Tag: 2017 News

In 2015 the Court of Appeal upheld the constitutionality of the IMR process in one of the most closely watched cases in California workers’ compensation. The published case of Stevens v WCAB involved Frances Stevens who tripped and broke her foot as she carried boxes of magazines. She was diagnosed with chronic or complex regional pain syndrome and claims to be mostly confined to a wheelchair and was awarded total permanent disability.

For several years she had the assistance of a home health aide. In late 2012, the aide was injured. This led the PTP to submit an RFA to SCIF for a replacement aide which was submitted to UR and denied. The request was also denied after the IMR process. Stevens appealed the IMR decision, but the WCJ found there was no provision for a reversal since the labor code provides only limited circumstances upon which IMR can be reversed.

Stevens challenged constitutionality of the IMR process. In response the WCJ said “section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB denied reconsideration and agreed that it could not rule on the constitutional issue saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case.

The First District Court of appeal concluded “that her state constitutional challenges fail because the Legislature has plenary powers over the workers’ compensation system under article XIV, section 4 of the state Constitution (Section 4). And we conclude that her federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard.”

Although Stevens may have lost the battle, she may not have lost the war since she was given a second chance to prove her case on the merits. The Court of Appeal stated “we also conclude that the Workers’ Compensation Appeals Board (the Board) misunderstood its statutory authority in one respect when it reviewed Stevens’s appeal. The Board concluded that it was unable to review the portion of the IMR determination that found, “Medical treatment does not include . . . personal care given by home health aides . . . when this is the only care needed.” Under the 2013 reforms, however, the Board is empowered to review an IMR decision to consider whether care was denied without authority because the care is authorized under the MTUS. (§ 4610.6, subd. (h)(1) & (5).) We therefore remand this matter to the Board to consider whether Stevens’s request for a home health aide was denied without authority.”

And indeed the WCAB recently ruled in its Opinion and Decision After Remittitur “that the 2009 Guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by Ms. Stevens.”

For that reason it concluded “that the Independent Medical Review (IMR) determination upholding denial of the request for a home health aide was ‘adopted without authority’ by the Administrative Director of the Division of Workers’ Compensation because the portion of the 2009 Medical Treatment Utilization Schedule (hereinafter “MTUS”) Chronic Pain Medical Treatment Guideline (hereinafter “2009 Guideline”) applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long standing workers’ compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury.”

In arriving at this conclusion the WCAB interpreted the language of the Court of Appeal in the published decision as authorizing the WCAB to have “considerable” authority over IMR. “Thus, the Court held that the Appeals Board has considerable authority to review both factual and legal questions in its determination of whether an IMR determination was adopted without authority or based on a plainly erroneous fact not subject to expert opinions. We conclude that the 2009 Guideline is contrary to California law and the IMR determination that relied on it was therefore adopted without authority.”

The Findings and Order of the WCJ that issued on May 27, 2014 was rescinded, and that this matter was returned to the trial level for further proceedings in accordance with this decision.

Harbor Health Systems, a One Call Care Management company, announced that it is one of the first companies to receive approval from the California Department of Workers’ Compensation to offer telemedicine through its medical provider networks (MPNs).

“This approval is a positive step forward in improving access to high quality care for injured workers,” said Linda Lane, president of Harbor Health Systems.

“We can now offer the capability to patients and to payers to search the Harborsys MPN provider directory and find high performing physicians who offer telemedicine, or to be directed to these physicians by our Medical Access Assistant staff. The telemedicine capability and the ability to find physicians who offer this service is especially important in rural areas, as well as to make care immediately accessible twenty-four hours a day, 365 days a year.”

Through the video teleconferencing capabilities enabled by Harbor’s telemedicine partners, injured workers gain immediate access to treatment, eliminating unnecessary costs and delays.

For the employer, using telemedicine results in less downtime and reduces transportation costs. Injured employees who find it difficult to travel to the doctor’s office can now obtain qualified consultations from their home or worksite, keeping the treatment plan on track and moving forward. Improved patient engagement and access to expedited and efficient care reduces the risk of legal actions that drive up claim costs.

Harbor’s MPN networks cover approximately 2 million employees in the state of California and Harbor plans to roll out the new telemedicine product across its book of business. GENEX and Arissa Cost Strategies are two Harbor clients already reaping the rewards of the new offering.

