Less Than 30 Days to Go

by Steve Kline, Esq.
Legal Counsel
EK Health Services®, Inc.

Close to 95% of the California reform, SB 863, will go in to effect on July 1, 2013—less than 30 days away.  The remaining items, mainly concerning Medical Provider Networks, will become effective on January 1, 2014.

In one area of the system, specifically, the Independent Medical Review (IMR), the community has had some experience since the beginning of the year through the Emergency regulations.

How does that experience, albeit limited, predict what’s to come in just a few days?

One caveat --- the permanent regulations have not been finalized and there still may be some adjustments that could impair my soothsaying ability.

Utilization Review and the Independent Medical Review

In a major change—the Division of Workers’ Compensation (DWC) requires the use of a request for authorization (RFA) form to request treatment for injured workers.  This form must include attachments substantiating the need for the requested treatment.

If a claims examiner wants to contest the body part for which the treatment is requested, they must send a written objection.  That dispute must be resolved before UR is conducted via the AME/ PQME  method (Labor Code 4062).

Another significant change is a revision to the standards that determine whether a treatment is medically necessary and appropriate. The new law provides that lower ranked standards may only be used, “if every higher ranked standard is inapplicable to the employee’s medical condition.”

The standards ranked in hierarchical order are as follows:

  1. The Medical Treatment Utilization Schedule (MTUS)
  2. Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service
  3. Nationally recognized professional standards
  4. Expert opinion
  5. Generally accepted standards of medical practice
  6. Treatments that are likely to provide a benefit to a patient for conditions which other treatments are not clinically efficacious

This means that if MTUS resolves the UR issue, no other standard can be used.

Any UR determination to deny or partially certify a request for medical treatment still must be made within the 5/14 day time limits.  That determination must be in writing and must be accompanied by an IMR Application - partially completed,  & an envelope addressed to the Administrative Director.

All the documents must be sent to the injured worker and if represented, his/her attorney.  This now means two US Mail packages, increasing the cost until we can find a way to email or fax an envelope to the attorney.

An injured worker or his/her attorney wanting to dispute the determination must communicate the request for IMR to the AD within 30 days of service of the determination.  Executing a formal Proof of Service will clearly and inexpensively establish the service date.

Upon receipt, the AD will review the IMR application and, if determined to be a proper request for IMR, a notice will be sent to the claims administrator and injured worker.  Once notified, the claims administrator has 12 – 15 days to provide several different categories of medical records and documents to the Independent Medical Review Organization (IMRO).  These will include the last six months of treatment records with copies of any records not previously served on the injured worker or his/her attorney.

The IMRO—Maximus Federal Service— will conduct a de novo review, and make its own determination of medical necessity and appropriateness.  The DWC is publishing those IMR decisions and are available online.

If a treatment is determined by the IMRO to be medically necessary & appropriate, the claims administrator has five working days from receipt of the IMR decision to authorize that treatment.

Any denial of treatment, whether by IMR or UR, is valid for 12 months, unless a documented change in circumstance or conditions is shown.

The injured workers’ right to appeal the IMR decision is limited by statute. Except for challenges on the basis that the law is unconstitutional that have been threatened, the resort to the WCAB should be rare.

In five months, there have been about 450 IMR applications filed. That number could pale in comparison as to what may be coming.  Rumor has it that applicant attorneys will attempt to implode the system by filing as many IMR applications as possible—at the cost of the claims administrator, of course.    The fee for an IMR is paid by the claims administration, so care must be taken in responding to an IMR application.  A UR decision that partially certified 4 PT visits instead of the requested 8 may not be cost effective.

This is our new world come July 1. The challenge is to adjust and adapt.  Making the workers' compensation system more cost effective is possible, but there may be some bumps along the way.

Good luck to us all.

--- Stephen L. Kline, Esq.

The Legal Ease articles are provided for informational use only and are not intended to constitute legal advice or the opinion of Stephen L. Kline, Esq. These articles do not create an attorney-client relationship. You should not act or rely upon any information contained herein without seeking the advice of your own attorney as the information contained herein may change as statutes, regulations, and/or cases are promulgated.