Wednesday, April 25, 2012, 10:31 PM - Understanding the CA WC systemI recently settled a case that I'd handled for about eight years.
As I wrapped up some loose ends on the file, I printed out a log of "case activity".
The log was 33 pages long. There were about 800 activity entries. From the first meeting, filing the opening papers, to scanning in the settlement documents.
Entries of hundreds and hundreds of phone calls. Hundreds and hundreds of letters. Hundreds and hundreds of documents logged in or scanned.
And those are just the noteworthy calls, letters and documents. We wouldn't log or scan many of the random activities undertaken in the file.
I suspect the actual activity total was at least double if not triple.
Like a symphony played by an orchestra, there it was, laid out in the log. Notes from a receptionist, my secretary, my paralegal, our scheduler, and myself.
Responding to late checks, requests for advances, scheduling doctor appointments and depositions. Status discussions. Hand holding the applicant. Trying to explain why things happen. Explaining what may happen next. Taking information. Putting pieces of a puzzle together.
Putting out the "fires" which inevitably happen in cases.
In the workers' comp system, lawyers and judges get plenty of attention.
But in truth in many offices it is the staff that keeps the system running.
We're in the middle of what used to be "Secretaries Week", now commonly referred to as "Administrative Professionals Week".
Any office representing injured workers has a dedicated staff doing the sorts of things outlined above.
These are the workers who speak with the injured worker claimants, who hear the frustration and angst those workers voice. They are the folks who make many of the followup calls while the attorneys are in court and deposition.
It's not an easy job, but many of them do it year in and year out with aplomb. Many of them are incredibly dedicated.
They deserve our recognition and thanks. We couldn't do it without them.
Monday, April 23, 2012, 08:56 PM - Political developmentsPrime Healthcare is one of California's largest hospital chains.
Operating multiple California hospitals (all but one in Southern California), Prime was founded in 2001 by a cardiologist, Dr. Prem Reddy. According to Prime's website, among the facilities Prime Healthcare Services currently owns and operates are Desert Valley Hospital in Victorville, Chino Valley Medical Center in Chino, Montclair Hospital Medical Center in Montclair, Sherman Oaks Hospital and the Grossman Burn Center in Sherman oaks, West Anaheim Medical Center in Anaheim, Huntington Beach Hospital in Huntington Beach and La Palma Intercommunity Hospital in La Palma, California.
Several of these hospitals have been under attack in the press and by regulatory authorities for some time.
A 2007 Los Angeles Times article referenced allegations that the hospital pursued profits by cutting unprofitable patient care offerings and canceling insurance contracts.
Later there were allegations that the hospitals were upcoding billings and doing a lot of treatment for conditions such as septicemia that were claimed much more often at the chain's hospitals.
In late 2011 the FBI was said to be investigating Prime's billing practices for patient care of the elderly.
And more recently the chain has been accused of "trapping".
It appears that the "trapping" claims refer to an alleged policy of hanging on to patients who would otherwise be transferred to the hospital serving the patient's insurer network.
How is this said to work?
Here are a few paragraphs from a piece done by a reporter for California Watch, Christina Jewett:
"If a Kaiser Permanente customer ends up in the emergency room of another hospital, Dr. John Shohfi and his team of Kaiser doctors and nurses expect to be informed.
They're on call 24 hours a day, coordinating care when Kaiser patients are treated elsewhere.
But when Prime Healthcare Services took over a chain of Southern California hospitals, Shohfi testified today, there was a noticeable change in his relationship with Prime and its doctors.
“No calls,” said Shohfi, an emergency room physician. “They just stopped calling.”
Two health care providers, Kaiser and Heritage Provider Network, have accused Prime of "trapping" or "capturing" their patients in Prime emergency rooms and hospitals in order to charge more for treating patients from outside their medical networks."
Prime's policies were the subject of a February 24, 2012 legislative hearing.
As with many of the varied allegations about Prime's policies, the chain disputes any claims of wrongdoing and cites various awards the chain has received and the positive role of the hospitals in their communities.
But concern over these policies has led to a bill, SB 1285, carried by Ed Hernandez (D-West Covina). Hernandez is chair of the California Senate Health Committee.
It's easy to see how "capturing" could be a problem in workers' comp, if out-of-network hospitals hang on to patients, driving up billings.
Although I'm not aware of any studies that have been done on a workers' comp component to these alleged practices, focus on the issue may cause some workers' comp payers to look at how this affects them.
This controversy comes in the wake of concern about the role economic incentives may be distorting the provision of care in California, particularly in the Los Angeles area.
