Wednesday, December 11, 2013, 10:27 PM - Medical treatment under WCThe DWC has now issued amended proposed Independent Medical Review
These regulations attempt to clarify what materials the Maximus IMR reviewer can rely on in making an IMR determination.
My recent post titled "Unacceptable Regulations" criticized the most recent version of the IMR regs.
The DWC is under time pressure to finish IMR regs.
Unfortunately, the most recent version, though slightly better, still is problematic.
Labor Code 4610.5 (1) requires the employer to provide to IMR the relevant records, using the word SHALL (emphasis added) rather than "MAY" (emphasis added.
The prior proposed regs would appear to have allowed the Maximus IMR reviewer to make a determination based on the summary of records of a utilization reviewer at a UR provider. This would have been a disincentive for claims examiners to provide the records to Maximus if they could perhaps rely on Maximus simply following the UR summary of the records.
When IMR was sold to labor negotiators in the SB 863 negotiations, the concept was that IMR would examine the reports and make an independent determination.
The recently proposed regs strayed from that.
So what has the DWC come up with now?
Here is Labor Code 9792.10.6 (b)(2) the key provision now proposed:
"If a claims administrator fails to submit the documentation required under section 9792.10.5(a)(1), a medical reviewer may issue a determination as to whether the disputed medical treatment is medically necessary based on both a summary of medical records listed in the utilization review determination issued under section 9792.9.1(e)(5), and ￼documents submitted by the employee or requesting physician under section 9792.10.5(b) or (c). No independent medical review determination shall issue based solely on the information provided by a utilization review determination."
So what does this mean?
First, it still seems to give insurer/employer claims reps a pass re compliance with the record provision requirements of Labor Code 4610.5(1). An examiner could submit less that the 6 months of required contextual record, hoping that a few medical records and the UR summary will suffice.
That is less than required by the statute.
Unrepresented workers or represented workers whose attorneys have not been provided with medical records will be easy prey for this rapacious strategy.
The deeper question here is what is driving the DWC policy on this issue.
The DWC has better choices.
Among them are these:
A. If an employer/insurer does not provide six months of records, action is stayed and a notice is sent requiring such records within a reasonable time frame or otherwise by default the requested item is approved
B. If an employer does not provide six months of records, the worker gets the requested treatment.
C. Require less than 6 months of records, but provide some sort of form where the treating doctor is required to specify the MTUS guideline that applies or non-MTUS guideline or scientific study which applies. such a form could require the doctor to formulate a direct response to the denial rationale of the UR reviewer.
With the latest iteration of the IMR regs, it would appear that the DWC is attempting to protect claims examiners from sending all of the documents. Or is the DWC attempting to lessen the burden on Maximus, which is already horribly backlogged with a tsunami of requests and paper documentation?
This latest version of the IMR regs continue to be anti-worker.
I would like to see one of the powers that be at the DIR/DWC, Ms. Baker, Ms. Overpeck, and Ms. Zalewski, respond to these concerns in some forum.
The stakes are too high to push through these regulations, which will affect hundreds of thousands of workers.
The current draft regulations which are the "3rd 15 day comment" version
can be found here:
http://www.dir.ca.gov/DWC/DWCPropRegs/I ... OfRegs.pdf
Here is a link to my recent post:
http://www.workerscompzone.com/index.ph ... 207-172514
Saturday, December 7, 2013, 05:25 PM - Medical treatment under WCOn December 6 the DWC issued proposed revised Independent Medical Review regulations, subject to a 15 day comment period.
The proposed IMR regs contain elements that are totally unacceptable and which are, frankly, anti-worker.
First, some background.
Labor Code 4610.5(1), added as part of the 2012 SB 863 reforms, provides that upon notice from the DWC administrative director that IMR has been assigned to the IMR organization "the employer SHALL (emphasis added) provide to the independent medical review organization all of the following documents within 10 days of notice of assignment:
(1) A copy of all of the employee's medical records in the possession of the employer or under the control of the employer relevant to each of the following:
(A) The employee's current medical condition.
(B) The medical treatment being provided by the employer.
(C) The disputed medical treatment requested by the employee.
(2) A copy of all information provided to the employee by the employer concerning employer and provider decisions regarding the disputed treatment.
(3) A copy of any materials the employee or the employee's provider submitted to the employer in support of the employee's request for the disputed treatment.
