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Final SB 863 Interpreter Regulations Now in Effect

The Office of Administrative Law has approved the DWC final version of interpreter services regulations, one of the sections that implemented major reform provisions of Senate Bill 863. The interpreter services regulations went into effect on August 13. The final version of the interpreter services regulations differs from the emergency regulations as follows:

The regulations specify different standards for interpreters based on where services are provided. The first standard applies to interpreters providing services at a hearing, deposition or arbitration; while the second set applies for those interpreting for a medical appointment or medical legal exam.

Interpreting at a hearing, deposition or arbitration:
Interpreters must be certified or provisionally certified to qualify to be paid for interpreter services at a hearing, deposition or arbitration. Names of certified interpreters are listed on the State Personnel Board webpage or the California Courts webpage.

Provisional certification indicates that the individual has been deemed qualified to perform interpreter services when a certified interpreter cannot be present. Provisional certification is made by agreement of the parties, based on a finding by the workers’ compensation administrative law judge conducting a hearing that the individual is qualified to interpret at the hearing, or by an arbitrator conducting an arbitration that the interpreter is qualified to interpret at the arbitration.

Interpreting for a medical appointment or medical legal exam:
Interpreters must be certified, certified for medical treatment appointments or medical legal exams, or provisionally certified in order to be paid for interpreter services at a medical treatment appointment or medical legal exam.

Certified interpreters’ names are listed on the State Personnel Board webpage or the California Courts webpage.

Interpreters certified for medical treatment appointments or medical legal exams qualify through successfully passing the Certification Commission for Healthcare Interpreters (CCHI) exam or by passing the National Board of Certification for Medical Interpreters (National Board). A CCHI certification or credential indicates the name of the interpreter and the language for which he or she is certified to provide interpreter services. The certification procedure is detailed on the CCHI website. CCHI credentials are valid for four years and specify the language the interpreter for which the interpreter is certified. The National Board certification is valid for five years.

Interpreters can also be provisionally certified as an interpreter in this category is the claims administrator has given prior written consent to the interpreter providing services or if the injured worker requires interpreter services in a language other than Spanish, Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese. In this case, the physician may use a provisionally certified interpreter if the record of the medical evaluation documents the need and the language required

Interpreter directories are maintained as follows:
–  Certified interpreters are listed at on the State Personnel Board webpage or the California Courts webpage;
–  Certified interpreters for the purposes of medical treatment appointments and medical legal exams are listed in the registry for Certification Commission for Healthcare Interpreters (CCHI) or National Board of Certification for Medical Interpreters (National Board).

Proof of certification may be requested by the claims administrator and shall be provided by the certified interpreter for the purposes of medical treatment appointments and medical legal exams if the interpreter is not listed on the CCHI or National Board website directory.

Interpreter services FAQs with additional information on the new regulations are posted here.

Supreme Court Sets Oral Arguments in Valdez Case

The California Supreme Court has agreed to review the controversial Court of Appeal decision that allowed unauthorized non-MPN physician reports into evidence. The Court has scheduled oral argument for Wednesday, September 4, 2013, at 9:00 a.m., in San Francisco.

After Elayne Valdez filed a claim for industrial injury, the employer admitted her claim to most of the alleged body parts injured and she was sent for medical treatment to the employer’s MPN, where she was seen by Dr. Nagamoto, who treated her from approximately October 9, 2009 to October 31, 2009. Applicant then began treating with Dr. Nario, a non-MPN physician, upon referral from her attorney.

The WCAB in a split en banc decision ruled that non MPN physician reports are not admissible when the employer has properly complied with MPN regulations. The WCAB reasoned that Labor Code 4616.6 provides: “No additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out of this article” and thus precludes the admissibility of non-MPN medical reports with respect to disputed treatment and diagnosis issues, i.e., “any controversy arising out of this article.”

The Court of Appeal reversed and remanded in the unpublished opinion of Elayne Valdez v WCAB and Warehouse Demo Services

In ruling that non MPN reports are indeed admissible, the Court reasoned that “It does not makes sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians. Section 4616.6 states nothing of the sort. If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not.”

