Category: Daily News

On April 2020 Rogelio Trigueros filed a claim for workers’ compensation benefits claiming injury to his upper extremities, shoulders, arms, hand and fingers while employed as a farm laborer for respondent Gonzalez Ag., Inc.

On May 4, 2020, employer’s insurance carrier mailed a Notice Regarding Delay of Workers’ Compensation Benefits from Kansas City, Missouri, to petitioner in California.

Sixteen days later, Trigueros requested and obtained a panel of three chiropractic Qualified Medical Evaluators eligible to evaluate his workers’ compensation claim.

The Employer challenged the timing of his request for a QME panel and the matter proceeded to trial, resulting in the workers’ compensation administrative law judge concluding the panel was valid.

Reconsideration was granted, with the WCAB panel agreeing with employer. The WCAB replaced the WCJ’s finding with its own finding that the QME panel was invalid because petitioner prematurely requested it before waiting 20 days from mailing of the Delay Notice. In doing so, the WCAB stated it applied its own rules as set forth under California Code of Regulations, title 8, section 10605 (WCAB rule 10605) rather than the more general CCP § 1013 mail delay provisions.

In its prior en banc decision in Messele v. Pitco Foods, Inc. (2011) 76 Cal.Comp.Cases 956 and as established under section 5316, the WCAB’s own rules govern service of process and any applicable extensions of time to act where they differ from the more generally applicable provisions under CCP § 1013.

However, the Court of Appeal reversed the WCAB and remanded the case of Tigueros v WCAB and Gonzalez Ag., (March, 2022)

In granting the petition for writ of review, the court notified the parties that it appeared the WCAB based its determination on the out-of-state location where the claims administrator mailed the triggering delay notice from instead of the location where it served the notice on petitioner.

WCAB rule 10605 provides that the time added for service is “(1) Five calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is within California; (2) Ten calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside of California but within the United States;

And that, pursuant to WCAB Rule 10605(a)(1), the WCAB instead should have added only five days to the statutory 10-day waiting period, for a total of 15 days, before considering the first day a party may validly request a QME panel.

The WCAB responded that it agreed and requested the Court of Appeal to annul the WCAB’s decision and remand the matter for further proceedings.

According to the National Alliance of State Pharmacy Associations, more than a dozen states have expanded what pharmacists can do to include testing and treating people for illnesses such as strep throat, flu, and urinary tract infections and preventing HIV. Some states allow pharmacists to prescribe oral contraceptives or drugs to help people quit smoking. Typically, pharmacists have prescribing authority under agreements with doctors or rules called statewide protocols.

But a report by Kaiser Health News says that a limited number of states have gone further, allowing pharmacists to prescribe medications on their own to treat a broad range of conditions for which there are rapid point-of-care tests, if it’s appropriate based on clinical guidelines.

“We’re seeing more states looking at direct prescribing authority now as opposed to collaborative practice agreements,” said Allie Jo Shipman, director of state policy at the National Alliance of State Pharmacy Associations. The alliance offers point-of-care testing and point-of-care treating training programs for pharmacists and pharmacy students.

The Biden administration, which has leaned on pharmacies to help battle the covid pandemic by administering vaccines and tests, is now calling for a limited number of pharmacies with retail clinics that employ doctors or other health care workers with prescribing authority to directly provide medication rapidly to people who test positive for the virus. The “test-to-treat” program is designed to make sure that people with covid get a course of antiviral medication quickly because it is most effective if used within five days of when someone shows symptoms.

But physicians don’t necessarily welcome this development. Doctor groups have long objected to the taking on of certain types of patient care by pharmacists, nurse practitioners, physician assistants, and other nondoctors unless it is overseen by or approved by physicians.

In November, the American Medical Association, which represents doctors, announced that since 2019, it had successfully opposed more than 100 legislative actions that would have expanded nonphysicians’ scope of practice, called scope creep. The group also issued a statement criticizing the Biden administration’s plan to allow pharmacy-based clinics to prescribe covid antiviral medications, saying that the program poses a danger to patient safety and risks negative health outcomes. And the AMA unsuccessfully opposed a federal decision to let pharmacists give covid vaccines to children younger than 18.