“Telemedicine capabilities are important to our ability to provide superior management of care for workers’ compensation injuries,” noted Kathleen Torres, President of Arissa Cost Strategies. “With telemedicine, the injured employee receives immediate response, leading to immediate care, which expedites care and resolution for their injury.”

“Paired with case management, telemedicine allows for early intervention and a stronger interdisciplinary care approach,” said Ron Skrocki, senior vice president, product management and development at Genex Services. “This leads to better communication and adherence to the treatment plan, and improved patient compliance, which results in a safe and efficient return for the injured worker.”

Workers’ compensation medical treatment requests must be supported by scientifically based evidence published in peer reviewed literature, literally hundreds if not thousands of publications. So how might a busy practitioner keep up with this literature?

U.S. researchers, reporting in the Annals of Internal Medicine, say that “smart” search programs can ease the process of systematically reviewing new medical research, a key step in getting the best practices from laboratories to doctors’ offices.

The Institute of Medicine (now the National Academy of Medicine) says clinical practice guidelines should be based on a systematic review of the evidence, lead author Dr. Paul Shekelle from RAND Corporation in Santa Monica, California, told Reuters Health by email, and reported in the story by Reuters.

Systematic reviews are a cornerstone of evidence-based care and a necessary foundation for care recommendations to be labeled clinical practice guidelines. However, they become outdated relatively quickly and require substantial resources to maintain relevance. One particularly time-consuming task is updating the search to identify relevant articles published since the last search.

Typically, researchers and their assistants perform computer searches to identify anywhere from a few to thousands of new research studies, then they determine which ones are relevant and assemble the information into updated guidelines and recommendations.

Shekelle and colleagues thought machines could do more of the job and do it faster, so they compared machine-learning methods with the standard search methods for identifying new information.

They tested the idea on three health conditions: gout, low bone density and osteoarthritis of the knee. The smart search program “learned” which key terms to look for by analyzing words from studies that were included in prior reviews on each topic.

In all three cases, computers – provided only with the titles and summaries of articles included in previous reviews – reduced the number of articles researchers had to screen further by 67 to 83 percent, according to the results in Annals of Internal Medicine.

“Machine learning methods are very promising as a way to reduce the amount of time and effort for the literature search, which in turn should make it easier to update the systematic review, which in turn can facilitate keeping clinical practice guidelines up to date,” Shekelle said.

The approach would “shorten the time from completion of research studies to adoption of effective treatments in clinical practice,” said Dr. Alfonso Iorio from McMaster University in Hamilton, Ontario, Canada, who coauthored an editorial accompanying the report.

“In the near future, artificial intelligence will also be used to match to individual need with the best available health care intervention – one necessary step to get this is proper classification on existing and newly generated knowledge,” Iorio said.

Dr. Eduardo Anguizola – who is facing multiple counts of insurance fraud filed by Orange County prosecutors – has filed a federal lawsuit that claims SB 1160 and Labor Code 4615, the anti-fraud law that took effect January 1, violates his rights to due process of law and to make a contract and to hire and pay his criminal defense attorneys, among other arguments.

Other plaintiffs in the federal case include Vanguard Medical Management Billing, One Stop Multi-Specialty Medical Group, One Stop Multi-Specialty Medical Group & Therapy and Nor Cal Pain Management Medical Group: medical billing companies and other businesses connected to the doctor’s practice.

His request for a preliminary injunction halting the provisions of SB 1160 is scheduled for hearing on June 29 before Federal Judge George H. Wu.

Judge Wu previously ruled on the constitutional challenge to the re-instatement of the $100 lien filing fee as a result of SB 863 several years ago in the Angelotti Chiropractic case. He issued an injunction against enforcement of the law declaring the filing fee to be unconstitutionally applied to the plaintiffs who filed the case. He was later overturned by the Ninth Circuit Court of Appeals in the published case of Angelotti Chiropractic v Christine Baker and the lien filing fee was reinstated after several years delay.

He will now rule on the Anguizola constitutional challenges to a new and different lien law on June 29.

The California Attorney General has now filed a responsive pleading arguing against the relief requested by the Anguizola plaintiffs.

SB 1160 provides that liens are automatically stayed upon the filing of criminal charges against that physician or provider for an offense involving fraud against the workers’ compensation system, medical billing fraud, insurance fraud, or fraud against the Medicare or Medi-Cal programs.

The California Attorney General argues in opposition that “Plaintiffs’ facial challenges require them to demonstrate that under no circumstances can Section 4615 be applied in a constitutional manner to anyone, a showing they have not made.”

