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The Editor Rants on “Promises, Promises!”
By Marjory Harris, Esq.

   

The editor revisits the broken system created by reform legislation and bureaucratic regulations aimed at micromanaging the medical delivery system.

   

Do you remember the song, “Promises, Promises” from the eponymous 1968 Broadway hit? It was back in the late 60s, a tumultuous era that saw the rise of the counter-culture, anti-war and civil rights activism, assassinations of the President, his brother, and Martin Luther King. The lyrics go

“Oh, promises, promises
This is where those promises, promises end
I don’t pretend that what was wrong can be right
....promises, their kind of promises
Can just destroy a life.”

One of the promises of SB 863 was that a new process, independent medical review, would allow injured workers to get decisions about recommended medical treatment much faster than the QME system, where they went to a panel qualified medical evaluator to overturn a utilization review recommendation. At the time that SB 863 was before our state legislators, DIR director Christine Baker claimed that the QME process took many months from start to finish. She didn't mention that much of the problem was caused by the DWC's cumbersome regulations and delays in issuing panels.

Baker promised that IMR would be a much faster process, with anonymous doctors issuing opinions without examinations, based on the medical records provided by the adjuster. Now, over a year later, with IMR in full swing, what is the situation at the DWC? With the QMEs no longer allowed to give opinions on current medical treatment, it seems to take longer than ever to get a panel in a represented case. By late summer it was taking six months from the date the Medical Unit received the application.

In the endless juggling act going on at the DWC, a new promise emerged in late October to clear up the backlog. The spokespeople revealed that personnel were moved to respond to panel requests, while presumably their regularly assigned work piled up. Again, another promise to explore electronic filing options.

Whoa! EAMS rolled out over 5 years ago. Why are they now talking about filing QME panel request forms electronically? Why not from the get-go? And the regs required to effectuate SB 863 enacted over a year ago? Still being studied, amended, delayed.

 

One of the promises of SB 863 was that a new process, independent medical review, would allow injured workers to get decisions about recommended medical treatment much faster than the QME system

So how long is it taking to get the IMR opinion from the anonymous doctor when utilization review delays, modifies or denies a recommended treatment? Well at this point, it is taking many months, and often the opinions are issued where the doctor notes that there were no records sent to review. This leaves the injured worker with no real second opinion on the need for treatment, since the IMR opinion was not based on an actual examination and review of records.

I worry about those workers who may never recover as a result of delayed or denied treatment, who may die as they wait, who may have permanent damage that might have been prevented with prompt care. For those people, the promises made by those responsible for SB 863 will destroy lives.

 
IMR leaves the injured worker with no real second opinion on the need for treatment, since the IMR opinion was not based on an actual examination and, in some cases, it was issued with no review of records.

What can be done to fix this mess? We still can't get QMEs quickly to decide issues of status or causation, whether it is a work injury, whether there is temporary or permanent disability, and what future medical treatment is required.

We still can't get opinions quickly about whether treatment should be approved after being denied, delayed, or modified during utilization review. There are many defects in the utilization review process, with decisions being sent to the doctor or applicant or their attorney at old addresses, or not signed by a doctor, or missing documents needed to make the decision. We still have many defects in the IMR process, the main one appearing to be that the adjuster may not be sending all the necessary records. And to make matters worse, the punishment for not doing things correctly is minimal or nonexistent.

 
We still can't get opinions quickly about whether treatment should be approved after being denied, delayed, or modified during utilization review.

It appeared to me during the run-up to 863 and its becoming law in January, that it was creating a lot of new obligations and duties to be carried out at the DWC, which was already struggling even with user funding to get its assigned duties completed promptly. Since the passage of SB 863, the DWC has been issuing reams of regulations, many of which are as confusing as parts of SB 863 itself, has increased the delay time in getting a panel list on a represented case, and has not set up many of the things required by SB 863, or is not able to carry out the new regulations in an efficient manner.