Here is a link to today's article in California Watch by Ms. Jewett that explores the background on SB 1285.
http://californiawatch.org/dailyreport/ ... ents-15818
It's pretty dry stuff, but for wonks out there, the current version of SB 1285 contains this description:
"Existing law provides for the licensure and regulation of health facilities by the State Department of Public Health and requires a licensed facility that maintains and operates an emergency department to provide emergency services and care to any person requesting the services or care for any condition in which the person is in danger of loss of life or serious injury or illness, as specified. Existing law requires hospitals to maintain a written policy regarding discount payments for financially qualified patients as well as a written charity care policy. Existing law requires a hospital to limit the expected payment for services it provides to certain low-income patients to the highest amount the hospital would expect to receive for providing services from a government-sponsored program of health benefits in which the hospital participates. Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law requires health care service plans, or their contracting medical providers, to reimburse providers for emergency services and care provided to its enrollees until the care results in stabilization of the enrollee.
This bill would require a hospital with an out-of-network emergency utilization rate of 50% or more to adjust its total billed charges for emergency services and care provided to a patient prior to stabilization to an amount no greater than the amount the hospital could expect to receive from Medicare for the services and care or, if there is no established payment amount by Medicare or if that amount is not sufficient to cover the actual cost to the hospital, an amount no greater than a good faith and reasonable estimate of the actual cost of providing the necessary services and care, as specified. The bill would specify that this provision does not apply to charges billed by emergency physicians, as defined, or to charges provided as treatment for an injury that is compensable for purposes of workers’ compensation. The bill would also specify that its provisions do not apply if any other law requires the hospital to limit expected payment for the emergency services and care to a lesser amount, if a contract governs the total billed charges for the emergency services and care, or if a government program of health benefits is the primary payer for the emergency services and care. The bill would require health care service plans or their contracting medical providers to reimburse hospitals in accordance with these provisions. Because a willful violation of that reimbursement requirement by a health care service plan or its contracting medical providers would be a crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason."
Friday, April 20, 2012, 09:33 AM - Understanding the CA WC systemI found myself "in the dark" in a number of instances this week.
The experience got me thinking about how failure to serve documents leads to extra delays and costs in workers' comp.
Vendor costs, including costs of interpreters and copy services, have become hot topics for potential reforms.
I'm not one to go out and subpoena from day one all medical treaters that the worker has seen, all employment records and the like.
Why would I want to even consider doing that? Why stir up a hornet's nest and raise potential issues that might be unimportant or possibly even hurt my client?
But what is galling is when adjusters fail to serve medical reports on counsel as required by the WCAB rules. Some carriers seem to have a culture of not serving reports on a timely basis. Some don't even serve their own defense counsel with documents.
Some examples of how this plays out......
After I send the claims department of a major grocery chain a notice of representation and a request to be served with medical reports and documents, I wait for compliance...and wait. a followup contact effort leads nowhere. So I subpoena medical records and the claims file. More "frictional costs" now incurred. This self-insured grocer that prides itself on efficiency will now be saddled with copy service costs.
We're at a settlement conference at the board. Stipulations are drafted. The defense lawyer looks forward to resolution of a long-running case. I am recommending the resolution to my client. The client will not sign. He wants to know what is going to happen with his doctor's recommendations
Huh? It turns out that a slew of reports from the treating doctor have not been served on me (or defense counsel). Apparently requests for certain tests and treatments have been ignored, perhaps not even sent to utilization review.
Steps that could have been taken to move matters forward did not happen because the parties were in the dark. Records will now be subpoenaed. More copy service costs.
Another scenario? The phantom treater.
This time the culprit may not be the carrier. It's the phantom treater.
A worker whose case has been relatively quiet calls to ask about what is going on with the claim. Mentioning a doctor I've never heard of (and who has never been designated as PTP) it appears that doctor has multiple office locations and has cross-referred the client for a variety of tests and consultations. A call to the defendant reveals that they are not aware of this.
Treatment and tests appear to be ongoing in a parallel universe.
Undoubtedly these are doctor who intend to treat "on a lien". Perhaps one will eventually produce a letter showing that the client did designate then as PTP. For now it is phantom treatment.
More copies will be ordered to track all this down.
As you can see, it's complicated.
Tuesday, April 17, 2012, 10:14 PM - Political developmentsThe American Legislative Council (ALEC) has been hemorrhaging corporate sponsors in the wake of the controversy over Florida's stand-your-ground law after the killing of Trayvon Martin.
ALEC has been a proponent of stand your ground laws in various states. Other causes have been privatization of state services,opposition to taxes on sodas, tort reform, rollback of regulations and the end of Obamacare. On ALEC's website is a pdf document "The State Legislator's Guide to Repealing Obamacare".
Evidence based medicine is not a favorite of ALEC either. Included on the ALEC site is a position paper, "Evidence-Based Medicine: Rationing Care, Hurting Patients".
I guess a War of the Acronymns would be in order. Let ACOEM face off against ALEC.
