RISING COSTS OF THE MEDICAL-LEGAL PROCESS: Revisions to Medical-Legal Fee Schedule

March 24, 2021

In an effort to entice more doctors to become panel qualified medical examiners, write better reports, and reduce billing disputes over medical-legal examinations and reports, the DWC has proffered amendments to the Medical-Legal Fee Schedule. Although we are waiting for the final date of implementation, we anticipate these will become effective by April 1, 2021 and will apply to any examination occurring on or after this date (or any requests for supplemental reports sent on or after this date).

Here is a quick summary of the changes coming:

• Title 8 CCR Section 9793(n) will require any party sending records to the physician to include a declaration under penalty of perjury that the provider has complied with the provisions of Labor Code Section 4062.3. The declaration must also include an attestation as to the total page count of the documents provided. Any records sent without the requisite declaration and attestation will not be considered “available” to the physician and will not be included within their report.

• Title 8 CCR Section 9795(b) increases the relative value multiplier from $12.50 to $16.25, thereby increasing the total costs for medical-legal reports.

○ Missed appointments will be paid at $503.75. “Missed appointments” have been expanded to include not only an injured worker missing the examination, but being more than 30 minutes late for an examination, and if an interpreter does not show, thus making it impossible for the examination to go forward. This amendment also allows the examiner to bill this code if the examination has been canceled within six (6) business days of the scheduled examination.

○ Comprehensive medical-legal evaluations will be paid at a flat rate of $2,015.00, which includes a record review of up to 200 pages. Anything over the 200 page limit will be billed at a rate of $3.00 per page.

○ Follow up evaluations are to be billed at a flat rate of $1,316.25, which include a record review of 200 pages. Pages in excess of the 200-page limit will be billed at a rate of $3.00 per page. “Follow up evaluations” will only be considered a follow up if they occur within 18 months of the initial evaluation, with the same physician.

○ Supplemental reports are to be billed at $650.00 for records received up to 50 pages. Any records beyond 50 pages will be billed at $3.00 per page. One positive is that the medical-legal evaluator will not be able to bill a supplemental report for something they failed to address that was previously provided in connection with an examination, or if they forgot to address an issue that was requested by a party in a prior comprehensive medical-legal evaluation, follow up evaluation, or a prior supplemental report. The medical-legal evaluator will be subject to disciplinary action if they fail to issue a supplemental report due to the inability to bill the supplemental report for one of these reasons.

○ Medical-legal testimony is being increased from $250.00 per hour to $455.00 per hour. The new amendment also increases the minimum payment from one hour to two hours. If the deposition is canceled less than 8 days before the deposition date, the physician shall be paid for one hour of deposition time.

○ Reviewing sub-rosa footage is now separately reimbursable, to be billed at $325.00 per hour (or $81.25 for each quarter hour).

• With any reports that are produced under these new rules, the doctors are required to include a verification under penalty of perjury of the total number of pages reviewed or the total time spent reviewing sub-rosa footage. If a dispute occurs over the page count between the attestation of the parties and the verification of the doctors, the issue is subject to the billing dispute resolution procedure.

• Modifiers are provided if the work is performed by an agreed medical evaluator, psychiatrist, psychologist, toxicologist, or oncologist

It appears that while these amendments attempt to streamline the medical-legal evaluation and the report production process by ensuring only pertinent documents are sent to the evaluator for review and comment, they undoubtedly increase the costs of medical-legal processes. The bulk of the cost increase will be derivative of the $3.00 per page review charge.

These new rules put more onus on the parties to narrow down issues that are present in cases and require the parties to be very selective in submission of documents to a medical-legal evaluator. Analyzing the relevance of records and documents is now of the utmost importance for not only containing costs of the medical-legal process, but also to ensure the medical-legal evaluator will fully comment on the issues at hand.

On the bright side, the record selection and submission process may actually assist the parties in directing the medical-legal examiner’s attention to a specific issue relevant to the case that appear in a sea of records, by only providing pertinent pages. These changes also seem to require the parties to “meet and confer” regarding all records sent by mandating a declaration on behalf of the sending party that they have complied with Labor Code Section 4062.3. As with all change, this will soon become second nature. Until then, it remains to be seen if the “less is more” theory really holds true in the world of medical-legal reports. While it may be designed to reduce the cost of med-legal reporting by limiting the number of pages of medical records to be reviewed, one must recognize this is based on the premise that all parties will agree on what is truly “relevant.” In some cases, Board hearings will be necessary to address parties’ disputes about what records should be sent to the examiner. Given the additional time required to redact medical records, prepare physician cover letters, and meet and confer, any potential cost savings may be de minimis or non-existent.