DaisyBill believes every California physician should be extremely alarmed by the proposed addition of Labor Code § 138.8 in SB 537. If passed as-is, § 138.8 would require the Department of Workers’ Compensation (DWC) to annually publish unverified utilization data about physicians who treat injured workers. The net is cast very wide to include virtually all workers’ comp physicians: any physician who treated 10 or more injured workers during the 12 months before July 1 of the previous year.

Providers, you should be more than alarmed, as it is only physician information that this new Labor Code proposes to collect and publicize, without a single requirement for publishing employer or claims administrator or utilization review organization information.

The million dollar question we want to be answered for every data requirement is:

Q: What purpose is served by publishing this information?

Below, I examine the different types of data that this Labor Code would pick out and draw attention to (and the data that it does not), and the reasons physicians should revolt against this one-sided exposure of unverified data.

Physician Information

§ 138.8 would require the DWC to report the following physician information annually about every physician who treats injured workers, including the number of injured workers treated:

1. The physician’s first and last name.
2. The physician’s specialty.
3. The physician’s National Provider Identifier.
4. The number of injured workers treated by the physician.

The DWC collects the above information from the data reported by claims administrators to California's workers' compensation information system (WCIS). The WCIS collects comprehensive billing information from claims administrators to help the Department of Industrial Relations oversee the state's workers' compensation system.

Q: What purpose is served by publishing this information?

A: This requirement has an unpleasant odor of an attempt to expose practice data with no benefit to an injured worker.

If physician data collected by WCIS is published, the DWC should also be mandated to publish on a public website injury data for each employer and claims administrator collected by WCIS. For purposes of transparency, the DWC should reveal:

• Annually, how many injured workers are reported for each employer?
• Annually, how many injured workers are administered by each claims administrator?

Diagnosis Codes Used by the Physician

§ 138.8 would require the DWC to report all of the diagnosis codes used by a physician annually when treating injured workers, including the description of the diagnosis code:

5. The International Statistical Classification of Diseases and Related Health Problems, 10th revision (ICD-10) codes by both diagnosis and procedure.
6. A short description of the ICD-10 codes used by the physician.

In health care, diagnosis codes are used as a tool to group and identify diseases, disorders, symptoms, poisonings, adverse effects of drugs and chemicals, injuries and other reasons for patient encounters. Diagnostic coding is the translation of written descriptions of diseases, illnesses, and injuries into codes from a particular classification.

Below is an example of the required diagnosis information that Labor Code § 138.8 requires the DWC to publish annually:  

• Diagnosis code: F43.22
• Short Description: used to specify a diagnosis of adjustment disorder with anxiety.

Q: What purpose is served by publishing this information?

A: Could it be that this is an attempt to prod physicians into limiting the diagnoses assigned to an injured worker? Publication of this diagnosis information means that payers can more easily categorize physicians by the diagnoses they make. Payers have a vested interest in diagnoses that entail less treatment or less expensive treatment, regardless of the patient’s injury or medical needs. Although not an accusation of callous regard only for the bottom line, perhaps injured workers are not best served by this attempt to mitigate costs through public shaming of physicians.

If diagnosis codes used by physicians are published, the DWC should also publish diagnosis codes assigned to each employer. For purposes of transparency, the DWC should reveal:

• Annually, for each employer the diagnosis codes assigned to an employer’s injured employees. Injured workers have a clear legitimate need to view the injury history for any given employer.

Utilization Review Data

The most alarming aspect of this proposed new Labor Code is the one-sided requirement that the DWC report on the following utilization review (UR) information for each physician:

7. The number of UR decisions that resulted in a modification or denial of a request for authorization of medical treatment.

All physicians know the current UR decision process is an extraordinarily tainted and flawed process.

While Labor Code § 4610 requires that the DWC develop a system for the electronic reporting of every UR performed by each employer, to our knowledge no such system exists.

Without a transparent system of reporting, how is UR data reported to the DWC? Further, reporting only on modifications or denials skews the reported data because the number of approvals is not published.

Q: What purpose is served by publishing this information? 

A: This skewed, one-sided data requirement reeks of an attempt to provide data that Medical Provider Networks (MPNs) can use to weed “undesirable” physicians from MPN rosters. Further, without any repercussions, UR organizations can drive up the denials and modifications for any given physician.

If a physician’s count of UR modifications and denials are published, the DWC should also publish:

• Annually, for each employer the number of UR modifications and denials issued by the employer’s UR organization. Remember, injured workers are forced to use an employer’s MPN physicians. Publishing employer data allows an injured worker to easily ascertain whether the employer’s mandatory MPN physician’s treatment is being authorized.

Independent Medical Review Data

§ 138.8 would also require the DWC to reveal the names of physicians associated with any request for Independent Medical Review (IMR) filed by a patient:

8. The number of independent medical review decisions requested due to a UR decision that resulted in a modification or denial and the number of independent review decisions that resulted in the UR modification or denial being overturned.

It is important to remember that a physician does not file an IMR; rather it is the injured worker who files the IMR.

Q: What purpose is served by publishing this information? 

A: This requirement just stinks. Is this an attempt to manhandle physicians into dissuading injured workers from filing IMRs? Or a more nefarious attempt to dissuade physicians from even requesting treatment that may be denied by the badly flawed UR process?

The DWC already maintains a website with a robust IMR Case Search. There is absolutely no purpose for this reporting requirement except to single out and spotlight physicians who treat injured workers -- physicians who have no control over whether or not those workers submit requests for IMR.

If patients’ IMRs and IMR results are published for each physician, then such information should also be published for each employer and IMR-reviewing physician.

Ironically, the DWC went to extraordinary measures to vigorously defend the anonymity of the reviewing IMR physician (SAUL ZUNIGA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, INTERACTIVE TRUCKING, INC., et al., Respondents.) Yet, this proposed Labor Code extends no rights to a treating physician.

Unchecked Publication Authority Granted to the DWC

Additionally, this proposed Labor Code grants the Administrative Director (AD) of the DWC the authority to publish any data the AD deems appropriate:

9. Any additional data as determined by the administrative director.

Physicians, revolt (in its several meanings) is appropriate to protest not only the proposed current list of unverified information about your practices that would be published but also by the granting of an open-ended authority to make any other of your information public.

SB 537 in Context

We all know the complicated economics of workers’ comp care sometimes requires hard compromises. However, in the case of SB 537 and most especially with respect to § 138.8, these compromises are simply not worth it.

For more information on SB 537, read our previous blog posts:

• SB 537: Say NO to Medicare Reimbursements
• SB 537: Arbitrary Medicare Reimbursement Hurts Physicians

Make your voice heard and contact your senator.