With this agenda, it is not surprising that the billionaire Koch brothers, embroiled in Wisconsin's controversy over unions, are supporters.
But you probably were not aware that sponsors included such companies as Coca-Cola, PepsiCo, McDonald's, Wendy's, Kraft Foods, Exxon Mobil, State Farm Insurance, Peabody Energy, AT&T, Johnson & Johnson and Pfizer.
Talk about Blue Chips.
Coke and Pepsi have decided to bail on ALEC, however. As have the burger folks.
The clean coal guys and Pharma industry are hanging on.
What caught my eye (and that of Orange County attorney Tom Martin, who brought this to my attention) is that ALEC did venture into California workers' comp back in 2004.
The Spring 2004 ALEC Policy Forum Journal published an article "How to Fix California's Broken Workers' Compensation System", (link to the article is below).
That article was initially published by the San Francisco-based Pacific Research Institute, a conservative think tank headed by Sally Pipes.
Facebook VP and general counsel Ted Ulyot currently sits on the PRI board.
Written by Lawrence J. McQuillen and Andrew M. Gloger, the article suggested a number of reforms, some of which were enacted in 2004.
In publishing the PRI article in Spring 2004 , ALEC noted that "ALEC has formed a special working group to address workers' compensation reform".
ALEC has in many instances in various states drafted legislation and pushed its reform agenda on a multi-state basis.
Workers' comp reforms have been a big issue as many states did do workers comp reform over the past decade. Perhaps ALEC was involved in many of those instances, though I don;t have details to substantiate that.
But it's worth note that nationally focused think tanks are interested in
workers' comp reform as part of their overall economic vision.
Here is a link to the ALEC article:
http://heartland.org/sites/all/modules/ ... /16004.pdf
Sunday, April 15, 2012, 11:18 AM - Medical treatment under WCA key focus of upcoming legislative or regulatory proposals in California's workers' comp system will be escalating medical costs, measures used to contain costs, and the costs of those measures.
It's striking that almost everyone seems unhappy with the current system.
Workers and doctors are frustrated with the delays and hassles of the UR system.
These delays can cause considerable suffering and delay return to work, throwing the worker and families into financial crisis, particularly with the 104 week limitation on TTD.
And many stakeholders are now uncomfortable with the expanding price tag of cost containment.
So there could be tinkering with utilization review procedures. Proposals to eliminate UR altogether will surface, replacing it with an Independent Medical Review scheme that is used with California's managed care health insurers (more on that in posts to come). Those proposals could include appealable IMR or, most extreme, a non-appealable IMR.
But if IMR does not come to pass and UR survives, there are many things that could be done.
Why should an insurance carrier be allowed to have a financial interest in a UR company?
Financial conflicts and financial incentives of UR physicians need to be better spelled out.
If an employer can pick doctors to be on its own MPN network, should it be allowed to UR the medical requests of the doctors it selected?
Shouldn't UR be reserved for medical procedures that exceed a certain dollar threshold? Does a cane or a brace need to be UR'd?
Should a carrier be allowed to do utilization review again and again on medication requests even where the medicines have been prescribed for a long time?
Shouldn't the rules be clarified to require the carrier to provide adequate contextual medical records to the UR physician?
The law and regulations could be tightened to simplify the UR timeframes and clarify the process of appealing UR denials. Using the QME system to appeal every UR denial is costly and unworkable.
But lest you think this is an applicant laundry list, there are many other changes that could be considered as part of a UR and treatment overhaul.
Perhaps the system could require more clarity from treating doctors on the history of their treatment, the goals and progress toward those goals.
If a test or procedure is to be repeated, a higher threshold of documentation could be required.
Doctor mills which churn out constant procedures and half a dozen medications (or more) on each patient could be required to give a deeper analysis of the long term care plan and the costs and benefits.
In treatment requests, doctors could be required to explain more of the risks and side effects of medications and procedures. For example, how many physicians document the dental risks of certain opioids, which may lead to claims of consequential dental injury?
Tie breaker procedures of the sort currently used for spinal surgery could be used for other types of surgeries or medical device use.
A special protocol could be set up for handling opioid treatments.
MPN regulations and lien regulations could be tightened to make it less appealing for doctors in accepted cases to risk treatment on a lien (something that currently happens on a regional basis).
Special focus could be given toward long term chronic treatments and how to achieve a cost-benefit balance in such situations.
Employers who wanted to offer workers the option of bringing their treatment in-house to employer-sponsored group health plans should be allowed to do so.
And of course, doctor pay could be adjusted.
A shift from the California fee schedule to a Medicare-based RBVS system has been discussed, but not implemented.
And outcome based pay to medical providers could be considered. More on that later.
I recognize that some of these concepts are anathema to legal and medical colleagues I know and respect.
But a train is rumbling down the track. Lots of things are in play.