The Department of Industrial Relations has issued new regulations, Title 8 CCR 9793 through 9795, which I feel are important to the defense community. There are some important changes not only in the procedures but especially in the reimbursements of medical-legal expenses.
CCR 9793 goes through the various definitions of what a medical-legal evaluation is. One important change notes that a “follow up medical-legal” is one that now occurs within 18 months of the previous examination rather than the nine months as previously outlined in the code.
Another important change is the record review. This has been defined as a review by the physician of documents sent to the physician in connection with a medical-legal evaluation or request for a report. The rules states that these document may consist of medical records, legal transcripts, medical test results and/or other relevant documents.
Of importance, they state that “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. Please note that a physician may not bill for review of documents that are not provided within this accompanying required declaration from the document provider. Additionally, 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 regards and report writing.
This is very important and it shows that the parties need to come together to properly identify and count the records going to the doctor and provide the appropriate declarations and attestations or these records are not going to be reviewed and additional costs and delays are going to be put in place.
Under Regulation 9794 no charges may be billed under the Official Medical Fee Schedule in connection with a medical-legal evaluation or report other than x-rays, lab services and other diagnostic tests which are needed for the evaluation.
Regulations 9795 deals with the reimbursement for medical-legal procedures and these have gone up. Regulation 9795(b) indicates that the multiplier has gone from a relative value of $12.50 to $16.25 which is almost a 25% increase.
The Codes have been renamed as well. The basis code now is ML200 and that is reimbursed at a rate of $503.75. This does not include the record reviews which are reimbursable at $3.00 per page for any records in excess of 200 pages. This rate also notes that if there is a fee for the failed appointment or late cancellation which is incurred through the fault or neglect of the injured worker or his or her representative, the employer may seek credit for those charges against the injured workers’ award. Please note this does not say you get credit for it but it is something that you have to request through the Workers’ Compensation Judge.
The ML201 evaluation is now defined as a comprehensive medical-legal evaluation and is now reimbursed at $2,015.00. This fee includes a review of 200 pages of records. All records in excess of that, however, are now billable at $3.00 per page. Again, they note that the physician shall include in the report a verification under penalty of perjury of the total number of pages of records reviewed by the physician.
In a follow up evaluation, an ML202, this is now reimbursed at $1,316.25. This fee includes the review of 200 pages of records which were not reviewed as part of the initial comprehensive medical-legal evaluation. Review of records in excess of 200 pages that were not reviewed as part of the initial comprehensive medical-legal evaluation shall now be reimbursed at the rate of $3.00 per page.
For an ML203, which is a request for supplemental medical-legal evaluations, this is reimbursable at $650.00. Please note that the fee will not be allowed under this section if, 1) following the physician’s review of information which was available in the physician’s office for review or was included in the medical report 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.
Note, they also indicate that failure to issue a supplemental report under this request because of an inability to bill for the report, constitutes grounds for discipline by the Administrative Director. Again, this fee includes review of 50 pages of records and anything over that is reimbursed at $3.00 per page.
For deposition testimony or medical-legal testimony, this is now billed at an ML204 at a rate of $455.00 an hour. The doctor is paid a minimum of two hours for the deposition. If this is cancelled fewer than eight calendar days before the scheduled deposition date, and the physician is entitled to a minimum of one hour for the scheduled deposition time.
Under the ML205 fee for review of sub rosa recordings, this is done at $325.00 an hour.
There are further additional modifications for psychiatrists, psychologists, toxicology evaluations, and oncology evaluations where the modifiers are being adjusted as well.
Lastly, for any IME reports ordered by the Workers’ Compensation Judge, the Judge has the ability to apply the appropriate modifier to that medical-legal evaluation for processing.
The sum of this is that the carrier and/or attorney need to make sure that there is an agreed upon method of getting the medical records to the medical-legal evaluator. The last thing we want to see is duplication of records from both the applicant and the defendant resulting in an inordinate amount of medical record review.
Also, the failure to properly provide the declaration and attestation, may result in the doctor not reviewing the medical records which would then necessitate follow up medical-legal proceedings.
Additionally, in circumstances where there are a tremendous amount of medical records which are likely not relevant to the issue at hand, the question becomes a) whether or not you want to send those records to the doctor and incur the charges or b) not send them to the doctor and run the risk of having the doctor’s report challenged as not being substantial medical evidence. This should be addressed on a case by case basis and preferably with an agreement of both parties prior to the medical-legal evaluation.
Bear in mind that these rules and regulations apply only to medical-legal evaluations which have occurred subsequent to April 1, 2021.