Recently enacted S.B. 863 partially addressed this outcome. Effective 1/1/2013 LC 4605 provides that “Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

Study Says Fearful Doctors Order More Tests

Doctors who are the most worried about malpractice suits are more likely than less fearful colleagues to order extra diagnostic tests and refer patients to emergency rooms, even if the real threat of a lawsuit is low, according to a new U.S. study reported in Reuters Health.

The practice of so-called defensive medicine “is one of those things that everyone knows goes on, but doesn’t know how to control,” said Michelle Mello, senior author of the new analysis and a professor of law and public health at the Harvard School of Public Health in Boston. The problem is a driver of excessive healthcare costs, but tackling it effectively requires a better understanding of what drives defensive medicine, Mello and her colleagues write in the journal Health Affairs.

In earlier research, Mello found that medical liability and defensive medicine accounted for approximately $55.6 billion or 2.4 percent of U.S. healthcare spending in 2008. “It’s an area where we can chip away at healthcare costs without causing pain to the patient, since these are services ordered not primarily because doctors think they’re medically necessary,” Mello told Reuters Health.

Past research has surveyed doctors about their behavior or their level of concern about malpractice, according to Emily Carrier, a senior researcher at the Center for Studying Health System Change in Washington D.C. and lead author of the new study. Other researchers have gauged the amount of defensive medicine in everyday practice by looking at insurance claims, she said.

To get a better sense of the reasons doctors may engage in defensive medicine, Carrier, Mello and their coauthors combined both approaches. The researchers started with a database of 1.9 million Medicare claims for 2008 as well as responses to a survey that same year that asked some 3,400 doctors about their malpractice concerns. Among the Medicare patients in the database, there were 29,000 who had visited an office-based physician that year for one of three complaints: chest pain, lower back pain or headache, but who were not later diagnosed with a serious illness related to that complaint. “The three complaints were chosen, in part, because each could indicate relatively minor problems, but could also suggest more severe and even life-threatening issues that would be likely to trigger testing in a risk-averse provider,” Carrier told Reuters Health in an email.

Based on the survey results, the researchers designated doctors as having a low, medium or high level of concern about malpractice, and then linked those doctors using the claims data to the tests they had ordered for patients. The team found that patients with a headache who saw a physician with a high level of malpractice concern were more likely to receive advanced imaging like a CT scan, than patients who saw a doctor less worried about malpractice. More than 11 percent of the headache patients seen by a physician with a high level of concern got additional services and testing, versus 6 percent of patients seen by a physician with a low level of concern.

Almost 30 percent of patients with lower back pain seen by a physician with high malpractice concern were given additional imaging services, compared with 18 percent of patients who saw a physician with low concern.

For chest pains, however, the less worried physicians were about malpractice, the more likely they were to order a stress test. Stress tests can involve running on a treadmill, or taking medication to make the heart work harder. Carrier said physicians who are already nervous about medical liability might avoid this test and instead choose to admit the patient to a hospital for more evaluation.

The study also found that physicians’ level of malpractice concern didn’t change, even if they were practicing in a state with medical liability reforms like caps on how much money patients can claim in damages. “Even with caps or other reform measures, it’ doesn’t make physicians feel safer,” Mello said. “We are finding that the focus should be on how physicians are feeling – that has real implications for future policies.”

OSIP Launches E-filing Portal for Self-Insured Public Agencies

The Office of Self Insurance Plans (OSIP) launched a new e-filing portal for public self-insured annual reports. This new feature enables public agencies to submit their employer’s annual reports and workers compensation claims totals electronically. Both reports are required by regulation and must be filed annua lly by October 1st.

“This e-filing tool provides a faster, more efficient method for public agencies to meet their requirements for self-insurance,” said Christine Baker, Director of the Department of Industrial Relations (DIR). OSIP is a program within DIR.

A user’s guide is posted online containing detailed instructions on how to access the portal, as well as short cuts for e – filers . The OSIP office also mailed u ser IDs and passwords to the registered contact persons for each agency last week . The e-filing portal can be found here.

Self-Insured Public agencies in California employ approximately 1.9 million employees. One of every eight California workers is employed by a public agency, such as a school district, city, county, police, fire, university, local district or member of a joint power authority.

