We just returned from another very productive bar convention sponsored by our organization (Cal. Applicant Attorney's Association or CAAA) in beautiful San Diego. We came back refreshed and re-invigorated. We are consoled by the fact that, in spite of the difficult law (SB 863) that we now operate under, our comrades-in-arms in our struggle to get benefits to our clients that they are entitled to, continue to be totally engaged in our efforts to help the injured workers navigate through this very complicated law.
There are at least two cases worth keeping our eyes on: Dubon and Stevens. We will summarize those cases for you soon.
Independent Medical Review
One of the major aspects of the new law, SB 863, is the implementation of the new Independent Medical Review Process. It became effect on January 1, 2013 for injuries that occurred on or after January 1, 2013; and on July 1, 2013 for all other dates of injuries. It was patterned after the IMR Program for group health in the Department of Managed Health Care. Implementation however of the IMR Program in the workers' compensation system changed its complexion into something that is totally different from the group health program and harmful to the injured workers in this great State of California. The authority for this program came under Labor Code sections 4060, 4061, 4062 and 4610 and implemented through the regulations written and adopted by the Division of Worker's Compensation.
Let me explain and take you through the IMR process which I divided into five (5) steps:
1. Primary Treating Physician (PTP) writes a Request for Authorization (RFA)
Primary Treating Physician (PTP) is defined in 8 CCR 9785(a)(1); Claims Administrator (CA) is defined in 8 CCR 9785(a)(3); Request For Authorization (RFA) is contained in 8 CCR 9785.5 and 8 CCR 9792.6.1(t)
8 CCR 9785(g): As applicable in section 9792.9.1, a written request for authorization of medical treatment for a specific course of proposed medical treatment or a written confirmation of an oral request for a specific course of proposed medical treatment, must be set forth on the 'Request for Authorization" DWC Form RFA contained in section 9785.5
2. Claims Administrator (CA) receives the RFA
When the RFA is received by the CA, it has two options - approve the RFA or refer it to its Utilization Reviewer (UR). It the RFA is approved by the CA, the injured worker gets the medical treatment requested by the PTP.
In the early period of implementation, it looked like most RFA's were referred by the CA to its UR. According to records studied by our organization, CAAA, denial rate of RFA by a large insurance company was as high as 62.7% On the average, about 23% (800,000) of all (3,500,000) recommended medical treatment were denied in 2013. All of those denials were appealed through the IMR but only 60,776 (7.59) were overturned by the IMR.
3. UR Denies RFA
Who are these Utilization Reviewers?
8 CCR 9792.6.1(v) tells us that "Reviewer" means a medical doctor, doctor of osteopathy, psychologist, acupuncturist, optometrist, dentist, podiatrist or chiropractic practitioner licensed by any state or the District of Columbia, competent to evaluate the specific clinical services, where these services are within the scope of the reviewers practice.
If the UR denies, delay or modify the RFA, it is subject to independent medical review.
8 CCR 10451.2(c)(1) - Where applicable, independent medical review (IMR) applies solely to disputes over the necessity of medical treatment where a defendant has conducted a timely and otherwise procedurally proper utilization review (UR).
The UR has the following time to render its decision:
Retrospective Review [8 CCR9792.6.1(u)] - 30 days of receipt of RFA with sufficient medical information [8 CCR 9792.9.1(c)(5);
Prospective or Concurrent Review - 5 business days from the date of receipt of the RFA. 8 CCR 9792.9.1(c)(3)]
Expedited Review - 72 hours after the receipt of the written information reasonably necessary to make the determination. 8 CCR 9792.9.1(c)(4) The request for expedited review must be reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the timeframe for utilization review under subdivision (c)(3) would be detrimental to the injured worker's condition.
Once the decision is made, the UR has the following timeframe:
Except for Retrospective Review, if the UR modify, delay or deny, decision shall be communicated to the requesting physician within 24 hours of the decision initially by telephone, facsimile or electronic mail then followed by a written notice to the requesting physician, the injured worker, and the injured worker's attorney within 24 hours for concurrent review, 2 business days for prospective review and 72 hours for expedited review. 8 CCR 9792.9.1(e)(3).
The written decision modifying, delaying or denying treatment authorization shall include the Application for Independent Medical Review. 8 CCR 9792.9.1(e)(5)(G).
Unless overturned by the IMR, the UR decision shall remain effective for 12 months from the date of the decision. 8 CCR 9792.10(h).
4. Application for IMR
A request for independent medical review must be filed by an eligible party by mail, facsimile or electronic transmission within 30 days of service of the written utilization review (UR) determination by filing an Application for Independent Medical Review, DWC Form IMR. 8 CCR 9792.10.1(b)(1).
The eligible parties are: the employee, the employee's attorney, if any; and the employee's designee if unrepresented. 8 9792.10.1(b)(2)(A).
The requesting physician may join with or assist the employee in seeking an independent medical review. 8 CCR 9792.10.1(b)(2)(A)(ii).
5. IMR Decision
If there appears to be any medical necessity issue, the dispute shall be resolved pursuant to an independent medical review. 8 CCR 9792.10.4(d).
Upon receipt of the Application for IMR, the Administrative Director of the Division of Workers' Compensation (AD) determines the eligibility for independent medical review. His decision can be appealed by filing a petition with the Workers' Compensation Appeals Board. 8 CCR 9792.10.3(e)
The AD delegated this responsibility to an independent review organization. At this time, it is known as MAXIMUS. The name of the reviewer or reviewers are confidential. 8 CCR 9792.10.7(f). By doing so, the determination by Maximus is the determination of the Administrative Director.
The parties may appeal a final determination of the Administrative Director by filing a petition with the Workers' Compensation Appeals Board. 8 CCR 9792.10.7(c)
However, the WCAB's en banc decision in Dubon II says that only the timeliness of the UR decision can be adjudicated by the WCAB, not the determination of the IMR.
This procedure is specially hard on injured workers who has an Award of Further Medical Care but are NOT actually getting the medical treatment prescribed by their doctor because the IMR upholds 84% of all UR denials.
Note: I am hoping that the Court will find this procedure unconstitutional because it lacks due process - we cannot cross examine the IMR reviewer and its decision is not subject to judicial review.