Meanwhile, the American College of Physicians, which represents internists, announced it “opposes independent pharmacist prescriptive privileges and initiation of drug therapy outside of a collective practice agreement, physician standing order or supervision, or similar arrangement.”

The AMA didn’t respond to questions about independent pharmacist prescribing, and the ACP declined to comment on its policy.

But are physicians correct that patient safety is at risk if a doctor isn’t involved in prescribing decisions? Pharmacists say that they want to provide care in line with their training and skills and that they know their limits. And they note that timely prescribing is vital for treating covid and other infectious diseases.

They also note that pharmacists are increasingly part of the multidisciplinary clinical teams that direct patient care at hospitals and in health care systems.

“Pharmacists are the professionals that are the most trained to deal with drug interactions,” said Rita Jew, a pharmacist who is president of the Institute for Safe Medication Practices, a nonprofit that focuses on preventing medication errors. “We monitor patients for both efficacy and side effects. So from that perspective, it’s not a safety concern. Delay in treatment is a concern.”

Many pharmacists are eager to expand their menu of patient services, but payment remains a problem. Pharmacists aren’t generally recognized as service providers under Medicare and don’t typically receive payment when they spend time evaluating, testing, or treating patients. Many private insurers follow Medicare’s lead on payment.

Dr. Jeffrey Singer, a general surgeon and a senior fellow at the libertarian Cato Institute, wrote a recent blog post suggesting that doctors who object to nonphysician prescribing may be more worried about competition than patient safety.

“Rather than work to prevent laws that could meet the needs of patients, the onus is on the profession to persuade people that they need to see a doctor,” Singer said in an interview, adding that he has relied on pharmacists’ expertise in his practice. “I ask them, ‘Is there any particular problem with this drug?’ They have the software. And that’s what they’re trained to do.”

FAIR Health is a national, independent nonprofit organization dedicated to bringing transparency to healthcare costs and health insurance information through data products, consumer resources and health systems research support. FAIR Health possesses the nation’s largest collection of private healthcare claims data, which includes over 36 billion claim records and is growing at a rate of over 2 billion claim records a year.

The new FAIR Health white paper containing the fifth annual edition of FH® Healthcare Indicators and FH® Medical Price Index, shows that telehealth utilization grew nationally 7,060 percent from 2019 to 2020, an increase driven by the COVID-19 pandemic and the limits imposed on certain in-office services, coupled with the greater risk of infection from in-person encounters.

FH Healthcare Indicators reveal trends and patterns in the places where patients receive healthcare. Focusing on alternative places of service – retail clinics, urgent care centers, telehealth and ambulatory surgery centers (ASCs) – as well as emergency rooms (ERs), FH Healthcare Indicators evaluate changes in utilization, geographic and demographic factors, diagnoses, procedures and costs.

Among the key findings:

– – Due to the pandemic and the limits imposed on certain in-office services, coupled with the increased risk of infection from in-person encounters, telehealth grew in 2020 on a scale unseen in previous years. Telehealth utilization increased nationally 41,919 percent from 2015 to 2020, a more than 40-fold increase over the growth of 1,019 percent from 2014 to 2019 reported in last year’s edition. From 2019 to 2020, national growth was 7,060 percent.
– – In all other places of service studied for changes in utilization, utilization decreased from 2019 to 2020, probably because of the impact of COVID-19. Utilization fell 38 percent in ASCs, 30 percent in ERs, 16 percent in urgent care centers and 4 percent in retail clinics.
– – Among the places of service studied, telehealth held the highest percentage of medical claim lines in 2020, with 15.41 percent of all medical claim lines nationally. The comparable percentages for the other places of service were 2.07 percent for ERs, 1.31 percent for urgent care centers, 0.64 percent for ASCs and 0.05 percent for retail clinics.
– – In 2020 as in previous years, more claim lines were submitted for females than males in most age groups in the places of service in which FAIR Health studied gender-related patterns—retail clinics, urgent care centers, telehealth, ASCs and ERs.
– – However, in some places of service, such as retail clinics, urgent care centers, ASCs and ERs, the gap between males and females narrowed. For example, in ERs, in the age group 61-70, the male and female shares were approximately equal (50 percent) in 2020, a change from 2019, when the female share had been 52 percent and the male share 48 percent. This trend bears monitoring in the future.
– – In 2020, the five states in which retail clinic claim lines constituted the greatest percentage of medical claim lines were (from greatest to least) Arkansas, Missouri, Rhode Island, Maine and Minnesota. In 2018, Minnesota had ranked first in this list; in 2019, it ranked third, and in 2020 it fell to fifth.
– – Connecticut, which had been fourth from the bottom in its use of telehealth as a percentage of all medical claim lines by state in 2019, rose to fifth from the top in 2020.
– – In 2020, exposure to communicable diseases joined the list of most common diagnostic categories in retail clinics, urgent care centers and telehealth. This category largely was associated with testing and/or treatment for COVID-19 when a patient was exposed to the condition.
– – Across offices, urgent care centers and retail clinics in 2019, urgent care centers had the highest median charge amount for CPT®2 99203 (30-44-minute new patient office visit), but in 2020 the median charge for an office ($226) was slightly higher than that for an urgent care center ($221).

FH Medical Price Index reports shifts in costs and facilitates useful comparisons among medical prices in six procedure categories from May 2012 to November 2021:

– – Of the six procedure categories, hospital E&Ms had the greatest percent increase in charge amount index, seven percent, and in allowed amount index, five percent.
– – Radiology and medicine each had the smallest percent increase in charge amount index, two percent.
– – Radiology had the smallest percent increase in allowed amount index, one percent.

FAIR Health President Robin Gelburd stated: “This year’s edition of FH Healthcare Indicators and FH Medical Price Index opens a window on the impact of the COVID-19 pandemic on the nation’s healthcare system. We hope that this new edition, like those in previous years, continues to inform decision making throughout the healthcare sector by payors, providers, government officials, policy makers, academic researchers and others.”

As directed by the Joint Legislative Audit Committee, the California State Auditor conducted an audit of the State’s licensure and oversight of hospice agencies and found that the State’s weak controls have created the opportunity for large-scale fraud and abuse.

Hospice is a specialized form of interdisciplinary health care primarily designed to provide palliative care and alleviate the physical, emotional, social, and spiritual discomforts of a person who is experiencing the last phases of life because of a terminal disease.

The fraud indicators that were found particularly in Los Angeles County include the following:

– – A rapid increase in the number of hospice agencies with no clear correlation to increased need.
– – Excessive geographic clustering of hospices with sometimes dozens of separately licensed agencies located in the same building.
– – Unusually long durations of hospice services provided to individual patients.
– – Abnormally high rates of still-living patients discharged from hospice care.
– – Hospice agencies using possibly stolen identities of medical personnel.

According to the report “These indicators strongly suggest that a network or networks of individual perpetrators in Los Angeles County are engaging in a large and organized effort to defraud the Medicare and Medi-Cal hospice programs. Such fraud places at risk the extremely vulnerable population of hospice patients.”

Los Angeles County has experienced a 1,500 percent increase in its number of hospice agencies since 2010. It had more than six-and-a-half times the nationwide average number of hospice agencies relative to its aged population in 2019. Although the majority of hospice services were provided by nonprofit organizations in the past, this recent wave of growth is almost exclusively in for-profit companies.

Investigators identified several areas within Los Angeles County with extremely high concentrations of hospice agencies, including individual buildings supposedly housing dozens of hospice agencies. In fact, the California Department of Public Health reported a single building in the community of Van Nuys as having more than 150 licensed hospice and home health agencies – a number that exceeds the structure’s apparent physical capacity.

Further, numerous indicators suggest that many of these hospice agencies may have been created to fraudulently bill Medicare and Medi-Cal for services rendered to ineligible patients or services not provided at all. This type of fraud can be lucrative. For example, a hospice agency that bills for 20 patients at the most common rate can collect about $122,000 per month.

