Bulletin 94-7

September 30, 1994

Fees for Missed Medical-Legal Appointments

Following the adoption of the medical legal fee schedule last January, there has been continuing controversy over whether or not a medical-legal evaluator may charge a fee for missed appointments, for the expense which results when a claimant fails to appear for a scheduled medical-legal evaluation.

Although a draft of the medical-legal fee schedule that went to public hearing last November included a provision stating that providers may not be reimbursed for missed appointments, this was taken out of the final adopted schedule. The primary reason this provision was taken out of the final version was the testimony that indicated fees for missed appointments had in the past been reasonably adjusted between evaluators and claims administrators without the need for regulation.

Another reason the missed appointment provision was not included in the final schedule concerns a purely legal issue. That is, absent more specific judicial or statutory guidance, it is unclear whether fees for missed appointments have any place in the medical-legal fee schedule. Section 5307.6 of the Labor Code requires that the administrative director adopt a fee schedule for medical legal expenses "as defined by Section 4620 [of the Labor Code]". Section 4620 (a) of the code defines such expense as being for "X-Rays, ... diagnostic tests, medical reports, medical records, medical testimony, and, as needed, interpreter's fees for the purpose of proving or disproving a contested claim". Nowhere in this section or elsewhere in the Labor Code is there any mention of fees for missed appointments. The Legislature or the courts may ultimately have to resolve the issue of whether or not the expense which results from a missed appointment is a medical-legal expense.

The current medical-legal fee schedule is silent on fees for missed appointments. This has been misinterpreted by some to mean that a physician cannot charge,

nor be reimbursed, for missed appointments. Section 5307.6 of the Labor Code precludes a provider from requesting or accepting compensation for medical-legal expenses "if such compensation is in addition to the fees authorized by this section." However, this same section also provides that the preclusion against additional compensation "does not apply to medical-legal expenses for which the administrative director has not adopted a fee schedule."

If missed appointment fees are ultimately found not to be a medical-legal expense, then compensation for this type of expense would be outside the reach of Section 5307.6, and providers would not be precluded from charging for them. Likewise, if missed appointment fees are ultimately determined to be a bona fide medical-legal expense, since the administrative director has not included such expense in the fee schedule, compensation for them would not be prohibited.

In sum, regardless of whether or not the expenses associated with missed appointments are properly construed to be medical-legal expenses, evaluators are not precluded from requesting or accepting compensation from an insurer, self-insured employer or third party administrator for this type of expense, despite the fact that the current medical-legal fee schedule does not address the issue.