI
finds no Work Comp physician exodus—yet.
It is noted that the California Workers Compensation Institute
has released a study indicating there has been no exodus of providers to
care for injured workers. Duh!
They should have waited to conduct that study until after the new
Official Medical Fee Schedule (OMFS) is in place.
Since we expect a major reduction in what we are paid either due
to the cuts imposed by the Medical Provider Networks for allowing us the
privilege of treating these patients or by the OMFS itself, it will be
interesting to see how many of us will be willing to take care of the
injured worker once the pay scale approaches Medicare rates.
Their report that the sky isn’t falling may not appreciate some
real clouds gathering. Interestingly,
California regulators on
Tuesday, 3/28/06, announced minor changes to the medical equipment and
laboratory portion of the Official Medical Fee Schedule, but any major
changes to physician fees will likely wait until next year, so the
clouds are a bit further off.
February 2006
-
SCIF dumps its preferred providers; MPN now Blue Cross PPN
The State Compensation
Insurance Fund has deep sixed its own Preferred Provider Network (PPN)
and will, as of May 1st, force physicians presently in the
PPN, if they want to stay on board, to join its new Medical Provider
Network operated by Blue Cross of California.
Since SCIF writes 52% of the comp insurance in
California
, this is no minor shift in
provider affiliation. It
does not take a brain surgeon to figure out that Blue Cross will want to
take a cut from the Official Medical Fee Schedule (OMFS) which is what
SCIF will give to Blue Cross (and which is due to be reduced some time
this year to a rumored 120% of Medicare).
I would guess that Blue Cross is enamored of their present fee
schedule for general commercial patients which is some fraction of
Medicare rates and will try to impose those rates for allowing you to
care for SCIF’s insured workers, taking the difference between the
OMFS and what they pay you for their trouble.
This could be a first class morass for doctors.
We all know
that Medicare rates are not great (and we finally got a slight increase
this year instead of the satanic 4+% cut) but at least there is minimal
hassle in scheduling a free roaming Medicare patient (read no HMO) for
an operation. Pre-certification
is not necessary and your surgery proceeds apace in the best interests
of the patient. Even the
commercial patient, for whom you care at something less than Medicare
rates, has the advantage of probably being younger and with fewer
co-morbidities to complicate an operation.
Every work comp patient comes with a major co-morbidity—the
work comp rules and regulations. To
think we can navigate the work comp rules and paper swamp and make an
honest buck for less than Medicare rates is like thinking that your
stock broker works for nothing except your gratitude.
If you are
already a participant in the Blue Cross Preferred Provider Network, the
potential vehicle for the SCIF patients, then you should not be required
by the terms of your present contract to extend those PPN rates to work
comp patients. Rest assured
you will be asked to do so. I
suggest you use considerable caution because it may not pencil out on a
sound business basis. Look
at it this way—if your costs for providing care are “X” and you
just make a little profit on commercial patients for which you are paid
“X+Y”, the thrash of dealing with work comp rules, regulations and
adjusters in a “Mother, may I” scenario may well tip you into the
negative as your “X” rises to greater than “Y”.
Volume, the mantra of the “pay you less but you get more
because you do so much” crowd doesn’t work if each case is done at a
loss. Multiply a negative by
any number and you still get a negative.
If you are
not already a Blue Cross PPN participant, you will need to contact them
to try to get on the PPN list. If
work comp is not your big income source, maybe you should get a second
job rather than bed down with corporate medicine.
There is a
rumored state initiative circulating that would allow comp patients to
choose their own treating physicians.
Where do I sign?
December
2005 -
WORK COMP LEGAL FEE SCHEDULE: It’s
about time
The near final iteration of a new Work Comp medical-legal fee
schedule was recently circulated which includes an increase in fees for
those of us doing AME and QME reports.
The increase comes from using a $12.50 value for each RVU of
service, up from the present $10. The
RVUs assigned to each service don’t change.
This is a long overdue increase and well deserved considering the
involved rules now in place, particularly the requirement to use the AMA
Guides to calculate impairment. There
is still a comment period before the schedule is published in final form
and goes into effect. The
other fee shoe to drop will be the new medical treatment fee schedule
due out in January. A
decrease in fees is anticipated as has been previously discussed in this
newsletter. Look here for
more information next month.
November 2005 - Our
Friends the Insurers : Medical Provider Network List
The medical provider networks (MPNs) that are being cobbled together by
many Work Comp (WC) Insurers and self insured entities are not mandated
by law but once formed, they keep medical care of the injured worker
“in house” as it were. There
is some evidence that medical costs for insurers are lower using an MPN.
For those interested in joining an MPN for particular insurers or
other entities, a list of all approved MPNs can be found at DWC
MPN Web page: http://www.dir.ca.gov/dwc/MPN/DWC_MPN_Main.html.
