Monday, April 7, 2014

OAL (Office of Administrative Law) Nod for CA DWC’s Final Versions of the IMR and IBR Regulations

Senate Bill 863 is California’s landmark workers’ compensation reform signed by Governor Edmund G. Brown Jr. in 2012, which has the objective of saving businesses millions of dollars in unnecessary costs while simultaneously improving worker protections. According to DIR (Department of Industrial Relations) director Christine Baker, “these reforms are engineered to reduce unnecessary costs while redirecting some of the savings to increase benefits for disabled workers."  On January 1, 2013 the key components of Senate Bill 863 became law and included a 30% increase in permanent disability indemnity rates for workers phased in over two years. Other aspects of the bill such as those designed to reduce costs for businesses are being implemented through regulatory action.

The DIR was established to boost working conditions for California’s workers and also to improve opportunities for profitable employment in California. A division within DIR, the DWC (Division of Workers’ Compensation) monitors the administration of WC claims and provides administrative as well as judicial services to help resolve disputes that arise in relation to workers’ compensation claims. The DWC has the following achievements to its credit as a result of its focus on implementing SB 863.

• Adopted regulations such as:
    o Lien filing fee and activation fee
    o QME (Qualified Medical Evaluation)
    o Supplemental job displacement benefit (SJDB)
    o Interpreter certification process
    o IBR (Independent Bill Review)
    o IMR ( Independent Medical Review)
• Revised the inpatient hospital fee schedule to reduce duplicate payments for spinal implant surgeries.
• Revised the ASC (Ambulatory Surgical Center) fee schedule, thereby reducing the payment from 120% to 80%.
• Implemented the medical RBRVS (resource-based relative value scale) fee schedule effective from January 1, 2014.
• Started formal rulemaking for the pre-designation/chiropractor primary treating physician regulations.
• Began formal rulemaking to revise the MPN (medical provider network) regulations.

IMR and IBR Regulations

The (DWC) filed the certificate of compliance for IMR (Independent Medical Review) regulations and the IBR (Independent Bill Review) regulations on December 20, 2013 with the Office of Administrative Law (OAL). These were the last 2 sets of emergency regulations implementing SB 863.

IMR (Independent Medical Review) is an efficient process through which all medical treatment disputes will be resolved by physicians. This will help avoid the more arduous and costly adjudication system. If the utilization review delays, denies or modifies a treating physician’s request for a specific course of medical treatment on the grounds that the treatment is not medically necessary, the injured employee has the right to request a review of that decision via IMR conducted by a physician.  This evaluation which involves a detailed medical record review of the relevant medical records will be prompt and based on evidence-based standards to ensure that the injured employee receives appropriate and timely medical treatment.

The IBR applies to any medical service bill where the fee is determined on the basis of a fee schedule adopted by the DWC. An IBR can be requested by a medical provider who disagrees with the amount paid by a claims administrator on a properly documented bill after a second review. This regulation can help eliminate costly, unnecessary litigation.

Core Inclusions in OAL-approved IMR and IBR Regulations

The OAL has approved both the IMR and IBR regulations. Both sets of regulations have been filed with the Secretary of State on February 12, 2014 and are effective immediately. Before March 1, 2014 any version of the IMR application form adopted by the Administrative Directory under section 9792.10.2 can be used.

The following are included in the final IMR regulations:

• Improved instructions and revisions to the IMR application form.
• Provision for penalties to be assessed against an administrator of claims for not producing medical records in a timely manner.
• Clarification that IMR determination cannot be based solely on the information provided by a UR (utilization review) determination.

Here are the inclusions in the final IBR regulations:

• Consolidation of separate IBR requests has been limited to 20 requests.
• Required index of supporting documentation.
• Revisions made to the forms providers use to request a second bill review and IBR.
• Electronic Medical Billing and Payment Companion Guide and the California Division of Workers’ Compensation Medical Billing and Payment Guide – updated versions.

Comprehensive details regarding workers’ rights and employers’ responsibilities, and information for small business owners, are available on the DIR website. Their rulemaking webpage carries a quick overview of important regulations. The page is updated regularly.