Despite these widespread problems in the hospice program, Public Health and the two state agencies primarily responsible for identifying and investigating hospice fraud in Medi-Cal – the California Department of Health Care Services and the California Department of Justice – have not sufficiently coordinated their efforts.

In October 2021, California passed a general moratorium on licensing new hospice agencies beginning Jan. 1, 2022, and lasting until one year after the publication of the auditor’s report.

The Centers for Medicare and Medicaid Services (CMS) has released an updated Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide (Version 3.6, March 15, 2022).

Clarification has been provided, in this new update, regarding the use of non-CMS-approved products to address future medical care (Section 4.3), as well as documentation and re-review tips (Sections 9.4.1.1 10.2, and 16.1).

By way of background, CMS added Section 4.3 into the WCMSA Reference Guide Version 3.5 in January 2022 and the agency discussed the changes as part of its recent WCMSA update webinar.

This section, titled “The Use of Non-CMS-Approved Products to Address Future Medical Care,” sets-forth CMS’s policy and position regarding what is commonly referred to as “evidenced-based” or “WCMSA non-submit” MSAs which are future medical arrangements that are not submitted by the settling parties to CMS for the agency’s review and approval, although the settlement meets CMS’s WCMSA review thresholds.

As part of Section 4.3, CMS states that they view these arrangements, as “a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement” and when a settlement includes a non-CMS approved MSA, CMS may deny payment for Medicare covered medical services related to the WC injuries until it is satisfied that the entire net settlement amount was spent for claim related treatment.

After CMS introduced Section 4.3 in January, two questions that remained unclear concerned (1) whether CMS’s policy would apply retroactively or prospectively and (2) whether CMS intended this policy to apply to non-CMS approved MSAs that parties may include in settlements that do not meet CMS’s WCMSA review thresholds.

The new Reference Guide 3.6, CMS has now added language to Section 4.3 attempting to clarify these two issues.

Specifically, as to the first question, CMS has added language indicating that the policy set forth in Section 4.3 applies to “all notifications of settlement that include the use of a non-CMS-approved product received on, or after, January 11, 2022.”

Regarding the second question, CMS has added language stating that it “does not intend for this policy to affect any settlement that would not otherwise meet its WCMSA review thresholds,” although it reminds the settling parties that its “comment does not relieve the settling parties of an obligation to consider Medicare’s interests as part of the settlement.”

In the third paragraph of Section 4.3 it is noted that CMS has changed what originally read as “will” to “may at its sole discretion deny payment for medical services related to WC injuries … ”

From these changes, it appears CMS has softened the original language contained Section 4.3 released in WCMSA Reference Guide Version 3.5 which, presumably, were made to provide CMS the flexibility to assess the amount allocated in non-CMS approved MSAs.

This would seem to align with one point CMS discussed as part of its recent WCMSA webinar. Specifically, on the webinar CMS indicated that if the claimant can demonstrate that a non-CMS approved MSA was properly and fully exhausted, it may review the allocation to determine if the amount was reasonable. If the allocation is determined to be reasonable, then CMS may choose not to require full exhaustion of the net settlement amount.

However, it may be reasonable to assume that CMS is likely to apply the CMS WCMSA allocation review standards as the baseline to measure reasonableness and, consequently, unless the allocation was priced in accordance with those standards, there is significant risk that CMS would disagree with the allocation amount upon exhaustion.

CMS’s updated language in Section 9.4.1.1 stating that medical records are required, even in denied cases, is a culmination of CMS’s trend to formally tighten its review process to make the approval of zero MSAs more challenging. Further, CMS’s update to its re-review process as noted in Section 16.1 may prove particularly problematic given the current absence of a formal appeals process.

In conclusion, section 4.3’s addition to the Reference Guide can be viewed as CMS essentially putting the industry on notice that it may enforce its EBMSA/non-submit policy against applicable settlements that do not include a CMS-approved WCMSA after January 11, 2022.