Wednesday, February 8, 2012, 09:11 AM - Political developmentsProposed regulations for the Physician Payment Sunshine Act (part of Obama's health reform act, the Affordable Care Act) are now posted for public comment. Comments will be due by 5pm EST on February 17, 2012.
According to a summary posted on the Federal Register:
"This proposed rule would require applicable manufacturers of drugs, devices, biologicals, or medical supplies covered by Medicare, Medicaid or the Children's Health Insurance Program (CHIP) to report annually to the Secretary certain payments or transfers of value provided to physicians or teaching hospitals (“covered recipients”). In addition, applicable manufacturers and applicable group purchasing organizations (GPOs) are required to report annually certain physician ownership or investment interests. The Secretary is required to publish applicable manufacturers' and applicable GPOs' submitted payment and ownership information on a public Web site."
The text of the proposed rules can be found here:
Thursday, February 2, 2012, 10:08 PM - Understanding the CA WC systemThe following is a true story:
One of the parties requested a panel QME in psychology. The request was filed with the Medical Unit in early March 2011. No response was received, and the parties therefore requested the WCAB issue an order requiring the Medical Unit to issue a panel.
A panel was finally issued by the Medical Unit over two months from when the request was filed.
A QME was selected, but the QME was unavailable to see the worker after multiple attempts to schedule the exam.
By that time it was over four months from the original request for a psych panel. A replacement panel was requested and issued some four and a half months after the original request.
The replacement panel QME could not schedule the worker until December 2011.
Defendant requested a second replacement panel on the grounds that the first replacement panel doctor was not available to do the exam within 60 days of the issuance of the replacement panel.
The applicant went to the December 2011 appointment but was turned away, being advised that the defendant had cancelled the appointment.
A declaration of readiness was filed regarding the panel selection issue. An expedited hearing was set for February 2012.
By that time it was almost a year from the initial panel request. The Medical Unit had not yet acted on the request for a second replacement panel.
It was pointed out to the WCJ that the California Constitution entitles the injured worker to an expeditious, unencumbered remedy, and that if the Medical Unit is understaffed and burdened with technology problems such that it is not able to function within its own rules, then the remedy is to allow the parties to obtain their own QMEs.
The applicant attorney noted that this had been done in a case reported in the California Workers' Comp Reporter at 35 CWCR 185, Fabry v. ACE (OAK 326189). In that 2007 case, handled by my law partner Michael Gerson, WCJ Christopher E. Hamilton ruled that the parties were permitted to select their own QME when the DWC delays designation. The Fabry case never went up on appeal.
At the February 2012 hearing the WCJ issued the following order:
"It is my belief that the panel QME system is broken. This case needs to come to resolution and this can only be achieved if both parties have an opportunity to obtain their own QMEs."
The sad thing about this true story is that versions of it are happening again and again. A toxic mix of bureaucratic delay and rule-based gamesmanship all too frequently stymies employers and applicants.
Perhaps the WCJ is on to an elegant solution. Let the parties develop the evidentiary record without the bureaucratic intermediary.
Policymakers, take note.
Tuesday, January 31, 2012, 10:15 PM - Understanding the CA WC systemCalifornia workers' comp insurer profitability has improved?
That's not a headline we'd expect to see, particularly given the conventional wisdom that loss ratios of California workers' comp carriers have deteriorated. The conventional wisdom is that comp carriers have seen declines in investment income and in premium volume while costs were rising.
So it was with some surprise that I see the January 31, 2012 bulletin from the California Workers' Compensation Institute. The numbers do the talking, so I'll present the results without a lot of editorializing in this post.
According to the press release:
"After declining for four years in a row, California workers' compensation insurers' return on net worth showed signs of improvement in 2010 according to new National Association of Insurance Commissioners (NAIC) data, which pegs the California insurers' 2010 return on net worth at 5.2 percent vs. 4.6 percent in 2009, moving the state's ranking from 25th to a tie for 18th out of 46 states that operate without a monopolistic state fund."
The CWCI bulletin noted that the NAIC compiles an annual report on profitability of all lines of insurance by state and by type of insurance.
According to CWCI, because the NAIC report "is the only source of complete, direct income statement data for al lines of insurance for every state, and it is produced by an objective source, the report is a useful tool for tracking the performance and profitability of different lines of insurance over time."
In 2010, California workers' comp was said to generate a 5.2% return on net worth vs 3.9% for all United States workers' comp. By comparison, all California lines of insurance generated 9.7% returns. Property and casualty lines of insurance generated 6.0% returns in 2010, only slightly higher than the California workers' comp returns.
So comp isn't the most lucrative type of insurance in California, but the results here were better in 2010 than the national average.
The 2010 Fortune rate of return for all industries was 12.7%.
