Utilization Review and IMR Remain Under Attack

Regarding the attack on UR and IMR.




Please recall that in Dubon I (2/27/2014) the WCAB held En Banc, that the WCAB had jurisdiction over a medical dispute, subject to the applicant’s burden of proof, when the subject UR decision was found invalid either because it was untimely or suffered from a material procedural defect.i The reasoning was that it was the WCAB which had the power to determine legal disputes over issues of compliance and timeliness under the statutes and regulations. Otherwise, timely and procedurally proper (“valid”) UR decisions over medical disputes were to be resolved solely through the IMR process. Following this decision, SCIF filed for reconsideration and the WCAB has issued a further En Banc Opinion and Order Granting Reconsideration, (5/22/2014) noting that SCIF has contended that even if the WCAB has jurisdiction over the “validity” of UR decisions, it cannot determine actually disputes over medical necessity but instead should simply order that an invalid UR decision should not be considered by IMR. The WCAB has therefore granted reconsideration in order to further study the factual and legal issues. But, pending further decision, Dubon I shall remain in effect and is binding.


DUAL ACTIONS: Some applicant attorneys are taking a “dual” approach, first by claiming that the UR decision is either untimely or procedurally defective and therefore deemed invalid and are therefore filing a DOR for Expedited Hearing on the disputed medical necessity issue. The second prong of the attack is to start the advocacy process within IMR, which will include, among other things, perhaps the SDT records of the claims file and the gathering of other records by SDT and then furnishing a medical record “book” with cover letters from either the applicant’s attorney, the PTP or both to Maximus. This starts the “paper war.”

ARE MEDICAL-LEGAL-REPORTS AND CHARGES COMING BACK?: At least one applicant’s attorney has taken the position that upon a disputed medical necessity issue, the applicant has the right to request the PTP prepare a “comprehensive medical-legal report,” citing multiple Labor Code Sections, including 4660, 4061, 4061.5, 4062, 4062.2, 4610, 4610.5, 4620, 4622, 4625, 5307.1 and 5703. The PTP is being asked to title the report as such and that it should be billed as a medical-legal report.

WE DON’T KNOW WHAT CONSTITUTES A MATERIAL DEFECT: Even with Dubon I, there is no established clarity as to what constitutes a material procedural defect vs. a minor technical or immaterial defect. For example:

• MUST A UR REPORT BE SIGNED? 8 CCR 9792.9.1(e)(5)ii provides that the “decision” shall be signed either by the reviewing physician or the claims administrator, but we still don’t know whether an unsigned UR report is deemed a material procedural defect.

• WHAT IF THE UR DECISION IS TIMELY BUT THE NOTICE TO THE DOCTOR IS LATE?: The time frames seem rigid and applicant attorneys often cite Sandhagen, but my position is that if the UR decision to deny, delay or modify is made timely within 5 business to no later than 14 calendar days, and the initial decision is made timely but the written follow-up is late, that this should not be a material defect. But this has not been decided yet.

TROUBLE AHEAD?: [HOGENSON v. VOLKSWAGEN CREDIT, INC.]; ARE MPN PHYSICIANS SUBJECT TO UR? There is a case pending right now on reconsideration, which if decided adversely by the WCAB, either En Banc or even as a “Significant Panel Decision,” could impact the landscape of UR as it applies to an MPN. In Hogenson v. Volkswagen Credit Inc. (ADJ214516], the RFA for medications came from a MPN physician. The contention by applicant’s attorney is that an MPN physician’s RFA is not subject to UR. The WCJ found that the MPN provides a 2nd and 3rd opinion process (Lab C 4616.3) and that the statute provides for control by the defendant over the choice of the physicians within the MPN. The WCJ has stated in his Report and Recommendations on Petition for Reconsideration: “The MPN statutory scheme excludes the use of the Utilization review reports from consideration in disputes over treatment by the employer’s treating physician. Further, given the statutory construction described hereinabove, either a Defendant cannot require Applicant to treat within an MPN but may submit all treatment requests through the UR/IMR process.iii Please keep in mind that applicant’s attorneys will likely herald any favorable disposition of this reconsideration petition as a finding in their favor and this could start a storm of opposition to any attempts to conduct UR within the defendant’s MPN. We don’t know what the WCAB panel will decide or whether this will become yet another En Banc decision, but you can bet that the issues being raised here are probably the most profound threat to IMR yet to take place.

i According to the decision, a material procedural defect is one which undermines the integrity of the UR decision. (pp2). Here, that defect was the failure to include numerous medical reports and records for UR review, including the results of a discogram, reports of the PTP, Dr. Brown and even the report from the AME, Dr. Rotterman.
ii “The written decision shall be signed by either the claims administrator or the reviewer, and shall only contain the following information specific to the request. . . “
iii Report and Recommendations on Petition for Reconsideration pp. 5


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