Tuesday, April 1, 2014

Why Deposition Summary Service Is Necessary for Law Firms

Practicing attorneys busy with the running of their legal practices are often bogged down by the innumerable deposition transcripts they have to handle on a daily basis. Deposition summaries are integral when preparing for trial because they help attorneys have a clear overview of the case and its merits/demerits. They are concise and of remarkable clarity, and are prepared from lengthy deposition transcripts. Usually, paralegals are entrusted with the deposition summary preparation. The major concern here is that paralegals are untrained in medical record review and may have a tough time trying to make sense of the medical records. The practical option is to obtain the professional services offered by a reliable medical review firm.  Depositions summary services are available from reputable medical record review firms in the US that are focused on providing dedicated solutions to the medical and legal community.

How a Deposition Summary Is Prepared

Depositions obtained from a witness contain vital information as to what the witness knows in a certain case. Transcripts of depositions contain the testimony of the witness, which the lawyer will utilize during litigation. In the court scenario, depositions help to avoid the element of “surprise” because both parties involved in a case are provided information regarding each and every fact related to the case even before the trial.

Legal deposition summary service involves analyzing a huge volume of deposition material and summarizing it into well-organized, readable formats.

• The deposition transcripts provided are carefully reviewed
• All ambiguities  are made clear, so that there is no confusion whatsoever
• Deposition summaries are prepared highlighting the information relevant to the particular case
• Narrative and abstract summaries are provided in custom format.

Trained Professionals Prepare Focused Summaries


Deposition summaries are prepared by professionals who are well-versed in legal matters and terminology. They are extensively trained in preparing these summaries and can therefore assure flawless output. They can easily list the core facts of the case and highlight them in the summaries. Summaries are prepared for all types of cases such as medical malpractice, insurance, personal injury, family law, toxic tort and more. Being thorough professionals, they can handle any volume work smoothly and efficiently, and will send the summaries to you within your required turnaround time. 

Legal Deposition Summary Service That Is Reliable

When outsourcing deposition summary requirements to an outside agency, ensure that your service provider is totally trustworthy. Find out everything about the company, its clients, service terms and any other detail you may want to know. The data you entrust with the outsourcing firm is sensitive, so the provider must ensure absolute confidentiality. Go for a medical review company that is HIPAA compliant and has an excellent track record for providing value-added services to its clients.   

Depositions summary services act as solid pillars of support for legal professionals, saving them valuable time and effort. Established providers make it a point to provide cost-effective pricing as well. Undoubtedly, a responsible service provider brings tangible benefits to its legal clients, facilitating trial preparation.

Tuesday, March 25, 2014

Fitness for Duty Exam – a Practical Way to Avoid Heavy Workers’ Compensation Claims

There are simple ways to avoid risks, though many of us do not take recourse to those. For instance, employers often end up paying heavy workers’ compensation claims which could have been avoided with some exercise of caution. In many organizations workers that are not fit to do the job are recruited at considerable risk to the employer. The best way to avoid recruiting the wrong worker is by conducting FFD or Fitness for Duty tests. These tests will help determine whether a worker can perform essential functions of a job without causing injury to himself / herself or other coworkers. When employees have been off work on account of a non-work or work related illness or condition, FFD can be used as a Return to Work Evaluation test.

The ADA (Americans with Disabilities Act) and FFD

The ADA requires employers not to discriminate against a disabled worker when hiring if he/she is able to do the essential functions of the job. When thinking of performing a FFD, employers must consider the following questions:

• Can the worker perform essential functions
• Does the worker have a medical condition that poses a threat to the health and safety of the worker and his/her co-workers

If the answer to the above two questions is “yes,” then the employer can conduct a FFD and find out whether the worker is ready to work. Employers must also be aware about the reasonable accommodations in complying with the ADA. This cannot be overlooked in fitness for duty exams.

When to Conduct a FFD


As an employer, you can legally perform fitness for duty exams. Workers’ Compensation laws as well as the Family and Medical Leave Act allow employers to request an independent medical opinion regarding an employee’s fitness for duty. Employers can go ahead with a fitness for duty evaluation in the following scenarios.