The CWCI bulletin notes that:
"As an industry, California workers' compensation insurers met or exceeded the 12% standard from 2004-2007, but the market has been on a roller coaster ride since the late 1990s, and those double-digit returns in the middle of the decade followed four straight years of losses that ended when they finally moved into the black in 2003. After the 2006 peak, California insurers' returns began to trend down, dropping to a 6-year low of 4.6% in 2009, so even though the 5.2% return for 2010 was slightly below the 10 year average, it did mark the first year-over-year improvement in the rate of return in four years. Although California workers' compensation insurers' average return on net worth for 2010 was less than the returns for all lines of insurance in California and the U.S., as well as the returns for property and casualty insurers and the Fortune's Industrial and Service Sectors, it was better than the 3.9% average earned by workers' compensation insurers nationwide."
The years after the Schwarzenegger 2004 reforms were fat for the industry.
From a negative 11.5% return on net worth in 2002, returns climbed to 12.6% in 2004, 14.2% in 2005, 16.4% in 2006, and 12.1% in 2007 before settling down to lower levels.
But despite all of the California system's problems, profitability of insurers appears to have stabilized.
These results come at a time when we've learned that injured workers experienced a 58% decline in PD payouts.
It's all part of the puzzle we call workers' comp, as various stakeholders envision how possible changes in the system might fit together to create a different picture.
Wednesday, January 25, 2012, 06:27 PM - Understanding the CA WC systemSome would say that the volume of liens clogging some California WCAB district offices are like a plague of locusts.
The sheer volume of liens has made it hard to do business in some boards, overwhelming staff and judges and causing massive calendaring problems.
This has been developing for some time, and the problem has been under study for quite a while. Possible legislative fixes have fizzled. Regulations to deal with the problem have been slow to evolve. The Schwarzenegger DWC held a "lien fiesta". Some liens have been offloaded from Los Angeles to Oxnard.
So it was with interest that I read quoted comments from DWC Administrative Director Rosa Moran on the issue. Moran spoke this week at the Employers' Fraud Task Force lunch in Commerce, Ca. The event was covered by Greg Jones, who covers the California workers' comp scene for workcompcentral.com.
Apparently the Los Angeles WCAB office has 500,000 liens. These include liens filed by providers and so-called "zombie liens" which are purchased by companies from providers.
That's not to say that all the liens are illegitimate. Liens are filed for many reasons. A carrier may cut the doctor's bill without proper justification.
A worker may have a legal basis for seeking treatment outside the MPN.
A doctor may simply find that repeated billing for services has not resulted in payment.
But it stretches credulity to believe that these problems are so much more prevalent at certain LA boards than elsewhere.
The problem has been well-documented and analyzed by CHSWC, which did a report on January 5,2011. Those wishing to read reaction to the lien report can find the public comments still posted on the CHSWC website.
The CHSWC draft recommended 28 measures to deal with the lien problem.
Although some of the measures may need some work, as a whole they are a reasonable way to address the problem.
In case you missed the CHSWC draft, here are the recommendations:
Recommendation 1: Consider reinstating a filing fee for medical and medical-legal liens. ......................
Recommendation 2: Require frequent lien filers to file their liens electronically.....................................
Recommendation 3: Prohibit filing of amended liens prior to Declaration of Readiness. ........................
Recommendation 4: Until the volume of liens is substantially reduced by other measures such as recommended in this report, equip the WCAB District Office with sufficient resources to meet workloads.......................
Recommendation 5: Adopt medical fee schedules to cover those services that are often disputed due to gaps or ambiguities in the existing fee schedules. ............
Recommendation 6: Establish an administrative system for fee schedule determinations, subject to limited judicial review...............................
Recommendation 7: The boundaries of MPN control over medical treatment should be more clearly defined to minimize the potential for disputes over rights to select medical providers. ..........
Recommendation 8: Disputes over assertions of MPN control over medical treatment should be brought to adjudication promptly. .................
Recommendation 9: Sanctions should be imposed on providers and claims administrators alike for repeated patterns of incorrectly asserting or denying the status of an authorized medical provider. .....
Recommendation 11: Labor Code section 4903.6 should be amended to forbid filing a medical or medical-legal lien until the bill is genuinely in dispute. .......................
Recommendation 12: Labor Code section 4903.6 and Rule 10770.5 should be amended to provide consequences for violation that can be effective deterrents to premature filings.........
Recommendation 13: Enact a statute of limitations, effective prospectively based on date of services to bar any lien unless the service is billed in accordance with regulations and the lien is filed within a defined time following that service. ............
Recommendation 14: Enact a statute of limitations to bar any lien for service, regardless of date of service, which is not filed within three years of the date of medical service............
Recommendation 15: Eliminate implied liens for medical treatment or medical-legal expenses.........
Recommendation 16: Impose automatic dismissal by operation of law for any lien which is not activated for hearing within finite time....................
Recommendation 17: Allow additional time for medical insurers to file liens for reimbursement of sums paid for covered treatment. ......................
Recommendation 18: A lien claimant should be required to disclose its relationship to the original provider of goods or services and produce documentation on demand. ...........
Recommendation 19: A lien representative should be required to provide documentation of the representative’s authority upon demand....................1
Recommendation 21: Payments in satisfaction or settlement of liens should be made only to the original provider of goods or services unless a bona fide assignment is documented. ........
