Attorneys Argue whether SCIF Letter Shows MPN 'Bullying' Doctor or 'Self-Policing' Billing Rules

"...It's not at all unusual" for doctors to get letters such as the one State Fund wrote. He said he sees such letters as warnings to the doctors that "you will not be able to earn your livelihood if you do not do what we tell you to do."   Alan Gurvey

State Compensation Insurance Fund's May 11 letter to a doctor within its medical provider network has applicants' attorneys up in arms over what they perceive as a dissemination of misinformation and bullying. 

Defense attorneys, however, say the applicants' bar is making much ado about nothing, suggesting that the communique is a mere reminder of the doctor's obligations as a member physician.

The doctor, whose name was redacted in a copy of the letter obtained by WorkCompCentral, had billed SCIF $375 for a supplemental medical-legal evaluation of a worker after utilization review denied authorization for the worker's pain medications and an electrocardiogram. State Fund's letter tells the doctor that objections to UR decisions "are to be resolved through the independent medical review process and not the medical legal process."

It also cites Labor Code 4064 as providing that medical-legal reports cannot address medical treatment recommendations subject to utilization review.

The letter then states "UR appeals are not separately reimbursable," and that the doctor's failure to comply with the terms of the MPN participation agreement may result in the doctor's removal from the MPN.

Bernardo de la Torre, president of the California Applicants' Attorneys Association, last week observed that "doctors can be profiled and kicked out of MPNs under current law without any explanation or any recourse."

He said CAAA's membership is "concerned and alarmed when we hear of abuses of the MPN system," and the group believes "the improper influence of medical decisions by non-medical persons has no place in the California workers' compensation system."

De la Torre said CAAA would like "an open and honest study be done to insure that doctors' recommendations cannot be interfered with in this manner."

Applicants' attorney Alan Gurvey of Rowen, Gurvey & Win said, "it's not at all unusual" for doctors to get letters such as the one State Fund wrote. He said he sees such letters as warnings to the doctors that "you will not be able to earn your livelihood if you do not do what we tell you to do."

Just last week, Gurvey said he got an email from a doctor saying the doctor would not refer a worker to a physician from a different specialty, would not comment on other conditions or injuries outside the doctor's specialty and wouldn't treat on a lien for any denied conditions, because of the rules for MPN providers in the doctor's network.

Thus, the doctor's "expertise and medical training are completely irrelevant," which is "absolutely outrageous; we are talking about people's health," Gurvey said.

Based on his read of the State Fund letter, Gurvey said it seems the doctor is being told he won't get paid for helping the worker appeal a UR decision, even if the doctor really believes the worker needs the denied treatment.

"They're being told if you want to stay in MPN, let IMR approve the UR denial without fighting," Gurvey opined.

While he acknowledged that the letter "doesn't say 'if you continue to request treatment for this individual which we disagree with, you will be kicked out,'" Gurvey posited that "those of us sensitive to dealing with this on an ongoing basis" see the letter as making that implicit threat.

Gurvey said he also thought the letter wasn't entirely accurate in what it was telling the doctor.

For instance, he noted, the letter "is presupposing that everything is subject to UR," when the Workers' Compensation Appeals Board last year recognized that treatment requests to reinstate a previously-authorized service won't be subject to UR if there's been no change in a worker's condition justifying the payer's decision to terminate it.

This rule derives from a panel decision in Patterson v. The Oaks Farm, which said an employer couldn't unilaterally cut off nurse case manager services for a worker and then force her doctor to submit a request for a nurse case manager to UR and IMR.

Gurvey also pointed out that not every single UR decision must go through IMR, as the letter indicates, since the WCAB has said it has jurisdiction over issues of medical necessity when UR is not timely completed.

Further, he said he thought the letter conveys the idea that the doctor isn't supposed to discuss contested issues in a medical-legal report, when Section 4064 instructs a doctor not to comment only on contested "treatment recommendations" and still requires a doctor to discuss "all contested medical issues."

But defense attorney Richard Jacobsmeyer of Shaw, Jacobsmeyer, Crain & Claffey said he wasn't even sure the report the doctor wrote would qualify as a medical-legal report.

From looking at the letter only, Jacobsmeyer said he couldn't tell if the doctor wrote it without the patient asking for it. If that was the case, he said he thought it probably would be a treating doctor report, not a medical-legal report, and so he wasn't sure if SCIF would have to pay for it.

"I don't think we have case law one way or another," he said. "State Fund probably would like the answer to be that you can't get paid," but Jacobsmeyer said he knows a lot of applicants' attorneys who think Section 4064 would require the doctor to be paid, so "I'm sure someone will bring that issue before a judge" at some point.

Jacobsmeyer said he wasn't sure what the fuss was about with the letter. He said there's really "no point in being in an MPN" if doctors don't want to fulfill their obligations to write reports, respond to requests for information, and provide treatment in accordance with the MPN's requirements. If a doctor isn't following the MPN rules, the only enforcement tool an MPN administrator has is "to threaten to kick them out," he said.

Indeed, at least one doctor has gotten the boot from an MPN in recent years, and the 4th District Court of Appeal found CorVel Healthcare "was well within its rights" when it summarily revoked Dr. Douglas Roger's membership in its MPN, since it was clear Roger "would never modify his practice to conform to the contract" and meet his obligations as a member physician. 

Fellow defense attorney Tim Kinsey of Grancell Stander Reubens Thomas & Kinsey said he saw the State Fund letter as the payer's "self-policing of the MPN" and "educating the doctor as to compliance."

He said it appeared the doctor hadn't recognized the difference between a treating doctor report and medical-legal report, and the doctor erroneously billed a treating doctor report as a medical-legal report.

The doctor was "charging for the wrong thing," and that's what SCIF was protesting, Kinsey observed. "The point of the letter was not to discuss the merits of what was written in the report, it was to object to the charge for the report."

From what he saw, Kinsey said, "the doctor billed for the wrong thing" and the doctor "got called out on that," not for advocating for the injured worker.

"There's nothing wrong with that," Kinsey opined.

Mona Nemat of Brissman & Nemat, an attorney who represents doctors who treat on a lien basis, said she saw the ruckus over the letter as indicative of the larger dispute in workers' comp over whether doctors are "allowed to be doctors," or whether their ability to do what they believe to be best for their patients has become so circumscribed by MPNs, UR and IMR that they can't operate effectively.

She said she thought it is wrong to put a doctor in the position of having to risk getting kicked out of an MPN by providing the treatment that the doctor believes to be reasonable and necessary or foregoing the treatment.

State Fund spokeswoman Gina M. Simons said Monday that the dual goals of its MPN is to "secure quality of care for our injured workers through access to physicians who demonstrate positive outcomes" and "to control medical expense and overall total claims costs."

Having MPN physicians "focus on providing evidence-based care and returning injured workers to full employment at the earliest, appropriate opportunity reduces the duration and extent of disability, and thereby reduces total claims costs overall," she said. The savings experienced by this "ultimately helps to control overall workers’ compensation costs for all system stakeholders," Simons said.

"It is important to address a potential violation of a provision of the MPN agreement because it may affect the quality of care for our injured workers and costs," she added.

Published on May 19, 2015 by WorkCompCentral, authored by Sherri Okamoto