• When a worker is off work for more than five days
• If the worker has a physical or mental condition that could affect his/her performance
• In case of a job transfer to evaluate whether the worker can meet the essential job functions.

Physical Exam and Comprehensive Medical Record Review Part of FFD Test

Fitness for duty exam involves a detailed physical exam of the employee and a comprehensive medical record review. Employers can utilize tests such as cardiovascular stress testing, functional capacity testing, alcohol and drug testing, job site analysis and other specialized testing to make a thorough and accurate evaluation. They can also consider holding discussions with a treating physician.

In Workers’ Compensation cases, accurate medical documentation is important. Accurate review of the medical records is necessary to substantiate the diagnosis of the employee’s physical or mental conditions. The medical professional conducting the fitness for duty exam needs all the information available to arrive at a correct decision. It is seen that very often what the employee says and what the medical records reveal may vary. This only reinforces the need for unbiased and unambiguous review of all medical records. Medical examiners called in to review the employee’s medical records will find the support of a reputable medical review company quite beneficial. The medical record review team comprising medical, legal and documentation specialists can provide comprehensive review of the employee’s medical history. This will aid in understanding all relevant medical aspects and arrive at a sensible decision that is right for both the employer and the employee.

Fitness for duty exams protect both employer and employee. It allows employers to do everything they can legally to find out whether an applicant can safely carry out the physical demands of a particular job, and thereby avoid the risk of a Workers’ Compensation claim that could have been avoided. Similarly, it also protects the employee as well as his/her coworkers from running the risk of a possible injury.

Tuesday, March 18, 2014

Obesity May be a Qualifying Factor for SSD Benefits

The SSA (Social Security Administration) defines obesity as a chronic disease marked by an excess of body fat and usually caused by a combination of genetic, behavioral and environmental factors. It is associated with a number of serious medical conditions such as diabetes, heart disease, and respiratory problems. Individuals who find it impossible to perform full-time work due to their obese condition may qualify for SSD (Social Security Disability) benefits. Till the year 1999, obesity was included among the impairments listed is the SSA’s blue book. Obesity listing has been removed from the book, which makes it rather difficult for obese individuals to win claims for SSD benefits. However, Social Security still considers obesity and the extent to which it limits normal functioning when deciding SSD benefits. It is necessary though, that the person’s obesity is as severe as one of the impairments in the listing. If a person is too fat to walk, his/her condition may equal one of the impairments listed and make them eligible for disability benefits.

Medical conditions establishing disability are proved by the patient’s medical records, and a detailed medical record review will reveal if the individual qualifies for SSD benefits. The information obtained from the medical records, including the statements obtained from the treating physician is used to decide whether an individual qualifies for disability. Apart from this, the information obtained from a person’s work history (in the case of adults) or academic records (in the case of children) is also used to determine disability. To qualify for disability benefits the person’s condition should be causing functional limitations that make working impossible, or in the case of a child make it impossible for the child to participate in activities appropriate to its age.

Medical Review Services for Disability Lawyers

Social security disability lawyers are assisted by medical review companies in their analysis and review of patient medical records. A clear statement of the claimant’s medical condition has to be presented to the judge by the disability attorney at the hearing level. It has to be made clear to the judge how severely the claimant is limited by his or her condition. A case presented well to the disability judge can be won because if the judge is convinced of the severity of the disability, he/she may rule in the claimant’s favor. Reliable medical review services focus on accurate analysis and presentation of the medical information that will help the attorney understand the case and make an effective presentation.

The AMA Stand on Obesity

It was in its June 2013 annual meeting that the AMA (American Medical Association) adopted a policy that recognizes obesity as a disease that needs a range of medical interventions to advance treatment of obesity and its prevention. When obesity is recognized as a disease, it is expected to change the way the medical community tackles this condition that affects one-third of Americans.

The important consideration now is what impact the AMA’s recognition of obesity as a disease will have on obesity treatment under the ADA (Americans with Disability Act). The ADA was implemented to prevent discrimination in employment based on disability. According to this Act, employers cannot discriminate against an employee with a disability, who is otherwise qualified to do a job and can do it with a reasonable accommodation. With this latest announcement, there is a likelihood that there will be an increase in the number of people claiming for ADAAA (Americans with Disabilities Act Amendments Act) coverage for obesity. The AMA’s announcement that obesity is a disease may also increase employers’ perception that obesity is an impairment.