Recommendation 22: The Administrative Director should adopt a fee schedule and ground rules for payment of copy services. .............
Recommendation 23: The Form 6, “Notice and Request for Allowance of Lien,” should be revised to identify liens for document copying services as well as the grounds for claiming the lien...........
Recommendation 24: Either regulation or statute should be adopted to clearly prescribe the events for which interpreter services are payable. ....
Recommendation 25: Either the interpreters' fee schedule should provide for apportioned billing when an interpreter serves multiple cases concurrently, or the WCAB should contract for interpreters to attend hearings and proportionately bill the defendants in each in which they participate...........
Recommendation 26: The Administrative Director should amend the fee schedule for interpreter services to promote uniformity and to make the fees generally commensurate with the fair market value of the services. ...
Recommendation 27: One or more independent organizations should be identified whose accreditation can serve as an alternative to SPB certification for medical examination and administrative hearing interpreters. ...........
Recommendation 28: The subjects of liens should be monitored, and the subjects that arise most frequently should be considered as candidates for improved guidance by the medical treatment utilization schedule and/or applicable fee schedules...............................
Recommendation 29: Liens by frequent filers that state incorrect lien type or make other material misrepresentations should be subject to substantial penalties, ranging from mandatory sanctions to dismissal with prejudice for repeat violations. ......................
Recommendation 30: Lien claimants should be required to use EAMS Uniform Assigned Names (UANs), and until UANs are assigned, lien claimants should be required to use correct legal names. ..........
There are plenty of other worthy solutions. Perhaps carriers who have not paid in full should be put on tight timelines to provide documentary justification for why they have not paid in full. Failure to do so could be deemed to establish presumptive liability.
Providers could be required to file a document with more information about how the services were requested and rendered.
But unless and until the DWC adopts some of these recommendations, proposed new regs by the WCAB are likely to the primary effort addressing the lien problem.
In her speech Moran endorsed rules which would allow the WCAB to dismiss liens which have not been pursued within a year of filing or within a year of an off-calendar order. The proposed rules would also tighten up on continuances in lien matters.
Here is a link to the proposed WCAB lien rules:
Public comments were solicited and are viewable here:
So the issue is obviously getting attention at the WCAB and the DWC.
Next step, please.
Sunday, January 22, 2012, 09:24 PM - Understanding the CA WC systemWhat was the impact of the adoption of an AMA-based permanent disability rating schedule in California?
That was the question addressed in a significant new study by Frank Neuhauser, Executive Director of the UC Berkeley based Center for the Study of Social Insurance.
My last post briefly covered a presentation Neuhauser gave to last week's meeting of the California Commission on Health, Safety and Workers' Compensation.
Neuhauser's study compared permanent disability claims evaluated by the DEU for the years 2003 and 2004 with claims during the 1/1/2010 to 6/30/2011 period. The study notes that "By using claims from the most recent data period available (1/1/2010-6/30/2011) we are evaluating the PDRS-05 schedule after the parties have adjusted to the new schedule and include the impact of the Almaraz/Guzman/Ogilvie case law as interpreted during the period."
At the bottom of this post I've included a link to a pdf version of the study.
But let's look at some of the key findings and "do the numbers".
Average permanent disability ratings for cases with ratings of more than zero decreased overall by 31.5% (40.1% for unrepresented cases and 28.4% for represented cases). As you might expect, ratings dropped at various percentages depending on the body part involved. Neuhauser's report did not explain the phenomenon, but it is widely noted among doctors and lawyers that some of the AMA chapters are particularly strict compared to other chapters.
Average compensation for cases with ratings of more than zero decreased overall by 40.4% (51.7% for unrepresented cases and 37.2% for represented cases).
At least 25% of the cases which received a permanent disability rating of more than zero under the old rating system now are rated as "zero".
The effect of changes in the law on apportionment was to reduce the average rating for unrepresented workers by 5.3% and to reduce the average compensation for unrepresented workers by 6.2% (note: apportionment reductions might be higher in represented cases "because apportionment is more likely to be an issue in litigated cases").
The bottom line?
Neuhauser notes that :
"If one assumes the fraction of apportioned cases was the same for represented and unrepresented cases, and the average "zero" case eliminated was similar in rating to cases not eliminated, then the impact of the PDRS-05, the change in apportionment, and the case law involving Almaraz, Guzman, and Ogilvie was to reduce PD compensation by 58%".
Although Neuhauser didn't specifically say it, it is obvious that without the Almaraz/Guzman/Ogilvie cases that the overall drop in PD compensation would have been even more than 58%.
If the Brown Administration and some in the labor movement had been tempted to latch on to arguments advanced by some stakeholders that would do away with the Almaraz/Guzman and Ogilvie cases, Neuhauser's
study will make that less appealing.
A 58% reduction EVEN WITH Almaraz-Guzman and Ogilvie.
Any legislation that may cause workers to lose even more ground in permanent disability awards and payouts would seem likely to receive even higher scrutiny after the Neuhauser study.
Here's the link to the study, which is a draft posted for public comment on the CHSWC website: