Western Occupational & Environmental Medical Association

Read the latest updates in WOEMA's eNewsletter - August 2010

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July 15, 2010

The California Division of Workers' Compensation (DWC) issued a new draft revision of its fee schedule for physician services.  WOEMA members were alerted and urged to send comments (by July 20) on the draft Official Medical Fee Schedule (OMFS) to the DWC's online forum: DWCForums@dir.ca.gov.   

DWC's new proposal contained the following key features:
 
1)    Implementation on Jan. 1, 2011 of an RBRVS-based schedule with three conversion factors: one for surgery, one for radiology, and one for all other codes.
 
2)    Transition to current CMS (Medicare) ground rules for determining E&M codes.
 
3)    No changes in reimbursement for completing PR-2 forms (the current rate is $11.69).
 
For Primary Treating Physicians who bill under the Evaluation & Management codes, the anticipated change in reimbursement under the proposed schedule would depend on a number of factors, including the specific code, changes in coding practice under the CMS ground rules, and the loss of any current adjustments based on geographic practice area (GPCI).  Early calculations suggest modest increases for each E&M CPT code.
 
WOEMA made the following comments as an organization sending comment to the DWC Forum:
 
1)    The minimum conversion factor for all codes should be set at 45.  The proposed conversion factor of 42 for E&M codes is simply too low, given the historic underpayment for cognitive services.  In its March 2010 updated report on the RBRVS conversion, the Lewin Group calculated a conversion factor of 45 based on adoption of a single conversion factor and dollar neutrality.  Although it may be necessary to adopt more than one conversion factor, the minimum conversion factor for all codes should be set at 45 to adequately align incentives within the system.
 
2)    The conversion factors must be indexed to medical inflation, preferably the Medicare Economic Index (MEI).
 
3)    The new proposal should not adopt the CMS (Medicare) ground rules in total.  Medicare patients and injured workers have different profiles and different treatment needs.  Each specific ground rule should be considered for applicability to Workers Compensation and for the effect of any downcoding on payment and treatment.
 
4)    Payment for completing PR-2 reports should equal that of the PR-4 and other reports.
 
5)    The new schedule should set appropriate fees for the E&M consult codes, series 9924x.
 
6)    The proposed fee schedule continues the practice of the multiple procedure payments or "cascading" of fees associated with Physical Therapy.  This process of cascading is not followed by Medicare. The value of each procedure and the work required to provide those services are not reduced just because multiple services are delivered on the same date.
 
WOEMA's advocacy requires the support and participation of all its members, and we very much appreciate your help. Questions? Contact WOEMA Lobbyist Don Schinske.

May 28, 2010

Cal/OSHA and WOEMA Explore Areas for OEM Physician Service

In a May 27 meeting initiated by WOEMA Chairman Steve Schumann, MD with WOEMA representatives, California Dept. of Industrial Relations Director John Duncan and Cal/OSHA Chief Len Welsh invited experts among the WOEMA membership to "roll up their sleeves" with Cal/OSHA officials to explore where WOEMA can assist the division in its regulatory efforts.

Chief Welsh proposed holding a working meeting in the next three weeks in which several WOEMA representatives could meet with him and his staff in Oakland to explore who has particular expertise and where it can be deployed. Welsh listed a range of areas in which WOEMA members might possibly be of service, including as advisors for development of Permissible Exposure Limit (PEL) standards, the division's effort of gain permanent approval for its State Plan, or as expert witnesses.

WOEMA will recruit members with relevant expertise to participate in this effort. It represents a fantastic opportunity for public service and to build the profiles of both WOEMA and Occupational Medicine.

WOEMA Board Chairman Steve Schumann, MD, Bay Area representative Scott Levy, MD, and lobbyist Don Schinske met with Director Duncan and Chief Welsh in San Francisco to discuss a variety of issues, including WOEMA's Legislative Agenda, the Division of Workers' Compensation "12-point plan" to control medical costs (of which Director Duncan was an author), as well as the revision of the Official Medical Fee Schedule.

Chief among our goals for the meeting was to offer WOEMA's assistance to the Department and its divisions, which include both DWC and Cal/OSHA. [Back to eNews]

Legislative Update - May 25, 2010

In advance of a formal rulemaking process, California's Division of Workers' Compensation in March, released a version of prospective new RBRVS-based fee schedule that aims for a modest raise in reimbursement for the Evaluation & Management (E&M) codes over the next four years. DWC officials have said they intend to adopt a new schedule this summer, perhaps as early as June, in making the transition to RBRVS authorized in state legislation in 2003. The DWC's early draft includes these key reimbursement features:

• Transition to RBRVS on Oct. 1, 2010 with the use three conversion factors - one for Surgery, one for Radiology, and one for all other services. Initially the current Surgery
conversion factor would be lowered by 6 percent and Radiology by 10 percent, while the conversion factor for E&M and other services would go up 5 percent.

• Over the next four years, the Surgery and Radiology conversion factors would continue to decline and the E&M conversion factor continue to rise, to the point where all conversion factors would be equal services starting Oct. 1, 2013. By the Division's calculation, E&M payments will climb 16 percent by then over current levels.