The SSD – ADA Conflict

Moving away from obesity in particular and speaking more generally, there may be instances when the claim for SSD benefits conflicts with the claim for ADA benefits. Take for instance the case of an employee who attempted to claim both SSD and ADA benefits. The plaintiff who worked for some time for her employer suffered a stroke that damaged her concentration and ability to remember. Since she was unable to return to work at first, she claimed SSD benefits. When she improved and returned to work, she notified Social Security and was denied benefits as she could work. Soon after, she was terminated from service for not being able to perform her job. Following this, she amended her SSD applications and succeeded in reclaiming her benefits. Simultaneously, she sued her employer under the ADA for not providing reasonable accommodation so that she could return to work. Her complaint was dismissed on the grounds that she had claimed SSD benefits under total disability. She could not claim ADA compensation because
she was not otherwise qualified to do the job. The plaintiff was not given an opportunity to consider the factual issues and prove whether her 2 claims were identical or distinct.

Since the Fifth Circuit ruled that the plaintiff was estopped from claiming under ADA, the Supreme Court reviewed the Fifth Circuit case. The Supreme Court found that there needn’t be an inherent conflict between SSD and ADA requirements.

• According to the Supreme Court reasoning, the SSD provisions involved the plaintiff’s condition without accommodation whereas the ADA is based on providing reasonable accommodation for the disability.
• SSD benefits are granted on the basis of a set of standards for qualifications. No detailed analysis of the claimant’s specific work skills or history is needed to determine SSD benefits, whereas such an analysis would be required for a reasonable accommodation analysis for ADA benefits.
• ADA is based on detailed factual inquiry. To qualify under ADA, the disabled person can propose a way to perform her job that will accommodate her disability. In the absence of such an accommodation, she is totally disabled and can claim for SSD benefits only.
• If the proposed accommodation is reasonable, the employer can provide it. Whether it is reasonable is based on the cost of the accommodation and also whether it required the job to be modified in such a way that the employee is not doing an essential function of the job. If the accommodation is provided and the claimant accepts the job, she will no longer be eligible for SSD benefits, though some provisions are there to continue receiving benefits during a trial period of work. If the employer doesn’t provide such a job, the claimant can continue receiving disability benefits under SSD regulations.

The Court found that there may be circumstances when the claim for SSD conflicts with that for ADA compensation. In such instances, a disability attorney representing a client will have to convince the jury how to reconcile the two claims. However, the mere existence of an SSD claim need not totally rule out a successful ADA claim.

Wednesday, March 12, 2014

Social Security Benefits in 2014

Social security benefits are available for older Americans who have retired, for disabled people, survivors of workers who have died and dependents of beneficiaries. In the United States, approximately 165 million people work and pay Social Security taxes while around 58 million people receive monthly Social Security benefits.

Small Increase Compared to 2013

In the year 2014, Social Security benefits will rise only 1.5%, and this is one of the smallest increases so far in the program’s annual COLA (cost of living adjustment). Compared to the 1.7% increase in 2013, this is quite less. In 2010 and 2011 there was no COLA increase in the wake of the recession and the fall in prices. In 2012 though, there was a 3.6% adjustment that was quite significant. The small increase now is attributed to the fact that inflation has remained low. With this small increase of 1.5%, beneficiaries will receive an increase of $19 that will lift the check to an average of $1294.

The Longer the Wait, the More Are the Benefits

Social security benefits are paid on the basis of your lifetime earnings; the more you earn, the more will be your benefit. A person enrolling at the current FRA (Full Retirement Age) of 66 would get 100% of his/her full benefit. However, if you choose to retire at age 62, you will receive only 75% of your full benefit. if you can wait to claim benefits when you are 70, your monthly payout would be 132%.

Consider a person whose average annual earnings SS benefits determinant was $75,000. His/her annual benefit at the age of 62 would be $15888. This figure would increase to $21181 if they retire at the full retirement age of 66. If they choose to retire at 70, this benefit amount would further rise to $28821. A person waiting for 8 years to claim benefits can enjoy 81% increase in his/her annual SS payments. However, it is important that a person retires at the right age because the one drawback in waiting to claim SS benefits is that if they die before filing for Social Security benefits, no one including the deceased’s spouse or dependents stands to benefit. SSI claims cannot typically be started after a person dies. However, if a person contacted Social Security and enquired about filing for disability benefits before his/her death, the beneficiary can file an application for the same.

The Important Role of Disability Attorneys

People planning to retire and claim Social Security benefits have to consider many aspects. They need all the relevant information that will help them make the best decision. Social Security law is rather complex, and usually claimants prefer to consult a disability lawyer to understand the intricacies and take the decision that is best in their case.

Disabled individuals can file for Social Security disability benefits provided they meet the required criteria. When a Social Security claim has been denied, they request the services of a disability attorney who can provide valuable support in getting their claim approved. Statistics show that a claimant represented by an attorney is more likely to be approved by the SS. Disability attorneys will present the case in a way that is most favourable to their clients.

• They would provide advice on the claimant’s disability onset date; and argue that the particular impairment meets the requirements of one of the disabilities listed in the Social Security’s “blue book.”
• The lawyer will collect and submit all relevant medical evidence, get an opinion from the treating physician, draft a detailed brief to the ALJ (Administrative Law Judge), and prepare the client for the questions the judge may ask during the hearing, during the first and second levels of appeal. He/she would also obtain helpful testimony from the client during the hearing. In addition, helpful information to substantiate that the client is unable to work would be elicited from the medical expert during cross examination.
• When appealing to the Appeals Council and federal court, the disability lawyer will effectively argue and demonstrate that Social Security has wrongly denied your case.

The Medical Record Review Process – Its Significance

When filing for social security disability benefits, the claimant’s medical records are the most important proof to establish his/her disability. Only a detailed analysis and review of these valuable documents will give the lawyer an idea about the actual disability. Medical records can be voluminous and reviewing them is not an easy job, especially for a legal person untrained in medical matters. This is where a reliable medical record review company can be of valuable support to a social security disability attorney. The medical review company has medical and legal professionals on their review team that can prepare a detailed medical chronology listing all the medical encounters. They will also provide concise medical case summaries that provide all details regarding the specific disability of the claimant, medical opinions and other relevant details. The significant aspect about an intelligent medical review process is that the summaries are not mechanically prepared. They provide valuable insight to the lawyer regarding the case which will assist in case preparation and during the appeals process.

The service of a medical review company is thus invaluable to social security disability attorneys and their firms, helping them win cases and bringing relief to their clients.

Thursday, March 6, 2014

Incomplete and Aberrant Medical Records – a Serious Concern

Medical records being vital with regard to provision of appropriate patient care, and also with regard to their use in medical litigation have to complete in all respects. When submitted for medical record review, inconsistencies and errors in the medical records pose serious issues. Such erratic medical records have always remained a big problem for the government, insurance companies, lawyers, physician organizations and others that have to handle these on a daily basis.

In spite of the grave consequences, many practitioners in hospitals and managed care organizations continue to disregard the rules and regulations pertaining to medical records and carry on apathetically. They wake up and complete the medical charts only when threatened by some form of disciplinary action. However, a clarification from the National Practitioner Data Bank requires physicians to keep their medical records up to date and completed. According to this, a 31-day suspension based on a practitioner’s incomplete medical records would be reportable “if the failure to complete medical records is related to the physician’s professional competence or conduct and adversely affects or could adversely affect a patient’s health or welfare.” The Data Bank has warned hospitals and other reporting entities that medical record suspensions should come under professional review actions, rather than administrative actions thus indicating the necessity of reporting. Practitioners need to take note of this.

Timely Completion of Medical Records Is Mandatory

    - Hospitals participating in the Medicare program have to maintain medical records for each patient evaluated or treated at the hospital.
    - Medical records have to be complete, accurate, properly filed and managed. They should be easily accessible.
    - Entries have to be legible and unambiguous.
    - The names and signatures of persons ordering, providing or monitoring the service provided have to be there in the records. All dates of service should be entered correctly.
    - Physical examination notes including a health history performed no more than 7 days before the date of admission or within 48 hours after admission should be present.
    - Medical records have to be completed within 30 days after discharge and must contain the final diagnosis.

