Judges and attorneys know it as a frequent scenario.

An injured worker, frustrated with the delays and treatment denials in the system, simply wishes to cash out their case. As part of a buyout they usually take a negotiated amount of money in exchange for releasing the insurer from liability for future medical treatment.

Perhaps the worker has other coverage that can be relied upon to fund treatment.

But maybe not.

Workers who have employer sponsored group health coverage or private coverage administered by companies such as Blue Cross or Blue Shield may find that their treatment is denied under the terms of the policy if the policy excludes payment for workers' comp related conditions.

What about workers who have no insurance or whose insurance will not cover workers' comp? Once they settle their cases, how do they fare?

Some of those workers may be eligible for Medicare, so they are expected under Medicare's rules to "protect Medicare's interest" by using an allocated portion of their settlement (a Medicare Set Aside) to cover medical costs before Medicare will willingly kick in.

Others will use their group or individual medical insurance anyway, despite exclusionary language, hoping that their usage of treatment resources caused by a work injury is not flagged by the insurer. Some will seek treatment at the VA or public clinics or county hospitals. Some may receive "charity care".

If there is any research on how workers who settle cases access treatment resources, I'm not aware of such studies.

Perhaps the Affordable Care Act/Obamacare will affect all of this. But for now it's not clear how many injured workers end up having to pay for treatment "out of pocket" after cases are settled.

But I'm sure there are some who do.

I was thinking about those workers as I noted that the Centers for Medicare and Medicaid Services has now released a study of hospital pricing. The study documents hospital-specific charge data on the 100 most frequently billed discharges from 3,000 U.S. hospitals (a link to the study is noted below).

The study documents that there is a huge range of billed charges from hospitals for the same procedure.

Insurers may get discounts. But if you are an uninsured injured worker without insurance, you may be charged the "rack rate" just as you would be if you walked up to a hotel and booked a room without a discounted reservation.

For example, a joint replacement may on average be billed at $83,538 at California Pacific Medical Center in San Francisco and $110,305 at St. Francis Memorial in San Francisco, just a couple of miles across the city. The same procedure at a local Kaiser was on average billed at less than half the cost.

Where injured workers have settled their cases and later found themselves without coverage, have they done comparison shopping?

Perhaps. I have personally represented several workers who settled their cases and used the funds to seek medical treatment in India or Thailand at a lower cost. Undoubtedly some immigrant workers from Mexico return there to get treatment.

But for workers who need to treat in the USA, obtaining such data has been hard until now.

For those workers who have settled their cases and are without other viable coverage, the CMS data may be helpful in choosing where to have elective treatments performed.

Here is a link to the CMS site where data can be obtained on charging practices of specific hospitals (the site has a search function to search for the hospital of your choice)
https://data.cms.gov/Medicare/Inpatient-Prospective-Payment-System-IPPS-Provider/97k6-zzx3

Here is another link to the CMS study:
http://www.cms.gov/Research-Statistics- ... index.html

Here is a link to a New York Times analysis of the study:
http://www.nytimes.com/2013/05/08/busin ... shows.html

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com that

Since late 2012, California's Division of Workers' Compensation has been engaged in a frenzy of rule making, mandated by SB 863.

Although we now have Emergency Regulations dealing with Independent Medical Review, those regs are only temporary. The DWC has scheduled a hearing on those regs for April 4, 2013 at the auditorium at the Elihu Harris State Building in Oakland at 1515 Clay Street.

That's the last chance for the public and stakeholders to voice their input and concerns. Meanwhile the DWC is taking feedback on the IMR regs, which can be directed to dwcrules@hq.dir.ca.gov

Grumbling about the new IMR system may be in fashion and may be deserved, but the proponents of IMR won and its opponents lost. IMR will either work or it won't work. An argument can be made on both sides of the equation.

Perhaps there will eventually be a definitive answer to its constitutionality after that is challenged. But an answer to that could be years away.

So what is key at the moment is making sure it works as well and as fairly as it can. That's where the regs come in.

Last week I served on a panel discussing utilization review and IMR at the Montarbo Seminar. The conclave is organized by Richard Montarbo, a well known workers' comp defense attorney out of Red Bluff. The 2013 session is available online:
http://montarbolaw.com/education.htm

Speaking along with Joe Montgomery, a partner at Hanna and Brophy's Redding office, the focus of my presentation was on the changes to utilization review and the new IMR system. One thing I enjoy about doing these trainings is that it really gives me an incentive to study the topic intensely, "getting into the weeds" of the details.

So after looking at the current regs, what are some of the top concerns about UR and IMR that could be addressed by changes that could be adopted for permanent regs? Here is my personal list:

-clarify that although every employer/carrier must have utilization review plan in place, adjusters can choose to voluntarily authorize care without
incurring a formal UR expense

-prohibit use of UR by companies owned by the carrier

-provide more clarification on what documents the employer/carrier must send to the UR doctor. Currently there are too many situations where the UR reviewer has not been provided the contextual medical records or enough treating physician reports to allow the UR reviewer to understand the worker's situation and the treatment rationale. If the IMR reviewer will be looking at 1 year's worth of medical records, why not require the UR reviewer to look at 6 months' records, for example?

-simplify the information on the IMR request form. Adjusters will be forced to fill out this form and send it to the worker along with the UR denial so that the worker can sign and send in the appeal to IMR. But the form requires information that may be hard to obtain, such as the WCIS number.
Since IMR will apply to all dates of injury after 7/1/13, claims examiners will be filling in forms for injuries that go back many, many years. At the Montarbo seminar when the WCIS number requirement was pointed out to a room filled with claims examiners, there were many blank stares.

-clarify the release of records box on the IMR form. Is this HIPPA compliant? If an appeal is signed by the attorney or doctor for the worker, can the attorney or doctor simply attach to the IMR request form a HIPPA compliant release signed by the worker? In what other manner might this be handled?
Shall the attorney or doctor copy the form and attach to the IMR request form another copy of the IMR request form with the release signed by the worker?

-give the DWC a screening deadline. If the DWC can not screen the IMR request within the time of the deadline, the request should be transmuted to Maximus as though it had been screened. The concern here is that the delays that have plagued the assignment of panel QMEs, where backlogs have frequently exceeded 3 months or more, not be replicated with the IMR process.

-clarify that if the DWC does not screen and transmit the IMR request to Maximus within a reasonable time that the WCAB has the jurisdiction to order them to do so

-clarify what happens if Maximus does not act on the IMR request within 30 days. Maximus should be required to apply for an extension and should be required to explain to the DWC and the parties the reason why an extension is needed. The DWC should screen these requests and provide a limited extension with firm deadlines. Again, if Maximus does not act within those time frames the treatment should be deemed approved.

-clarify the remedy where a carrier fails to provide to Maximus a year of medical records or other relevant documents that are under its control.
Failure of a carrier to do so could constitute fraud if the carrier willfully withheld records. Moreover, failure to do so could clearly obscure a plainly known matter of fact. One way or another, carrier failure to provide records is likely to constitute common grounds for appeals to the WCAB from IMR denials.

-clarify whether Maximus will be reviewing sub rosa videos, advocacy letters from the parties, or other "non-medical items"; if so, clarify the way those will be handled.

These are but a few of the concerns that we discussed at the Montarbo seminar.

Readers are encouraged to look at the current regs and submit their comments before the April 4 hearings.

The current version of the Emergency Regs can be found here:
http://www.dir.ca.gov/dwc/DWCPropRegs/IMR/IMR_Regs.htm

Stay tuned.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

If there was any doubt about Medical Provider Networks (MPNs) being the dominant trend in California workers' comp medical treatment, a recent California Workers Compensation Institute study will convince even the most hardened skeptic.