One should exercise caution when signing a contract with one of
these MPN’s so as to have a good escape clause if the new Comp fee
schedule, due out in January, is onerous enough to make you want to quit
the WC game.
The
new fee schedule is likely to be onerous because it will be promulgated
by the Governor’s WC Administrative Director and it is the
Governor’s goal (and only real achievement so far) to reduce WC costs.
Injured workers have seen reductions in care and awards,
attorneys have taken a hit and non-MD providers have had their income
curtailed. To think that
surgeons won’t get their share of misery is unrealistic, particularly
since a recent assay of WC costs by
the California Workers' Compensation Institute showed that in the face of the new Comp law,
fees paid to surgeons and medical-legal evaluators
increased while other health-care specialists saw steep cuts.
The report said the average payment for a medical-legal
evaluation increased 43.6% from 2002 to 2004 while payments for surgical
procedures (aka spine surgery) increased 13.1%.
Average payments for every other physician-based medical service
declined. The average payment for anesthesiology procedures dropped
57.1%; special services 33.1%, pathology and laboratory services 31.8%,
medicine 25.7%, acupuncture 13.9%, chiropractic manipulation 11.4% and
physical therapy 7.9%. It
would appear we have a surgeon’s perfect storm brewing.
August 2005 - Medical
Legal Reports for Work Comp
Two newsworthy items here.
First, the Administrative Director (AD) of the Division of Industrial
Relations was considering some significant changes in the Official
Medical Legal Fee Schedule (OMLFS) which would have reduced payment for
those of you that do Agreed Medical Evaluations and Qualified Medical
Evaluations. I have it on
some authority (Phil Lippe, CANS Work Comp guru) that she was persuaded
to drop the payment reduction provisions but left intact some slight
increases. I wish I could
report that CANS played a role in this but it appears the ball was
carried by the California Medical Association without the help of our
lobbyist. Oh well, it’s
the outcome that counts.
Second, for those of you hoping to apply the old State
of California Schedule for Permanent Disabilities, 1997 edition to those
Comp cases well established prior to the new rules requiring the use of
the AMA Guides that went into effect in April of 2004, a recent Appeals
Court decision suggests that if the comp case was not closed prior to
April, 2004, all disability ratings will have to employ the AMA Guides.
The court noted that all pending workers' compensation cases are
subject to the provisions of SB 899 (which includes the AMA Guides
provision) regardless of the date of injury. Based on an analysis of
legislative intent by the seventh division of the Second District Court
of Appeal, the court concluded that injuries occurring before the
effective date of the amendments are subject to SB 899 if no final
judgment has been entered in the case.
July
2005
1. Work Comp insurers use
existing panels for MPN’s
It would appear that most Work Comp insurers have not had the
time or inclination to create a real Medical Provider Network as
required by present Comp law. Most
of them have basically purchased physician PPO networks already in
place. As an example, I am
informed that SCIF has an arrangement with Blue Cross of California's
PPO to be their MPN that satisfies the law.
Calling the BC PPO a Work Comp MPN stretches the imagination and
in my mind certainly doesn’t meet the legislative goals of having a
select stable of Comp savvy docs available for the benefit of the
injured worker. Be that as
it may, being a provider in any commercial PPO does not obligate any
CANS member to see these patients and deal with their unique
requirements and the rather substantial paperwork load they generate.
For those of you who are interested in caring for these injured
workers, you should contact all the PPOs in which you participate and
request a WC addendum to your present PPO contract.
You can expect said addendum to discount the Comp OMFS by 15% for
the “privilege” of seeing these patients.
If I were signing such an addendum, I would limit its duration to
1/1/06
because if the new OMFS due out then is some low multiple of Medicare
RBRVS, you could, due to the 15% discount, be contracted to see these
patients for Medicare rates or less.
Speaking of the new OMFS due
1/1/06
, our lobbyist is part of a coordinated effort to influence the Comp
Administrative Director, Andrea Hoch, who will be promulgating the new
fee schedule. Said AD Hoch
is also on the short list for featured speaker at the next CANS meeting
in
San Diego
in early 2006. That would at
the very least be a very, very interesting encounter.
2.
Supreme Court won’t
toss new
WC
rules
The California Supreme Court refused to hear a lawsuit filed
by the California Applicant’s Attorneys Association challenging the
new Comp rules in effect since April 2004.
This means we docs will have to continue to abide by the
provision that requires us to determine impairment using the AMA guides.
I continue to recommend purchase of the guides from the AMA by
those who have to rate injured workers and taking a course on their use
is still a good idea (we may have such an instructional course focusing
on neurosurgical needs at the 2006 CANS meeting).
The AMA has a number of related publications to help understand
and use the guides but the one involving example case studies has little
in it of use to those primarily rating spine and nervous system
problems. The “Master the
AMA Guides” is useful and the guide to range of motion assessment
doesn’t add much to the instructions included in the AMA Guides
itself.
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