Apr 27, 2021

The DWC just announced approval of the Medical-Legal Fee Schedule (MLFS) which went into effect as of April 1, 2021.

Pursuant to Title 8 California Code of Regulations, section 9795, for all Medical-Legal appointments scheduled on or after that date, the MLFS requires that a declaration be provided to the evaluating physician which states the following:

“Any documents sent to the physician for record review must be accompanied by a declaration under penalty of perjury that the provider of the documents has complied with the provisions of Labor Code section 4062.3 before providing the documents to the physician. The declaration must also contain an attestation as to the total page count of the documents provided. A physician may not bill for review of documents that are not provided with this accompanying required declaration from the document provider. Any documents or records that are sent to the physician without the required declaration and attestation shall not be considered available to the physician or received by the physician for purposes of any regulatory or statutory duty of the physician regarding records and report writing.” (Emphasis added).

Pursuant to the Regulations, failure to send the signed declaration is grounds for the evaluator to refuse to perform the evaluation. I am sure some will be all too happy to send a missed appointment fee invoice instead.

The fee schedule includes a flat rate for the evaluation which includes review of up to 200 pages of records forwarded to the evaluator. For review of any pages over 200, the evaluator is entitled to $3.00 per page!

Other critical points in the new fee schedule regulations are that for follow up evaluations which occur within 18 months from the date in which a prior comprehensive evaluation was performed, the fee includes review of 200 pages which were not reviewed as part of the initial evaluation or as part of any intervening supplemental evaluation.

Additionally, with respect to supplemental report requests, fees will not be allowed under this section for supplemental reports: “(1) following the physician’s review of information which was available in the physician’s office for review or was included in the medical record provided to the physician prior to preparing a comprehensive medical-legal report or a follow-up medical-legal report; or (2) addressing an issue that was requested by a party to the action to be addressed in a prior comprehensive medical-legal evaluation, a prior follow-up medical-legal evaluation, or a prior supplemental medical-legal evaluation.”

Should an evaluator refuse to prepare a supplemental report on grounds that they will not be paid pursuant to the regulations, they are subject to disciple by the Administrative Director.

With supplemental requests, the fee includes review of records up to 50 pages. For review of pages in excess of 50 pages, $3.00 per page fee applies.

Please also note that the modifiers have changed, and that as a result fees for Medical-Legal testimony (“doctor’s depositions”), review of sub-rosa records, and missed appointment fees have all changed.

What does this all mean in practice? We often forward the entire medical record to an evaluator. In fact, failure to do so could render a report to not constitute substantial medical evidence. However, often a complete medical record will contain duplicate reports.

Additionally, when we forward complete subpoenaed medical records, there are often pages which contain very little information, or information entirely irrelevant to the medical issues.

On the claims administration and defense side, to reduce cost exposure in connection with Medical-Legal it is vital that we take a closer look at what is being provided to the Medical-Legal evaluator. Removing duplicate medical reporting and eliminating proofs of service, the actual subpoena and other copy service documents, and blank pages from subpoenaed records will be helpful. Additionally, the regulations define page as an 8 ½ by 11 inch single-sided document. Additionally, the regulations state that multiple condensed pages or documents displayed on a single page shall be charged as separate pages, therefore attempting to reduce costs by sending the condensed deposition transcript or by condensing medical records will not likely reduce costs.

Some potential irrelevant records and documents may be personnel records in non-psych claims and medical records for issues outside of those injuries claimed by the injured worker (i.e., applicant’s internal medical issue records for a solely orthopedic claim). Additionally, complete WCAB records, which include minutes of hearing, correspondence and notices should be reduced to only applications, medical reporting, and settlement documents and/or final awards. What will be likely be the most effective way to reduce costs in connection with record review will be to eliminate any non-relevant records and reach an agreement with opposing counsel on what is to be provided to the evaluator. Eliminating non-relevant medical records and having a signed agreement with Applicant’s counsel on what is to be provided will help reduce litigation later in which the opposing side claims that the doctor’s report cannot constitute substantial evidence as there was a prior agreement.

Finally, in regard to when both parties are preparing advocacy letters and enclosures to the evaluator, the parties should be very mindful as to whether the parties are both sending any duplicative records. Joint letters and agreed enclosures packages will be much more cost effective in terms of application of the new fee schedule and should be utilized whenever possible.

Click here for the full language of the new regulations.

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