Consider these figures.

In 2002 MPN treatment was 32% of first-year treatment visits. That rose to 62% in 2005, 63% in 2006, 73% in 2008 and 75% in 2011.

In 2004 54% of surgery was in MPNs. By 2010 it had risen to 76% of surgeries.

For physical therapy, in 2004 41% was in MPNs. By 2010 that figure rose to 70%.

Indeed, the study claims that of workers' comp medical care "overall", the % of physician based services rose from 51% in 2004 to 80% in 2010.

Those figures will rise even more in coming years as changes made under SB 863 make it less appealing for doctors to attempt to treat on a lien and as it becomes more difficult for attorneys to attempt to "escape the MPN" as a routine matter in their cases.

As the CWCI study notes, these changes were made by SB 863 that will promote MPN use:

• Eliminating employer liability for the cost or consequences of out-of-network treatment if it is determined that the employee is not entitled to treat outside of the MPN;
• Precluding the use of self-procured medical reports outside the MPN as the sole basis of an award for compensation, but requiring that issues raised in such reports be addressed by either the primary treating physician or a qualified medical evaluator;
• Requiring that an employer with an MPN be granted an expedited hearing within 14 days if an employee seeks out-of-network treatment; and
• Disallowing failure to provide adequate notice of an MPN as a sufficient basis for an injured worker to seek treatment outside of the network unless it is proved that the failure resulted in a “denial of care.”

And as CWCI study authors Alex Swedlow and Bob Young note:

"At the same time, SB 863 contained other provisions intended to make MPNs more user friendly, ac- countable, and efficient, including:
• Mandating that MPNs provide “medical access assistants” to help injured workers get treatment and schedule appointments;
• Streamlining standards governing medical access, deleting a percentage of network providers who primarily treat non-occupational injuries, and setting new timeframes and standards for MPN approvals and reapprovals;
• Establishing written acknowledgment requirements for contracting network providers other than those in a medical group that elects to be in the network;
• Requiring online updates of MPN physician rosters at least quarterly;
• Mandating continuous reviews of MPN quality of care, personnel performance, service and
facility utilization, and costs; and
• Granting state regulators the right to investigate complaints or randomly investigate MPNs; and to order penalties, probation, suspension, or revocation of an MPN’s approval for failure to meet state requirements."

Whatever one thinks of MPNs, they are here to stay.

That's not to say that there will not be problems in the future. One problem on the horizon is that the SB 863 changes will make it even more apparent that many MPNs are filled with doctors who refuse to actually see workers' comp patients. Medical access assistants may well end up documenting that workers often can not find specialists on the MPNs who will treat.

Dermatology, urology, gastroenterology, psychiatry, pulmonary medicine and ophthalmology are just a few of the specialties which are difficult to access under most MPNs.

Could some of the MPNs literally fall apart if it becomes apparent that they are not really providing treatment in a range of specialties?

We'll see.

Meanwhile, the CWCI study makes for interesting reading:
http://www.cwci.org/research.html

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

The California Workers' Compensation Institute has announced a new study on physician dispensed repackaged drugs.

Authored by Alex Swedlow, Laura Gardner and John Ireland, the February 2013 CWCI study is titled "Differences in Outcomes for Injured Workers Receiving Physician-Dispensed Repackaged Drugs in the California Workers' Compensation System".

As the authors state in a preface to their report, physician dispensing has become commonplace in workers' comp. They note that "Claims of improved access to prescription services and improved compliance with pharmacy prescriptions leading to improved medical and disability outcomes are often challenged by suspicions that an alternative motivating factor driving physician dispensing is financial benefit."

Several studies have documented that over half of all California workers' comp prescriptions are physician-dispensed.

The CWCI study focuses on the relationship between physician-dispensed repackaged drugs and overall outcomes for workers, defined as average medical and indemnity benefit payments and total paid days of temporary disability.