While Maximus has received a windfall, with a guaranteed contract and huge fees coming in, what does the employer get from any of this? Increased user funding and higher premium costs. What does the injured worker get? Increased delays in receiving needed treatment and increased frustration with the entire system.

Many of us thought that when Rosa Moran became the administrative director, the DWC would become more efficient and function better, that EAMS might be greatly improved and accessible, that we would actually move to a paperless system, that the QME panels would issue more promptly with doctors who actually were available to give appointments within the statutory time frame. Unfortunately, Rosa Moran was another victim of SB 863. The current staff there is simply not able to keep up the old duties let alone all the new ones imposed by SB 863.

 

Since the passage of SB 863, the DWC has been issuing reams of regulations, many of which are as confusing as parts of SB 863 itself

What is the solution? One is to change the QME system so that represented cases can get a QME quickly, through an online process where a list of names is generated. This would eliminate the need for clerks to pick over letters from attorneys to find defects and then send them back rather than issue a panel, and when the panel is issued, tell people that are having a problem with the process to go to the WCAB. Another is to change the UR process, so that employers do not insist that it be done for every prescribed pill or PT session, etc. One of the purposes of the medical provider networks was to create less delay in getting needed treatment by having the employers hand-pick doctors who they trusted to follow the guidelines. Why are those doctors' recommendations being sent to utilization review? Is it that they pick doctors that can't write reports? Or that they don't pay them enough to write detailed reports supporting their recommendations? Whatever it is, it needs to be cleared up before it gets to the expensive and time-consuming IMR process.

Another reason for SB 863 was to remove from litigation a number of disputes that currently clog the Workers' Compensation Appeals Board, such as liens and medical treatment disputes. So what is actually happening? The appeals board is flooded with lien hearings and expedited hearings over defective utilization review. Undoubtedly, IMR will be appealed as unconstitutional, and so will parts of the lien process. We face years of doubt and delay as the issues wend their way upward to the Supreme Court.

It was entirely predictable in August 2012 that:

• The promises being made by the state bureaucrats were impossible to fulfill.

• There would be massive increases in bureaucracy, expense, delay, and litigation as a result of SB 863, which was rushed through the legislature in the last two weeks of the session without adequate review and largely without comment by those who have to practice workers' compensation medicine and law.

• The DWC, which had demonstrated a failure to run the EAMS and QME systems efficiently, would not be able to run efficiently and productively after being required to create reams of new regulations and duties for its staff.

• The new mess created by SB 863 would clog the WCAB and appellate courts with its conundrums, and that various users of the system would go back to Sacramento for more legislation by legislators who know nothing about the workers' comp system.

The California workers' compensation system is a multi-billion-dollar business affecting millions of people, and it will always attract predators and profiteers. The usual defense objection is that there's fraud among the workers, but it's quite clear that there is also tremendous greed among those who profit and feed at the trough, whether it's medical providers, insurers and adjusting agencies, or the other industries that have sprung up to administer this huge and unwieldy system. Or even the legislators themselves (see News Alert)

I expect there to be another huge reform within the next 10 years, and it will probably be done in the same inept and and nonsensical way that the past ones were done. In the meantime we must live with the empty and hollow promises of the current reform, which has thrust workers' compensation into a micromanaged, procedure-ridden nightmare that resembles something from a Kafka novel more than a sound process for the expeditious resolution of disputes.

On 10/4/13 WorkCompCentral reported that the dealmakers bragged about how they were able to keep interest groups in the dark (see "Negotiators Give Behind-the-Scenes Look at Labor-Business Deal"). The people who created this mess crow that they managed to keep it all secret by meeting alone in a windowless room. Really, they ought to eat crow.

 
Change the system to create efficiency, not obstinate bureaucracy

Marjory Harris, Esq.

Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicants' attorney and a certified specialist. She continues to represent injured workers and mentors attorneys on big cases.

www.workerscompensationcalifornia.com

 

Reach Marjory at (888) 858-9882 or email: MHarrisLaw@verizon.net

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