Two qualified medical evaluators (QMEs) who where challenging the Division of Workers’ Compensation’s decision not to renew their certifications were recently granted a trial on February 6, 2018. At that time, the Los Angeles Superior Court is expected to rule on whether or not the Division is using “underground regulations” to justify denying recertification to hundreds of QMEs.
While the preliminary injunction to immediately reinstate the QMEs’ certification was denied in a recent proceeding, Los Angeles Superior Court judge James Chalfant stated the plaintiffs had rights to a ‘swift’ hearing. He also admitted the plaintiffs had presented good arguments supporting their allegations about the Division’s use of underground regulations, although he was unclear if he had jurisdiction over this matter.
The judge’s statements in RPNA’s contentious fight against the Department of Industrial Relations’ and Division of Workers’ Compensation are significant, says Nicholas Roxborough, who filed the case (Howard v DIR) on behalf of three QMEs. “If we can convince the judge that he has jurisdiction over this matter, we have a strong indication that he will most likely rule in our favor, namely, that the DWC did not comply with the Administrative Procedures Act (APA) when they set new criteria for QME’s without the required rulemaking process to implement the change.”
State rules require a hearing before an administrative law judge before the Division can revoke a QME’s certification, explains Roxborough. However, the Division has been denying QME reapplications by letter, without ever providing a hearing, citing alleged billing violations under the med-legal fee schedule as justification.
Judge Chalfant said ‘one would think QMEs would be entitled to a hearing within three months of denial,’ yet RPNA’s clients and many other QMEs have been waiting as much as a year or more, explains Roxborough.
Workers’ Comp Executive (WCE) recently reported on the latest developments in this case. To read the article, which details the allegations made by both sides of this issue, click here.
Roxborough is currently preparing a brief on the court’s ability to review the Division’s compliance with the Administrative Procedures Act, which governs agency rulemaking. The brief is due in early January. For questions about the due process right of QMEs and more information about this complaint, please contact Nicholas Roxborough, Burton Falk or David Carman at 818.992.9999 or via firstname.lastname@example.org.