WOEMA in April issued an Alert to its California members, urging them to post comments on DWC's online Forum. In its own comments, WOEMA applauded DWC for pursuing the long-overdue fee schedule overhaul, but called attention to some of the severe shortcomings:

1) Four years is too long to wait for the full transition. The disparity between E&M and procedural reimbursements was first quantified by the Lewin Group back in 2002. When an initial effort at RBRVS transition stalled back then, E&M were left where they were - at 85-90 percent of Medicare, even though the Lewin Group found that E&M services were undercompensated by 28 percent relative to the same service in Medicare. The payment floor has since been raised to 100 percent of Medicare. However, the underpayment has grown even more acute with the additional reporting requirements under the SB 899 reforms of 2004.

2) The fee schedule needs to be indexed to medical inflation, as measured by the Medicare Economic Index (MEI).

3) The proposal fails to set appropriate fees for the E&M consult codes, series 9924x. DWC is asking that such visits instead be billed under series 9920x and 9921x.

WOEMA lobbyist Don Schinske has met with representatives from the other medical specialties and CMA to explore areas of shared concern. Meanwhile, WOEMA has joined in discussions with CMA's Workers Compensation Technical Advisory Committee. Consensus within the physician community will be elusive as long as DWC's proposal remains "dollar-neutral" - i.e., it adds no new dollars for physician services overall but merely divides the pie differently.

Formal rulemaking, with hearings and windows for comment, will likely start in the next couple of weeks. WOEMA will work aggressively throughout the process to ensure that the ultimate regulations are fair and adequately recognize the services that primary treating physicians provide patients and the value they provide to the system.

WOEMA is also reviewing a proposal from the Industrial Commission of Arizona's for changes to its fee schedule.

Elsewhere, we represented the CMA and WOEMA at a meeting of insurers and other stakeholders in the office of CA State Insurance Commissioner Steve Poizner to discuss payment liens in Workers Compensation. While liens generally do not figure into the practices of most WOEMA physicians, WOEMA appreciated the chance to represent the physician community and build on our relationships. The meeting was part of Commissioner Poizner's efforts to drill down on the components and drivers of "medical costs" in the system, which remain publicly reported as an aggregate of medical, utilization review and other costs.

In the California Legislative arena, once again lawmakers have introduced only a modest array of bills pertaining to Occupational Medicine. In keeping with WOEMA policy to discourage legislation unsupported by medical evidence, we have raised concerns about three pieces of legislation that would extend the presumption of workplace injury. These include:

AB 1994 (Skinner) - This bill would extend the presumption to hospital workers who provide direct care for infectious disease, neck or back impairment, H1NI, or MRSA during the period of employment at the hospital. The bill is in the Assembly Appropriations Committee.

AB 2253 (Coto) extends the presumption for firefighters who get cancer from 5 years to 15 years. The bill has been placed in the Assembly Appropriations suspense file.

AB 2269 (Adams), as amended, would expand the list of facilities in which the "heart troubles" of security officers would be presumed to result from employment. The bill is in the Assembly Appropriations Committee.

WOEMA is supporting SB 1050 (Yee), which would undo a bizarre move by legislature last year to add the licensure and regulation of naturopathic doctors to the duties of the Osteopathic Medical Board of California.

In Hawaii, WOEMA is looking at two pieces of legislation for possible comment. These include SB62, which allows for independent medical review by a physician agreed upon by employer and worker, and HB2637, which would allow physicians to conduct a one-time diagnosis or consultation with a specialist

Please help up continue this work. Might we suggest a contribution of $50 to $100, to support the important legislative and regulatory work that WOEMA is doing on behalf of Occupational Physicians in our member states? Click here to make a donation to this effort.

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WOEMA Legislative Year in Review 2009
by Don Schinske, WOEMA Lobbyist

The chilly economy served to limit policymaking in 2009 as 1) many state legislatures, including California's and others in the West, focused much their efforts on how to cut programs in the face in the huge Budget shortfalls, and 2) policymakers were reluctant to entertain proposals that might have any dampening effect on business and economic activity.

Of all the WOEMA states, Hawaii's legislative year was the most tumultuous for Workers' Compensation. In face of a plummet in rates - premiums have fallen by 65 percent over the past five years - a sweeping package of reforms was proposed this year, and again stalled, with most the bills pushed ahead to 2010. Hawaii legislators did override the Governor's veto of one bill - SB695 SD1 HD 1 CD - which requires employers to continue medical services to injured worker despite disputes over whether treatment should continue, until the Director of Labor and Industrial Relations makes a determination.

In California, only bits of Workers Compensation proposals gained the Governor's signature. These bills included:

AB 1093 (Yamada), which prohibits denial of benefits in cases where a third party injures or kills an employee based solely on the third party's beliefs relating to the employees race, religion, color, sex, age, or other "immutable characteristic." This bill narrowly addresses an instance in which a stranger entered a place of work and killed an employee strictly for racist motives, and employee was denied Workers Comp death benefits. WOEMA opposed a related, more-expansive bill - SB 145 (De Saulnier) - that would have disallowed the age, race, religion, etc. from being considered in apportionment and benefits decisions. WOEMA's position was that some conditions resulting in apportionable permanent impairment are inherently directly related to age, e.g., degenerative musculoskeletal processes, and thus should not be excluded from apportionment considerations.