“Even if their claims were treated as as-applied challenges, Plaintiffs have not shown a likelihood of success, failing to establish various elements of their claims under their respective factual circumstances. And Plaintiffs have failed to establish that any of them will suffer any harm – let alone irreparable harm – in the absence of a preliminary injunction. Because they have failed to establish either a likelihood of success or irreparable harm,”

With respect to the claimed constitutional issue of the automatic stay violating Dr. Anguizola’s right to hire a criminal attorney, the defense argues “While a criminal defendant who can hire his own attorney has the right to be represented by the attorney of his choice, that right does not go beyond “the individual’s right to spend his own money to obtain the advice and assistance of . . . counsel.” (citations omitted)

“Nothing on the face of Section 4615 interferes with a criminal defendant’s ability to hire an attorney. The statute does not prevent a medical provider charged with workers’ compensation fraud from using other assets and financial resources to fund his or her defense, including previously reimbursed lien filings. And the liens subject to the automatic stay are merely contingent, subject to potentially years of delay before payment or outright denial.”

Thus for these and other reasons specified in the responsive filing, the Attorney General concludes that the plaintiffs “are not entitled to a preliminary injunction halting the enforcement of Section 4615.”

In a few weeks the industry will know how Judge Wu views these issues.

The Los Angeles Times reports that agents for the Federal Bureau of Investigation raided Proove Biosciences, an Irvine company that sells a DNA test it claims can determine whether a patient is at risk of addiction to opioid painkillers. In a press conference, FBI spokeswoman Cathy Kramer said the raid was part of an ongoing investigation concerning healthcare fraud. No arrests were made.

Anonymous company employees told STAT News, a healthcare news site, that about 25 agents arrived with a search warrant and spent several hours hauling out boxes of documents. The employees had been told by Proove to stay home for the day.

Proove maintains that its test can determine a patient’s risk of addiction with 93% accuracy. But, in December, an article published by STAT questioned the scientific basis for Proove’s test. Rockefeller University’s Dr. Mary Jeanne Kreek, who researches genetic links to addiction, told STAT that Proove’s test was “hogwash.” In February, the site said Proove’s method of paying physicians to participate in clinical trials might violate anti-kickback laws. That article included a statement from CEO Brian Meshkin, who said that “Proove is acting within the confines of the law – [and intends] to follow both the letter and spirit of the law.”

For doctors, the brochure from the California medical laboratory sounded like easy money: $30 for every person enrolled in a study of genetic tests meant to help select the best pain medication for each patient. A typical physician could make $144,000 a year in “research fees.”

And authorities have asserted that “research fees” are hidden kickbacks to physicians in other medical industries such as compounded pharmaceuticals.

For example, Jacksonville-based WELL Health Pharmacy and its owner have agreed to pay more than $3 million, as well as 50% of its net profits for five years, to resolve concerns that it knowingly filled prescriptions that were written by referral sources that had a financial interest in the prescriptions.  While these referring physicians were purportedly participating in a “research study” related to compounded prescriptions, the government contends that this research study was a sham and that the compensation far exceeded fair market value.

And Topical Specialists, a pharmacy based in Jacksonville, Florida, has agreed to pay the government more than $2.2 million for its role in submitting prescriptions that were tainted by so-called “research fees,” which was an elaborate guise for paying physicians to write prescriptions. This settlement is directly related, and in addition to, the WELL Health settlement described above.  

And there remain several compound pharmacies who advertise “clinical trials” programs today on their websites.  Greenpark Compounding Pharmacy in Houston Texas, McGuff Compounding Pharmacy in Santa Ana California, Pharmacy Creations in Randolph New Jersey, MasterPharm in New York are a few examples of some who can be identified by a Google search.  It would require an intense investigation to discover if any compounding pharmacy is engaged in a hidden kickback scheme disguised as research fees to physicians, or if it is legitimate medical research.

Proove Biosciences had 2016 revenues of $28 million, according to STAT. The company was able to collect more than 100,000 DNA specimens, largely because of a regulatory loophole regarding “laboratory-developed tests.” Essentially, these tests are free from Food and Drug Administration regulation so long as they’re designed, manufactured and used within a single laboratory.

Last November, the Obama administration halted plans to close the loophole, and the FDA elected to leave the decision for the Trump administration.

The authenticity of a “research fee” is one more investigatory task for the SIU unit to consider in claim reviews.