The California Division of Workers’ Compensation agreed to enforce medical-legal billing rules as they are written as part of a settlement with eight doctors who accused the agency of relying on underground regulations to deny their reappointment as qualified medical evaluators.
Although the division didn’t admit to using regulations that weren’t properly vetted by going through the rule-making process in the Administrative Procedures Act, it still agreed to several changes in how it will interpret the Medical-Legal Fee Schedule in the April 4 agreement.
The division will allow QMEs to cite medical causation as a complexity factor on accepted claims; allow them to bill for medical research within their area of expertise; and it will allow them to charge for time spent preparing reports when using the ML 104 billing code.
The division also agreed to remove any training materials, including videos that were based on the now-abandoned interpretation of the billing rules.
The DWC agreed to reappoint as QMEs the doctors who filed a pair of lawsuits with the Los Angeles County Superior Court last year. And the doctors agreed to reimburse carriers for any payments they received for unlisted special services, procedures or reports, under terms of the agreement.
The doctors will also be required to complete a course covering QME billing rules as part of the agreement.
Attorney Nicholas Roxborough, who represented the QMEs, said he was “reasonably confident” that he would have prevailed in both cases, but the settlement spares his clients and the DWC the time and expense of going to trial.
“I think the message was loud and clear: These were underground regulations,” he said on Thursday.
Los Angeles County Superior Court Judge James Chalfant in a February decision said the “DWC probably erred in relying on underground regulations” in denying requests for reappointment from Drs. Timothy Howard and Benjamin Simon.
QMEs must identify four complexity factors that take into account the issues a provider was asked to assess, and the amount of time required for the evaluation, when using the hourly ML 104 billing code.
For example, spending two or more hours of face-to-face time with the injured worker would count as one complexity factor. Addressing the issue of medical causation upon the written request of a party or parties also counts as a complexity factor.
Howard and Simon alleged in their February 2017 complaint that the division denied their applications because it said they cited medical causation as a complexity factor on uncontested cases, a requirement that is not included in the language of the fee schedule.
The complaint also accused the DWC of capitalizing on a drafting mistake to claim QMEs can’t bill for the time spent writing reports without having a written agreement that the case involves extraordinary circumstances.
Suzanne Honor-Vangerov, president of Honor System Consulting and the former manager of the DWC’s Medical Unit, said in a declaration filed in support of the providers that an error was added to the med-legal billing rules in 2008 that eliminated a line break and created confusion as to whether doctors are allowed to bill for writing reports when they meet the criteria for using the ML 104 code.
She said she pointed out the error, but it was never corrected and should be considered as another underground rule.
Simon in February petitioned the Workers' Compensation Appeals Board, requesting to be immediately reinstated and an order prohibiting the DWC from using the alleged underground rules. But the appeals board in a March decision said there are no statutes or regulations allowing it to hear challenges to a decision of the administrative director not to reappoint a QME.
Meanwhile, a subsequent complaint filed in December by Drs. Mahmoud Mohamed, Vatche Cabayan, John Lawrence, Julie Goalwin, Marry Ann Vigilanti and Marged Botros raised similar allegations of underground rule-making. And the doctors in February amended their complaint to allege that the division was using another invalid rule by claiming they were not allowed to bill for time spent on medical research if it was within their area of expertise.
Roxborough, a partner at Roxborough, Pomerance, Nye & Adreani in Woodland Hills, said some of his clients agreed to repay “a few dollars” for clerical services that the division says were improperly billed, but that’s not an admission of wrongdoing. He said the doctors agreed that it was more important to be reappointed as QMEs that it would be to “fight over a couple thousand dollars.”
He also characterized the settlement as an “enormous victory for the QMEs of California.” Though his firm was representing individual doctors who were denied reappointment, Roxborough said he “knew we spoke for the entire industry.”
He also said he was appreciative of the fact that Kim Card, acting chief counsel for the Department of Industrial Relations, was willing to negotiate a settlement rather than force the case to go to trial.
Gabor Vari, chief executive officer of California Medical Evaluators in Los Angeles, thanked the DWC and Card for pursuing a settlement that would benefit all QMEs in the state.
Vari said the QME system is at something of a “crossroads “ right now, with a recent report from the California Workers’ Compensation Institute finding that the number of QMEs dropped 20%, from 3,239 in 2012 to 2,579 as of September 2017. The division’s enforcement efforts posed a risk not only to the doctors working with his management company, but to other doctors serving as QMEs, Vari said.
“I think that the underground regulations, as they were being implemented, made it very difficult for doctors to justify a decision to continue in the QME system,” he said. “To the extent that the ability for doctors to bill ML 104 is unencumbered by any additional regulations that don’t exist in the letter of the law, I think that will be helpful to stabilize the system."
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