The DWC has amended the fee schedule for medical-legal services. The proposed regulations have been submitted and are slated to become effective April 1, 2021. This fee schedule will be applicable to all medical-legal evaluations and reports occurring on or after April 1, 2021, medical-legal testimony taken on or after April 1, 2021 and supplemental reports requested on or after April 1, 2021.
According to the DWC, the majority of the changes were made because the previous hourly billing system implemented in June 2006 was susceptible to abuse. With these changes, defendants can now accurately predict the costs based on the type of report requested along with the volume of records sent to the physician for review. In turn, defendants should now be more careful in determining what records to send - sending only records that are relevant and really need to be reviewed by the evaluator in order for them to provide a complete opinion. Disputes about this remain within the jurisdiction of the WCAB, but fee schedule disputes would be subject to the Independent Bill Review process.
Verification Required from Defense and Evaluator
Evaluators will be required to sign a declaration -provided by the Defendant - attesting to how many pages of records were reviewed as part of the medical-legal evaluation and preparation of the report.
It should be noted that a treating physician can provide a "comprehensive med-legal evaluation", but the fee schedule proposed in 8 CCR 9795 does not apply to all reports from treating or consulting physicians. 8 CCR 9795(a) makes it clear that treating or consulting physicians can get the higher rates within the med-legal fee schedule for "comprehensive, follow-up, or supplemental med-legal evaluations, regardless of whether liability was accepted at the time the treatment was provided or the report was prepared." Thus, standard reports from treating and consulting physicians such as those identified in 8 CCR 9785 remain subject to the Official Medical Fee Schedule adopted pursuant to Labor Code Section 5307.1
Missed Appointments & Review of Sub Rosa Recordings
The first 200 pages reviewed are included in the initial cost, and review of records in excess of 200 pages shall be reimbursed at the rate of $3.00 per page.
Employers are expressly permitted to seek a credit if the missed appointment is due to the injured worker's fault. Missed appointments are defined broadly and include instances where the injured worker does not show up for the evaluation, the interpreter does not show up for the evaluation which makes it impossible to go forward with the exam, the injured worker leaves the evaluation before the completion of the evaluation, the injured worker is more than 30 minutes late for the appointment and the QME is unable to continue with the scheduled QME appointment, or in the case where the appointment has been canceled within six business days of the scheduled appointment date.
There are some exceptions that might save defense money when a medical-legal evaluator issues record reviews associated with medical-legal supplemental / follow-up evaluations when they a) already had the materials or b) the supplemental is needed to have the doctor address issues they were previously asked to address.
Additional amendments in the draft Regulations pertain to identifying specific fees for reviewing sub rosa, increased deposition fees, and new value modifiers based on whether an interpreter was needed and the type/specialty of physician performing the evaluation.
These revised California Code of Regulations Title 8- Sections 9793, 9794 and 9795 can all be found on the DWC website: https://www.dir.ca.gov/dwc/DWCPropRegs/2020/Medical-Legal-Fee-Schedule/Med-Legal-Fee-Schedule.htm
There were non-substantial amendments made to the regulations, including, but not limited to the following: 1.) Clarification of the Physician’s obligation when records are received without an attestation. 2.) Clarification on billing for records previously reviewed under ML202. 3.) Deletion of the billing code ML206 related to the unreimbursed supplemental report. 4.) Addition of the ability of physicians who are certified as Qualified Medical Evaluators in the specialty of Internal Medicine or who are board certified in Internal Medicine to use modifiers 97 & 98 for toxicology and oncology evaluations