The California Division of Workers Compensation’s latest proposal to amend the QME fee schedule needs work.
If the DWC does not revise the proposal unveiled in June 2020 for public forum comments, the QME system, injured workers and payors will be adversely affected.
As I finished this blog post, there were hundreds of pages of comments on the forum (see link below) with the ratio of opponents to proponents probably 10-1 among those posted to the forum as of July 7.
What is at issue, why is this important, and why such opposition?
California QMEs, who evaluate injured workers to make determinations on injury and disability causation and disability assessments, have not had a fee adjustment since 2006.
Over time the pool of QMEs has shrunk. In many QME specialties there are insufficient numbers of evaluators. There has been increasing concern about report quality, but round after round of workers’ comp reforms and developments in the law have resulted in increasing complexity of the factual and legal issues in many of the cases. QMEs are being asked to do more analysis and documentation.
Think about it. Case law requires attention to the “how and why” of medical opinions in order to satisfy the substantial evidence standard. Cases such as Rolda (psyche injury causation), Escobedo, Gatten, Benson , Rice/City of Jackson (apportionment), Almaraz and Guzman (rating PD), Hikida (compensable consequence and PD issues), Dahl (amenability to rehabilitation) and many others involve intermingled complex factual and legal issues.
The system will not have quality reports unless the doctors who evaluate are adequately paid. You get what you pay for.
How often have I heard defendants whine about shoddy reports from QMEs that lack attention to detail, explanations for conclusions, and in-depth analysis!
Yet, they appear to largely be on board with this fee schedule which will encourage such reporting.
While some may argue that there has been a problem with QME billing (undoubtedly true in some cases) causing a need for aggressive oversight, many QMEs have complained in recent years of what appeared to be a campaign to harass examiners. QME unhappiness and the aging of QMEs has led to continuing dwindling of the QME pool.
How much does the current QME system cost? According to a recent WCIRB report in calendar year 2018 the costs were $280 million and 2019 were $290 million. In 2019 Med-Legal costs were 11% of total medical services and 6.3% or total paid medical.
Many of these issues came to a head when the California State Auditor prepared a scathing 2019 audit report critical of the DWC’s administration of the QME program (see link below).
Meanwhile, for several years the DWC was looking at adopting an alternative scheme to compensate QMEs. This included a 2018 DWC forum, various 2018 and 2019 stakeholder meetings, and an August 2019 proposed fee schedule amendment which went nowhere after a massive outpouring of opposition. Yet more stakeholder meetings were held in late 2019.
Representatives of many of the California stakeholders (including employers, insurers, individual doctors, physician groups and attorneys) attended an early January 2020 meeting, and some felt there was progress towards agreement on a new fee schedule. Alternatives were discussed and some points of agreement noted on a blackboard. However, there was no formal agreement drafted although some bullet points were circulated. A follow-up meeting (which I attended) in late January 2020 resulted in consensus on some issues, but there was notable dissent on several issues, and the meeting stopped short of dealing with other thorny issues. There was no post-meeting statement of agreement circulated.
I realize that some physicians are under the impression there was “an agreement”, but that may be a bit naive.
It’s unclear exactly what maneuvering has occurred since the January 2020 meetings, but it seems that payors grabbed the DWC’s ear. Thus, DWC unveiled their proposal for forum comments (see link below to the June 2020 DWC proposal).
The DWC proposal provides for a flat fee system for evaluations and reports and reimbursements for medical record reviews based on page count of records reviewed. A complexity multipier modifier is dropped, although cases with interpreters, AME evaluations, and some medical specialties receive slightly higher multipliers than the basic evaluation rate.
If adopted in the form as unveiled in June 2020, there would be QME winners and losers. Winners would be QMEs evaluating relatively uncomplicated cases such as uncomplicated orthopedic cases without a large volume of records. Losers would be QMEs evaluating complicated injuries with a large volume of medical records, difficult apportionment issues, involved body parts, vocational feasibility issues, etc etc. Losers would also be psychiatric and psychology QMEs and internal medicine QMEs who have large volumes of records to review and complicated histories to sort through.
As set forth for forum comment, the proposal includes a number of goofy ideas:
•the rate for reviewing medical records past a 2,000 page count is reduced from $3.00 per page to $2.00 per page, which seems to assume that reviewing gargantuan stacks of records is less demanding
•the regs define a ML 202 as a followup if occurring up to 24 months past an initial evaluation. Currently it is defined as 9 months. Given how quickly medical situations of workers can change, 24 months is a poor timeframe choice . The lower payments will discourage adequate re-evaluation of emerging and changing worker conditions and disabilities.
•the QME is charged with counting the number of pages submitted by the parties, adding another burden that should be placed on the party submitting the records for review
•a provision for a “remedial supplemental evaluation” category provides QMEs insufficient assurance they will be paid and provides too much opportunity for manipulation by payors. The provision seems to allow a payor to refuse to pay for a supplemental report where it contends that the issue was or should have been addressed. In the real world, parties often seek supplemental reports as they seek to work with the facts and the complexities of the case law. Moreover, in the real world, QMEs often receive incomplete information and records and other data are sent piecemeal for the QME to analyze. This section alone, which lacks sufficient guardrails, would be enough to reject the current proposal.
Other problems with the proposal include the following:
•despite the recommendation of the State Auditor, there is no provision for a COLA for QME payments
•the fee multiplier is too low to compensate psyche examiners, internal medicine examiners and some of the other specifies who are asked to evaluate many of the most complicated cases
•the proposal seems to do nothing to increase report quality
•the proposal does nothing that will attract physicians to become QMEs; quite the opposite, a number of commenters noted that they may surrender their QME license if the proposal is adopted. It is as if the State Auditor report was ignored.
While there are some bright spots in the proposal (for example, a schedule for compensating for missed appointments, a multiplier where interpreters are involved, a payment schedule where physicians review sub rosa videos, a a schedule for deposition time compensation), those are insufficient reason to adopt this proposal.
More stakeholders meetings should be held, as well as a live public forum on any tentative proposal.
Here is link to the forum comments page (which closes July 10):
https://www.dir.ca.gov/dwc/ForumDocs/2020/Med-Legal-Fee-Schedule/Index.htm
The DWC’s June 2020 proposal (not yet in formal rulemaking) is here:
QMEFeeScheduleProposal(June2020)
The analysis by the California Applicants Attorneys Association can be seen here:
QMEFeeSchedule(CAAA’sComments7.9.20)
Here is the link to the State Auditor report on problems with DIR/DWC administration of the QME process:
http://www.workerscompzone.com/wp-content/uploads/2019/11/QMEsStateAuditorReportNovember2019.pdf
Stay tuned.
Julius Young
510.835.8870