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Grinberg: The New Med-Legal Fee Schedule, Part II

By Gregory Grinberg

Friday, April 9, 2021 | 0

There are now new duties imposed on the parties in sending documents to the medical-legal evaluator.

Section 9793(n) requires “[a]ny documents sent to the physician for record review” to be “accompanied by a declaration under penalty of perjury that the provider of the document has complied with [LC 4062.3] before providing the documents to the physician.” The declaration also has to include an “attestation as to the total page count of the documents provided.”

What happens if there is no such declaration? Then the physician cannot bill for review of those records, but the records are also not considered “available” or “received” by the reviewing physician. 

So, what’s the big deal? Defendants can easily reduce their bills by not including the attestation, so the medical-legal evaluator will either review it and not be able to bill for it, or not review it at all and then won’t have a substantial medical evidence report, right?

No, dear readers, not even close. Shame on you for even suggesting such an idea! I know, I know, I suggested it, but we’re all in this together, right? Remember that these new regulations in no way abridge the duties imposed by California Code of Regulations Section 35, which holds, in subsection (a), that “the claims administrator, or if none the employer, shall provide … the following information to the evaluator: (1) all records prepared or maintained by the employee’s treating physician or physicians; (2) other medical records … which are relevant to the determination of the medical issue(s) in dispute."

So, defendants must still provide the records, and in order to comply with Section 35, they must include a declaration pursuant to Section 9793 as well.

Now, to the medical-legal evaluators reading this, I’m sure you’re all champing at the bit to hear about the part where you finally get paid more. Well, we’re finally here.

Section 9795 has been amended and reworked significantly. The new multiplier for the relative value (RV) system is $16.25, up from $12.50 (a 30% increase). There is even a new billing code for missed appointments (ML200) that not only allows the evaluator to bill $503.75 but also allows the evaluator to bill for medical document review in excess of 200 pages at $3 a page.

Missed appointments don’t just mean no-shows, however. They include cancellation within six business days of the scheduled exam, the injured worker being more than 30 minutes late, not having access to an interpreter when needed, or the injured worker leaving before the evaluation is complete. Defendants may now see credit against an applicant’s award “if fees for failed appointments and for late cancellations are incurred through the fault or neglect of the injured worker or his/her representative.”

This will set an interesting pace with those qualified medical evaluators who unilaterally set cancellation notice requirements of more than the six business days required by the regulations. If the QME sends out a notice that cancellations must be done in writing at least 10 business days before the exam but the parties cancel seven business days before the exam (for example, if the applicant decides to undergo surgery and utilization review approves), then the QME might refuse to re-set the exam until the bill is paid but would have no legal basis to do so. Discipline by the Medical Unit might be appropriate in such a case.

Evaluations that actually go forward are charged at a base price of $2,015, with the same $3 per page in excess of 200 being billable. A reevaluation within 18 months of the original exam is billed at only $1,316.25, and the first 200 pages reviewed by the evaluator are included, but any records previously sent and already reviewed by the evaluator don’t count. In other words, the evaluator cannot bill for reviewing records already reviewed and billed for.

But what about reviewing his or her own reports? What if the panel QME spends time reviewing his own 55-page report prior to a reevaluation? will that count toward the 200 “new” pages? Case law will tell, as it always does.

Under ML-203, supplemental reports are billed at $650, and that fee includes the review of up to 50 pages not previously reviewed by the evaluator. Of note, any questions asked of the evaluator as part of a prior exam that were not answered cannot be the basis for this bill. So, if a defense attorney asks the QME to address whether the injury is a specific injury, cumulative trauma or both (and explain the reasoning ), and the QME fails to address this question, the follow-up letter must be addressed by the QME without billing for it.

Testimony for depositions is now billed at $455 per hour under ML204, and as before, there is a minimum of at least two hours for deposition. By contrast, review of sub rosa is billed at $325 per hour. Surprisingly, defendants are not required to provide microwaveable popcorn with the sub rosa DVD, which is clearly an oversight by the drafters.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.


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