Skeptics may question the methodology of the study and some may discount the study as one financed by the California workers' comp industry.

But Swedlow and his fellow researchers have credibility among DWC policymakers and prominent workers' comp stakeholders, so the study will be given attention.

Comparing cases with physician-dispensed repackaged drugs with cases without such dispensing, the study breaks down results for the following categories:
-average paid medical benefits per claim
-average paid indemnity benefits per claim
-average paid temporary disability days per claim
-incremental medical benefit cost per physician-dispensed drugs

For example, they find that after 2007, indemnity payments on claims with physician-dispensed repackaged drugs averaged 28.2% more than for cases with no physician-dispensed repackaged drugs. Claims with repackaged drugs were said to involve 8.9% more days of TD than claims without repackaged drugs.

Physician economic incentives to dispense repackaged drugs were lowered by 2007 revisions to the pharmacy fee schedule which the authors note
"largely eliminated differential pricing".

The significance of the CWCI study is in its assertion of findings "that associate physician dispensing of repackaged drugs with higher medical and indemnity costs and delayed return-to-work."

According to the study, "California's experience with compounded drugs in workers' compensation further illustrates the difficulty of managing pharmacy benefits without adequate controls over utilization as well as unit prices."

The authors note that another recent CWCI study shows that despite a downward trend in volume, a change in the mix of ingredients, the number of ingredients, the average quantity of ingredients and the average payment per ingredient have "effectively raised the average price of compounded drugs by 68%."

Unless rebutted by other studies, the CWCI study is likely to become a prominent factor in future efforts by policymakers to regulate physician dispensing and repackaged drugs.

The CWCI study can be downloaded here:
http://www.cwci.org/research.html

Stay tuned.

In a few days I'll be posting on the debate brewing in Sacramento about limiting pro athlete cumulative trauma claims.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

In two recent posts I've examined the issue of what doctors will be paid to do IMR reviews under the new system that has gone into effect for post 1/1/13 cases.

Greg Jones of workcompcentral.com has been covering this issue. In a piece posted today on the workcompcentral.com site, Jones quotes from an interview with Michael Gavin, an executive with a Georgia based company called Prium Medical Cost Management Services.

Apparently Gavin is skeptical of the constitutionality of a non-appealable IMR system. That's an issue that will be sorted out by the courts.

Gavin was asked about concerns that the IMR reviewer will not sift through a voluminous amount of medical records that may be submitted to demonstrate the rationale for treatment.

Jones quotes Gavin as saying that there is no reason to burden the IMR doctor with voluminous records or any more information than was submitted with the original request. Gavin apparently argued that the data set available to the IMR reviewer should be the same as was offered to the UR reviewer.

There's a problem with that, though.

First, the rules on what a carrier must provide to the UR reviewer are very lax. Any workers' comp attorney could tell you that carriers often send very little information to the UR reviewer. Important test results are sometimes omitted. Records documenting what treatments worked and what treatments did not work are often not submitted.

The UR reviewer often has very scant contextual medical documentation.
UR reviews are often done on a "top sheeting" basis.

The recently adopted IMR rules require the adjuster to send more information to the IMR reviewer.

That's as it should be.

If Gavin is advocating for a form of IMR that is really a 2nd level UR, that's not what seems to be contemplated by the IMR rules.

So it is not mere quibbling to have concerns over whether doctors will be paid adequately to do a thorough job in doing an IMR which is essentially
non-appealable.

But David DePaolo, publisher of workcompcentral.com has an interesting take on the issue.

Readers should check out DePaolo's argument on his DePaolo's Work Comp World blog with his piece titled "It's Not What IMR Costs, But the Costs of IMR":
http://daviddepaolo.blogspot.com/2013/0 ... f-imr.html

Stay tuned. In coming posts I'll be dissecting some of the trends outlined by CHSWC in the 2012 CHSWC report that was recently posted online.

Julius Young
www.workerscompzone.com
www.boxerlaw.com