Apart from federal regulations regarding medical record maintenance, hospitals and organizations may have their own standards as regards patient records. Ensuring that these are strictly followed is the important concern. Care providers should be aware that shabby medical record keeping and aberrant medical records can have grave legal consequences including claim denials and penalties.

Thursday, February 27, 2014

Medical Records and Their Legal Implications

Medical records are sensitive documents that can be really revealing and this is exactly why many people would rather keep them under lock and key. Quite recently, U.S billionaire George Soros’ lawyers requested a judge to keep his medical records, depositions and other “confidential” material sealed, in view of his legal battle with his ex-girlfriend.

According to the billionaire’s lawyer, this request is made considering the fact that the nature of the claims involve details of both parties’ personal lives and both seek medical information among other specifics. Information disseminated may lead to embarrassment and annoyance for both sides involved and may also prejudice their business interests. The 83-year-old business magnate is scared that Adriana Ferreyr, his 30-year-old ex-girlfriend would reveal to the press sensitive information about his health, wealth and wife. Soros is being sued for $50 million by his girlfriend and the reason – for giving the $2 million apartment he had promised her to his wife Tomiko Bolton.

In legal terminology, Soros had committed an “intentional infliction of emotional distress.” Ms. Ferreyr got really violent during deposition and struck Soros in the head; she was prevented from striking a second blow by Soros’ lawyer, according to Manhattan Supreme Court papers. She also attacked the billionaire’s lawyer and an aide.

In any legal battle, medical records are the prime proof of an injury and specific medical conditions. As such, both sides involved in a case would want these sensitive documents to remain confidential and not fall into the wrong hands and cause harm. Other scenarios where the medical records of an individual become important are when a physician is facing a malpractice charge and when a payer is determining the legitimacy of a medical claim. Reviewing the patient’s medical records is what experienced attorneys would do before committing to litigation. Usually, the medical documents are sent to an expert such as a medical record review company for comprehensive review or analysis. In a malpractice case, medical record review would reveal whether the provider or his team deviated from the standard of care. In a medical claim submitted for reimbursement, a detailed review of the patient’s medical records would show whether the services provided were medically necessary.

Medical Records in the Discovery Process

The discovery process before trial is the occasion when attorneys of both sides gain access to the evidence available and witnesses. Attorneys of both the plaintiff and the defendant would request for the medical records that may be used in court as evidence. Once the medical records are obtained, the review process begins to understand all angles of the case.

• Reviewing involves organization and analysis of the medical records, extraction of vital and relevant data, and summarization of the medical data.
• Expert medical record reviewers would provide insightful review that will assist counsel to decide whether to settle, arbitrate/mediate or try cases.
• For a seasoned medical review company, medical record volume and complexity is not a major concern because it will have the expertise and staff strength to handle even the most challenging projects.
• Medical record review and analysis will be provided for any kind of litigation including:

    o Medical malpractice
    o Personal injury/healthcare
    o Nursing home/long term care
    o Toxic tort
    o Medical device
    o Pharmaceutical
    o Product liability

What is it that an expert medical review company can accomplish that may prove highly challenging to an attorney’s office?

    o State-of-the-art medical records indexing, categorizing and organizing services.
    o Accurate and speedy review process facilitated by the presence of trained and experienced medical as well as non-medical as well as legal review professionals.
    o They are trained to review the medical records to easily spot confounding variables and alternative causation, to detect tampering in the medical documents, identify missing records, make sense of illegible documents, and record additional providers of care.
    o They are dedicated to providing superior quality service in the best interests of the client.

EMRs in Litigation

With the advent of electronic medical records, significant changes are being created regarding what and how information will be considered evidence in litigation. In the current state of transition from paper to electronic medical records, medical and legal professionals must be aware of the changes to HIPAA, the DHHS Privacy Rule and Security Rule, the HITECH Act and the potential of computer forensics if they are to competently deal with EMR as evidence.