OSIP is responsible for the oversight and regulation of workers compensation self-insurance within California . OSIP establishes and insures that required security deposits are posted by self insurers in amounts sufficient to collateralize against potential defaults by self-insured employers and groups

Comp Industry Mulls Over Change to ICD-10

ICD-10 is the 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD), a medical classification list by the World Health Organization (WHO). It codes for diseases, signs and symptoms, abnormal findings, complaints, social circumstances, and external causes of injury or diseases. The deadline for the United States to begin using Clinical Modification ICD-10-CM for diagnosis coding and Procedure Coding System ICD-10-PCS for inpatient hospital procedure coding is currently October 1, 2014. The deadline was previously October 1, 2013. All HIPAA “covered entities” must make the change.

They might not have to play by all the same rules, but healthcare providers should not forget the impact ICD-10 will have on non-HIPAA covered entities such as workers compensation, nursing homes, and home health agencies. While non-HIPAA entities are not mandated to switch to the new code set on October 1, 2014, the changing tide will sweep them along with the complex transition whether they like it or not. Medical providers should be aware of the struggles of their non-HIPAA partners, especially as the care coordination spectrum expands to include more and more external organizations that may not always be on the same page.

It may seem like those entities that are allowed to stick with ICD-9 would be happy to do so. But in fact, staying with the old code set, which will not be maintained or updated after 2014, might be more trouble than it’s worth. Technically, workers compensation insurance could demand all provider claims to contain ICD-9 codes for as long as they please, but the undue hardship that would place on medical professionals has been deemed too great by some large insurance plans such as the Ohio Bureau of Workers Compensation (OBWC), which is planning to use ICD-10 after the implementation date.

Non-HIPAA entities could also choose to accept ICD-10 codes from providers but crosswalk them back to ICD-9 if they don’t want to upgrade their systems. But the extra work to create accurate and reliable mappings from a very detailed code to a broader ICD-9 one seems a little pointless. “Even though claims professionals don’t have to be immediately fluent in ICD-10, they should be forward-thinking and follow the market in the direction it’s headed,” suggests John Sarich, VP of Strategy for VUE Software in a post for Claims Journal. “It will require some upfront investment, but will ultimately outweigh the lost time that accompanies translating every medical record you encounter.”

And payers such as workers compensation and property and casualty insurance do have a vested interest in the detail and specificity provided by ICD-10, mandate or no. They will spend less time pestering physicians for more and more documentation to validate a claim for an injury, reducing the administrative burden for everyone involved – assuming payer claims processors are properly trained in the new code set and don’t need to return to the provider to ask for clarification.

Insurance industry groups have been planning for the ICD-10 switch alongside their medical peers, with major organizations such as the Work Loss Data Institute and the National Council on Compensation Insurance updating their documentation and handbooks accordingly. But just as medical providers and payers are struggling with the requirements for the complex and costly transition, non-HIPAA entities are also facing challenges.

Feds Advance Pay for Performance Fee Schedule

Decades ago, physicians were not paid by a fee schedule. Instead, they were paid for their “usual and customary” fees, which was an open-ended essentially unregulated payment scheme. It was replaced with a pay for procedure scheme by government and most insurance companies. This is the basis of our current workers’ compensation Official Medical Fee Schedule. Most procedures are listed in the OMFS, next to a formula for computing the maximum fee for the procedure. The more procedures performed, the more the fee. The physician is not paid for success or the outcome.

An alternative to the current pay for procedure fee schedule is a pay for performance system, where the formula for payment also takes into account the quality of the physician’s work, or the outcome. This method will theoretically improve medical success. Physicians have been dreading this next step, and most would prefer to be paid for procedures irrespective of the outcome.

California Health Line reports that a key House subcommittee approved a bipartisan proposal to repeal Medicare’s flawed physician payment formula and replace it with a system that rewards doctors for high-quality care. Under the bipartisan proposal. Medicare physician reimbursements would grow by 0.5% annually over five years. Starting in 2019, Medicare would switch to an enhanced fee-for-service system that would provide physicians with updates and payment incentives based on their performance on certain quality measures. The quality measures — which would compare physicians with others in their subspecialty — would be based on, care coordination, clinical care, patient experience, patient population and safety.

The proposal also directs HHS Secretary Kathleen Sebelius to review and finalize the quality measures for the upcoming year by Nov. 15 of each year. In addition, the HHS secretary would be required to develop codes for complex chronic care management services and develop a fee schedule for those services starting in 2015.

The draft proposal calls for providing physicians with feedback on their performance in meeting the quality measures in “as real time as possible, but at least quarterly.”

The California workers’ compensation fee schedule under SB 863 is based upon the current Medicare RBRVS system. It would seem logical that as the federal system migrates to a pay for performance system, so would the OMFS.

L.A. Deemed Nation’s Hot Spot for Health Care Fraud

A CNN Investigation into fraudulent drug rehabilitation clinics concluded that the populous Los Angeles region is one of the nation’s top hot spots for health care fraud, and former state officials agree it is also ground zero for the rehab racket. To uncover this story on widespread fraud linked to California’s drug rehab program, CNN’s Special Investigations Unit has teamed up with the independent, nonprofit Center for Investigative Reporting as part of Anderson Cooper AC360’s “Keeping them Honest” reports.

Investigative reporters were were stationed in parked cars outside the offices of Able Family Support in the San Fernando Valley, counting the people who came and went on April 4. The clinic, reimbursed by taxpayers for each client it sees, offers in-person drug and alcohol counseling. And Able Family is thriving, according to its billing records.

But according to the reporters, no more than 30 people trickle into the rehab center on April 4 until the doors are locked 10 hours later.

The counting resumed a month later when the clinic submitted its bill to Los Angeles County seeking reimbursement — not for 30 people, but for 179. The government promptly paid it — $6,400 for clients Able Family reported it saw April 4. When told of the April 4 stakeout at Able Family, county regulators said they now have questions about whether the payments were legitimate. The findings merit a closer review but “look very incriminating,” said a spokeswoman for Los Angeles County’s substance abuse department. Able Family operates a small satellite clinic near downtown, the county noted — but a security guard there said about 25 people came to that office each day.

The simple stakeout on April 4 raises questions about the adequacy of government oversight of the program to help the poor and addicted, built on an honor system in which honor often is lacking. Oversight is marred by infrequent and cursory inspections and by a failure to act even when red flags appear. CIR and CNN have exposed how clinics use coercion and forgery to defraud a taxpayer-funded program meant to help struggling addicts..The investigation also found that people ineligible to run Medi-Cal clinics did not just slip through the cracks — they walked through doors regulators left wide open.

The Able Family Support Clinic’s director, Alexander Ferdman, would not explain the discrepancy. “I can’t explain, because you will cut and paste and edit, and my answers will be to a totally different question,” Ferdman said in a telephone interview, before hanging up. Felons are supposed to be blocked from running clinics. That didn’t stop Ferdman. He entered the rehab racket two years after leaving a Texas prison, where he served time for orchestrating an organized crime scam. Over the course of a decade, he built his clinic into a $2 million-a-year operation — all from taxpayer money. Prosecutors in Texas had pegged Ferdman as the ringleader of a scam that robbed auto insurers of millions. An indictment from the Travis County district attorney’s office says a team of fixers staged crashes and recruited actual crash victims as pawns to generate fake legal and medical bills. One witness described Ferdman as the man who paid off operatives from a briefcase full of cash.

CNN claims that Drug Medi-Cal paid out $94 million in the past two fiscal years to 56 clinics in Southern California that have shown signs of deception or questionable billing practices, representing half of all public funding to the program, CIR and CNN found. Over the past six years, more than half a billion dollars have poured into the program statewide.

AIG Ends Stand-Alone Excess Comp Insurance

Excess workers comp insurance is a challenging line to underwrite because it guarantees the payment of catastrophic worker claims that can remain open for decades.

But it’s precisely for that reason that self-insured employers want to purchase the excess coverage from an insurer that will be around for decades to come, experts say. It’s also why few underwriters offer the insurance as a stand-alone product.

And now, American International Group Inc. disclosed in a 2012 Securities and Exchange Commission filing that it had ceased writing stand-alone excess workers comp cover because of its extremely long tail and risks that make it “one of the most challenging classes of business to reserve for.”

Issues that escalate costs – such as obesity, opioid pain medication usage and Medicare set-aside requirements – have pushed excess workers comp underwriters to raise their prices and demand that clients assume greater retentions.

CWCI Says Industrial Obesity Claims On the Way

A new California Workers’ Compensation Institute (CWCI) report suggests that the number of work injury claims involving obesity could increase sharply, along with the associated costs, following the recent vote by the American Medical Association (AMA) to reclassify obesity as a treatable disease.

