WATERED DOWN

California’s Division of Workers’ Compensation has now adopted a final version of Medical Provider Network (MPN) regulations.

Worker protections have been watered down.

These regulations are a shadow of what they should be.

These regs, required by changes in the law under SB 863, went through multiple revisions. After a 3rd 15 day comment period, the DWC submitted a final version, which was quickly approved by the California Office of Administrative Law in August 2014. The final version (see link at the end of this post) went into effect August 27, 2014.

Most workers who did not predesignate a workers’ comp treating doctor before a work injury will be required to treat with an MPN physician. MPN participation by employers and insurers has increased so that most California workers are now required to get treatment from network doctors.

A consistent refrain from injured workers and worker attorneys has been that many network lists were jam packed with doctors who would not take workers comp or who were unavailable. Workers and attorneys have described much frustration and delay while trying to identify treating doctors within the networks, particularly in some types of specialty care.

Some of these doctors contracted with an entity which then sold or leased out to a new network at contracted reimbursement rates. Some MPNs were created by importing provider lists from group health care contracts. Many workers complain of receiving page after page of so-called MPN doctors who in fact would not touch a workers’ comp case with a 10 foot pole.

Those problems were highlighted in the DWC “listening tour” undertaken in the early days of the Brown Administration.

Reg Section 9767.5.1 does require “physician acknowledgements”, but it remains to be seen whether over time the non-treating doctors will actually be pulled off the lists if the acknowledgments turn out to be a sham or whether the MPN will be disciplined under Reg Section 9767.14 and section 9767.19 which provides for administrative penalties.

One of the carrots provided to labor union negotiators at the table in the SB 863 “grand bargain” was that MPNs would be required to have “medical access assistants” to help injured employees find an available physician within the MPN. Labor Code 4616(a)(3) was written to require that physicians be included in the MPN only if they had provided a written acknowledgement.

The final MPN regs have diluted these requirements.

As drafted, the MPN regs allow a physician to be listed on the MPN list even though the physician is not taking new workers’ comp patients.

It appears that the regs do not require that the MPN roster be kept current.

Setting up such a system would not have been unduly burdensome. For example, my group health plan has a website which indicates which providers are currently accepting new patients. This can be done, but the DWC chooses to use a lesser requirement.

In comments on the regs, the California Applicants’ Attorneys Association proposed the following language:

“Affirm that the roster of all treating physicians in the MPN shall only include physicians who are currently taking new workers’ compensation patients, and if the physician’s status changes, the roster be updated quarterly to indicate a physician is not currently taking new workers’ compensation patients”.

This suggestion was not adopted.

Instead, the final regs require that the MPN plan shall

“Affirm that each MPN physician or medical group in the network has agreed to treat workers under the MPN and that the written acknowledgements are in accordance wight he requirements under “Physician Acknowledgements” section 9767.5.1, and are available for review by the Administrative Director upon request;”

The problem here is that even if physicians sign a form agreeing to treat workers’ comp as part of the paperwork to participate in a health plan panel, this does not mean that in practice they are actively taking comp cases.

The adopted language has no teeth.

What are other notable problems with the regs?

The newly adopted MPN regs allow claims adjusters to perform a dual function as “medical access assistants” (see Section 9767.5 (h)(2)). Thus, the same person who is adjusting a claim may be the person charged with helping the worker find a doctor. Gone is the appearance of neutrality in requiring a dedicated medical access assistant who is not involved in the decision making on the claim.

Workers who consult with the “access assistant” may in some instances already be in an adversarial relationship with the adjuster. Hopefully most claims can be adjusted fairly and in a non-adversarial manner, but in the real world that is often not the case.

It will be scant consolation to the injured worker that the MPN medical access assistant contacts must be “separately and accurately logged”.

Wearing two hats, the adjuster/medical access assistant may engender a number of ethical problems. If the claim is adversarial, must the adjuster drop the adversarial role and adopt a neutral role as the helpful assistant?

Further, if there is a represented worker, can the applicant attorney call the “Medical Access Assistant” and end up talking to the adjuster about the case even though the adjuster is represented by defense counsel?

If the dual-role “Medical Access Assistant” identifies a treating physician for the worker, must the medical access assistant hat go off and the adjuster hat go the the fax machine and fax a written authorization to the recommended treater? Section 9767.5(h) says that “The assistance shall include but not be limited to contacting provider offices during regular business hours and scheduling medical appointments for covered employees”.

In comments to the DWC, CAAA noted that:

“The benefit gained from the introduction of the medical access assistants will be severely limited if they merely assist in making an appointment and do not facilitate the delivery of written authorization for treatment. If medical access assistants are to successfully assist employees, we believe the regulation must specifically state that one of the required duties of these assistants is to help facilitate delivery from the claim adjuster of written authorization for a scheduled office visit.”

This is a good point, as most physicians (even MPN ones) will not schedule an appointment to see the worker without an express written authorization. The regs seems to avoid specifying how this is to be handled in the context where an access assistant or a “dual hat” is involved.

It is interesting to note, however, that Section 9767.16 provides a mechanism for complaints by “any person contending a Medical Provider Network is in violation of the requirements of this article or Labor Code Sections 4616 through 4617.7…”

After this frontline complaint procedure, a complainant may file a written complaint with the DWC on the new form set forth in Section 9767.16.5.

Also added is a procedure for petitioning for suspension or revocation of a MPN (see Section 9767.17 and 9767.17.5)

Penalties can be assessed under Section 9767.19.

How well all of this works may depend on whether injured workers and attorneys use the complaint procedure to bring access problems to the DWC’s attention.

Ultimately the workers’ interest and the employer’s interest should be the same: appropriate treatment to get the worker back to work if possible.

Unfortunately the regs don’t make finding an MPN treater as easy as it could be.

The regs deserve a “D” grade.

Here is a link to the final MPN regulations:

http://www.dir.ca.gov/DWC/DWCPropRegs/IMR/IMR_Regs.htm

Stay tuned.

Julius Young