AB 186 (De Saulnier), which WOEMA supported, repeals the 2009 sunset date for allowing employees to predesignate a personal physician.

Otherwise, WOEMA opposed two bills that would have extended presumptions to specific types of employees. AB 586 (Huber) would have extended the presumption for hernia, blood-borne diseases, and other conditions to UC and CSU police, while AB 664 (Skinner) would have extended the presumption for back injuries and MRSA to all hospital employees. In both cases, WOEMA argued that the extension lacked a scientific basis. Both bills stalled partway through the legislative process, primarily owing to cost concerns.

WOEMA supported AB 933 (Fong), a bill to require that UR physicians be licensed in California Again, concerns about cost and familiarity with California-specific issues slowed the bill's progress, and AB 933 was turned into a "two-year" that will be picked up again in the spring.

In the regulatory arena, the Division of Workers Compensation, after more than a year of deliberation, adopted the ACOEM elbow chapter into the Medical Treatment Utilization Schedule (MTUS), as well as the ODG-based chapter on chronic pain.

Meanwhile, the Division this fall announced plans to revise the Official Medical Fee Schedule (OMFS). For WOEMA, this has been a long-awaited event. This summer, Legislative Committee Co-Chair Steve Schumann, MD, persuaded the CMA's Workers Compensation Technical Advisory Committee to approve a WOEMA proposal asking DWC boost in payment for 10 Evaluation and Management codes. Dr. Schumann and lobbyist Don Schinske conveyed this proposal to DWC chief counsel (and then-acting director) Destie Overpeck in September. We approach 2010 with hope that DWC will finally replace the OMFS with an RBRVS-based (non-Medicare) fee schedule that fairly reimburses Primary Treating Physicians for their cognitive services and reporting. WOEMA's Board of Directors remains committed to participating at the center of discussions on the important area of appropriate payment for physician services.

WOEMA joined in ACOEM's efforts to promote Occupational Medicine within the federal healthcare reform efforts. In April, Legislative Co-Chair Paul Papanek, MD, successfully moved a set of WOEMA policy planks through ACOEM's House of Delegates. In addition, WOEMA issued a Legislative Alert to members, as well as its own letters, urging key Congressional Representatives to support OEM provisions in the reform bills, including the creation of specific funding streams for OEM residencies and other provisions elevating workforce and workplace health.

In other activity, Dr. Papanek and others have entered into discussions with Cal/OSHA around the prospect of revising the State's outdate lead standards for general industry and construction. After discussion with Cal/OSHA officials, WOEMA has agreed to support the departments own initiative to update the standard, rather than submit our own petition. As part of WOEMA's policymaking efforts in 2010, we will be exploring the best ways to approach the OSHA departments in other states with the same request.

 

DWC Presses Ahead on OMFS Revision
Sept. 28, 2009

California's Division of Workers Compensation plans to open the formal rulemaking process for revising the Official Medical Fee Schedule early next year with the intent of adopting a new schedule next summer.

In a meeting Sept. 28 with WOEMA President Steve Schumann, MD, and lobbyist Don Schinske, DWC Chief Counsel Destie Overpeck and staff attorney Jackie Schauer explained that the Division hopes to issue a draft proposal soon after the Lewin Group completes one more update of the report it issued last year. That report calculated how various specialties would be affected by a "dollar-neutral" conversion to an RBRVS-based schedule. The new report will recalculate the values based on the most recent CMS updates.

The DWC officials said that while the new schedule will be based on RBRVS, the methodology underlying Medicare, they have not concluded yet on how many conversion factors will be included. Nor have they concluded that the solution be dollar neutral - that is, that any boost in payment for some codes be offset by reductions in others. At issue too is how extensively to change the Medicare "ground rules" regarding how the coding is applied. However, Schauer did suggest that one rule, the "cascading" of payment downward for multiples of surgical procedures, is a possibility for inclusion.

The DWC rulemaking process will include online comment periods and public hearings. The use of the formal process means the Division will not be relying on extensive stakeholder workgroups to reach a consensus prior to issuing a draft proposal. Indeed, the inability of such workgroups to agree on a proposal helped doomed an earlier overhaul six years ago.

WOEMA requested the meeting to ask that DWC consider boosting payment for the 10 basic Evaluation & Management codes, in the event that a full overhaul was not forthcoming. In making our case for the increase, Dr. Schumann cited the increased amount of reporting required of Primary Treating Physicians since the 2004 reforms, as well as the slow but significant drift of primary care physicians and clinics to urgent care and other lines of business. WOEMA's proposal has been substantially supported by other groups representing PTPs as well as the California Medical Association's Workers Compensation Technical Advisory Committee.

Chief Counsel Overpeck encouraged WOEMA to identify any cost savings, either in medical services or elsewhere in the system that DWC could consider to help offset potential increases. WOEMA will solicit that input in coming weeks. Members should anticipate an announcement as to how to submit their ideas.

Archives of past legislative updates