In mid-June, the AMA approved a resolution reclassifying obesity as “a disease state,” effectively declaring that one third of all Americans suffer from a medical condition that requires treatment, a move that is widely expected to increase pressure on doctors to address the condition when treating obese patients, and on health care payers to pay for obesity consultations and treatment. And that designation, according to the report, will likely affect diverse areas of employment, including the Americans with Disability Act and Equal Employment Opportunity Commission claims; life, disability, and workers’ compensation insurance; weight bias; insurer and provider responsibility; physician reimbursement; and diagnostic and procedure coding.

In workers’ compensation, obesity has historically been a co-morbidity – a condition that occurs at the same time, but usually independent of, an injury or illness. In the past, a medical provider might include an obesity co-morbidity code on their medical bill if they felt the condition needed to be addressed so that the work injury could be treated and the patient could recover and return to work (e.g., if an obese injured worker needed to lose weight before they could have back surgery.) Even as a co-morbidity, however, obesity in workers’ compensation has gone largely unreported. A CWCI survey from 2011 found that even though 28% of injured workers reported that they were obese, only 0.9% of the job injury claims from those workers included an obesity co-morbidity diagnostic code, indicating that obesity has only infrequently been deemed a condition that needed to be addressed in order to treat most work injuries and illnesses.

CWCI says that may change, however, if medical providers feel a greater responsibility to counsel obese patients about their weight and to treat the condition, especially if there is a greater likelihood that they will be paid for doing so. Aside from its status as a comorbidity, obesity could become a primary workers’ comp diagnosis, particularly in sedentary jobs like office work, or long-haul trucking, according to the report.

“In such scenarios the viability of the claim would likely hinge on proving that the work actually caused the obesity, which would be an issue ripe for dispute and which could lead to additional litigation,” the report states. “In light of the increasing evidence of genetic pre-disposition for various medical conditions, defining causation and relative causation will be critical in claims involving obesity, and also may arise in other employment areas such as pre-employment screening.”

The “disease” designation doesn’t bode well for employers or for long-term workers’ comp rates employers may be faced with paying if claims do rise, said Jerry Azevedo, a spokesman for the Workers’ Compensation Action Network, a group that represents the interests of employers. “The implications are grim, especially if statutory or case law proves ineffective in limiting employers’ liability to true industrial causation or direct compensable consequences,” Azavedo said. “Unfortunately, there’s a tension created through litigation in the workers’ comp system, where plaintiffs’ lawyers want to make everything under the sun a part of the injury claim to run up the bills and inflate benefits. Employers are forced to defend against that and have fought hard for policies that reinforce what should really just be common sense – which is employers should pay for what was directly caused by the work injury. ”

Scientists Investigate Cause of Arthritis Pain

Arthritis is a debilitating disorder with pain caused by inflammation and damage to joints. Yet, according to an article in Science Daily the condition is poorly managed in most patients, since adequate treatments are lacking — and the therapies that do exist to ease arthritis pain often cause serious side effects, particularly when used long-term. Any hope for developing more-effective treatments for arthritis relies on understanding the processes driving this condition.

A new study in the Journal of Neuroscience by researchers at McGill University adds to a growing body of evidence that the nervous system and nerve-growth factor (NGF) play a major role in arthritis. The findings also support the idea that reducing elevated levels of NGF — a protein that promotes the growth and survival of nerves, but also causes pain — may be an important strategy for developing treatment of arthritis pain.

To investigate the role of these abnormal sympathetic fibres, the McGill researchers used an agent to block the fibres’ function. They found that this reduced pain-related behaviour in the animals. “Our findings reinforce the idea that there is a neuropathic component to arthritis, and that sympathetic nerve fibres play a role in increasing the pain,” said McGill doctoral student Geraldine Longo, who co-authored the paper with Prof. Afredo Ribeiro-da-Silva and postdoctoral fellow Maria Osikowicz.

“We are currently using drugs to prevent the production of elevated levels of NGF in arthritic rats; we hope that our research will serve as a basis for the development of a new treatment for arthritis in the clinic,” said Prof. Ribeiro-da-Silva.

Apportionment of permanent disability in workers’ compensation cases can be based upon causation. As more information about the causation of arthritis is known, opportunities for employers to seek apportionment is enhanced.