The Attack on IMR
Notice of Utilization Review Findings
SB 863 was indeed a major reform effort and we all knew that there would be the inevitable rise of “unintended consequences,” which seem to always stem from any wide body of change, especially when applied against existing claims with real time issues. Since the rising cost of medical benefits has been at the central core of this reform, it was long-expected that there would be a fight over the implementation of Independent Medical Review (“IMR”) for medical necessity issues. Well, here we go again.
I am seeing a growing number of applicant attorneys firing off a “form letter” in which they challenge the utilization review process and by extension, entitlement to IMR. Sometimes the challenge is just a conclusion but others are actually making a “grocery list” of alleged errors and procedural imperfections. These attorney form letters are often “coupled” with a wholesale demand for documents and information requested from the defendant. Also, these letters usually “threaten” a DOR for Expedited Hearing unless you agree to authorize the disputed medical care under the RFA. The plan here is to get to an Expedited Hearing before IMR can run its course and then attempt to convince a WCJ to issue an order awarding the treatment, based upon some non-compliance element.
For now, I want to address a SINGLE issue, which seems to arise in most of the “form letters” I am getting. That is the legal contention that the notice of utilization review findings MUST BE SIGNED BY THE PHYSICIAN.
For any RFA relating to an injury on or after 1/1/2013 and where the decision on the RFA is communicated to the requesting physician on or after 7/1/2013, regardless of the date of injury, the new UR regulations under 8 CCR 9792.9.1 apply as well as the IMR regulations under 8 CCR 9792.10.3 et. seq.
THE REGULATION: the applicable regulation is 8 CCR 9792.9.1(e)(1) which states in part: “The review and decision to deny, delay, or modify a request for medical treatment must be conducted by a reviewer, who is competent to evaluate the specific clinical issues involved in the medical treatment services, and where these services are within the scope of the individual’s practice.”
THE LABOR CODE: Labor Code 4610(e) states: “No person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services, and where these services are within the scope of the physician’s practice, requested by the physician may modify, delay, or deny requests for authorization of medical treatment for reasons of medical necessity to cure and relieve.”
Neither the Labor Code nor the regulations therefore require that the reviewing physician actually sign the notice of utilization review findings.
Now, we know that a majority of RFA’s are being approved, so do we hear applicant attorneys complaining that the approval notices were not signed by the reviewer? I don’t think so. The argument of course applies only to an RFA where the reviewer makes a denial or modification.
Seriously, if applicant attorneys really believed that the notice of utilization findings had to be signed by the physician reviewer, then they would take the broader argument that ALL such unsigned reports are flawed.
Remember, utilization findings ARE NOT medical reports and should not be treated as medical reports, since their value and their use are limited to medical necessity issues and the application of evidence based medicine guidelines against the RFA. The reviewers do not examine the patient and they are not permitted to make a diagnosis or even give clinical impressions.
• A notice of utilization review findings by a reviewer physician is not a medical report, and therefore does not fall within the required “elements” of a medical report contained in 8 CCR 10606, in order for that medical report to be considered substantial evidence. Yes, one of those requirements is the signature, but that pertains to a “medical report,” and not a peer review finding;
• For prospective requests (which are by far the most common) we only have 5 working or business days from the date of receipt of the completed RFA within which to obtain the utilization review findings and then we have 24 hours to initially communicate to the PTP or requesting physician and then 2 business days to send the written notice of the utilization review findings, plus the IMR form filled out and the addressed envelope to Maximus. None of these time frames exist within the context of any PTP, PQME or AME reporting requirements.
This is a pure “legal issue” and one which will likely be decided on appeal to the WCAB or by the courts of appeal. In the meantime, it is recommended that you begin to prepare for this challenge by:
• As soon as you receive notice that applicant’s attorney is challenging the utilization finding on the basis that the reviewing physician did not sign the notice of utilization review findings, you should review the UR process and make sure it was timely and complete in all respects. You don’t want to try a flawed case on this issue. But, if everything “checks out,” then inform the other side that they are respectfully wrong and that you welcome the issue before the WCAB. Refer to your defense attorney to go try this single legal issue at the WCAB;
• It is a good idea to bring a short trial brief to the WCAB, noting the law and the regulations. You might also want to copy 8 CCR 10606 to show the judge that “medical reports” which do require a signature, are governing under a completely different regulation;
• Stand on your decision if the other parts of the UR process are both complete and timely. Have your defense attorney appear before the WCAB and try and get a WCJ to make an order, either way.
• Ask for a copy of the peer reviewer’s curriculum vitae (“C.V.”) as this may be important to show that the review was within the scope of that doctor’s actual practice;
• Make sure you bring a copy of the regulations with you to the WCAB, so the WCAB can review 8 CCR 9792.9.1(e).
• The C.V. from the reviewing physician would come in when applicant attorneys also make the contention that the utilization review finding was “outside of the scope” of that physician’s practice.
Stay tuned, there will be more…..