(4) A copy of any other relevant documents or information used by the employer or its utilization review organization in determining whether the disputed treatment should have been provided, and any statements by the employer or its utilization review organization explaining the reasons for the decision to deny, modify, or delay the recommended treatment on the basis of medical necessity.....
It is worth highlighting that the statute is written in terms of what the employer is to provide to the IMR organization. The statute uses the term "SHALL" (emphasis provided) rather than "MAY".
The statute leaves no wiggle room on what SHALL be provided.
But it appears that the DWC is prepared to give employers a pass on what is to be provided to the IMR organization, Maximus.
Proposed reg 9792.10.5(a)(1)(A) provides that within specified time frames "the independent medical review organization shall receive from the claims administrator all of the following documents" which per 9792.10.5(a)(1)(B) is to include the following:
"A copy of all reports of the requesting physician relevant to the employee’s current medical condition produced within six months prior to the date of the request for authorization, including those that are specifically identified in the request for authorization or in the utilization review determination. If the requesting physician has treated the employee for less than six months prior to the date of the request for authorization, the claims administrator shall provide a copy of all reports relevant to the employee’s current medical condition produced within the described six month period by any prior treating physician or referring physician."
OK. So far so good.
But read on. Here's where the proposed regs give the employer's claims representative a pass.
A new provision has been inserted into the proposed IMR regs as 9792.10.6(b)(2) that reads as follows:
"If a claims administrator fails to submit the documentation required under section 9792.10.5(a)(1), a medical reviewer may, if possible, issue a determination as to whether the disputed medical treatment is medically necessary based on a summary of medical records listed in the utilization review determination issued under section 9792.9.1(e)(5), and any documents submitted by the employee or requesting physician under section 9792.10.5(b) or (c)."
In other words, a Maximus IMR reviewer would be able to make a decision without reviewing ANY (emphasis added) records, perhaps relying on a statement of a utilization review doctor who may or may not have reviewed contextual records, but who was not likely to have reviewed the records that Labor Code 4610.5(l) says "SHALL" (emphasis added) be provided to the IMR by the employer.
The effect of this will serve as a disincentive to claims reps to send records to IMR as required. In essence, a claims rep can decide that it is too difficult to prepare 6 months of contextual medical records, knowing that the Maximus doctor may just "top sheet it" by relying on the UR doctor.
In the run-up to SB 863 passage in 2013, I had discussions about IMR with prominent employer and union strategists who were key players in the negotiations. Both sides repeatedly said that IMR would result in quality medical reviews so that injured workers could get timely, appropriate and high quality care.
These proposed regs, if allowed to go into effect, will allow IMR reviewers to essentially rubber stamp the UR review.
While it is true that the proposed regs allow the workers' attorney or doctor to submit medical records, that does little for unrepresented injured workers who are the most vulnerable.
Moreover, even in cases where a worker is represented, the worker's attorney may not have his or hands on the medical reports and records in time to submit them to the IMR reviewer. Despite WCAB rules that require service of medical reports, many insurers constantly ignore such a mandate, meaning that the attorney is not in a position to submit the documents to IMR. Can't submit what you don't have.
I can understand that the DWC is in shock about the volume of IMR requests, said to be over 20,000 in October alone.
IMR and UR are to be the subject of a DWC sponsored stakeholder meeting in January. It would be ideal if all stakeholders attended with the attitude of improving the efficiency and fairness of the system.
Unfortunately, the regs as proposed will be seen as an unwelcome signal that the DWC intends to administer the IMR system in a way most unfair to workers, as well as in a way that departs from statutory requirements.
Follow me on Twitter:
Thursday, November 28, 2013, 09:54 AM - Understanding the CA WC systemWorkers' comp is not a sexy topic.
Writing a blog on a subject so specific and detailed as California workers' compensation tends to focus on what's wrong and what needs to be done to fix it.
And despite wave after wave of well intentioned reform, problems continue to pile up with the system. It seems not to matter whether the reforms were politically based or evidence based, whether the reforms were part of a negotiated compromise of broad stakeholder groups or some legislative legerdemain under the aegis of strong Capitol leadership .
You might not feel very thankful if you were a disabled worker waiting months to get a QME panel. Or months to have an anonymous physician do an IMR review on a UR decision rendered by a doctor who looked at almost none of the medical records.
So it's no surprise that there are many embittered workers and families in "the system" who feel that the benefits are neither unencumbered, expeditious or adequate.
But there are also many things to be thankful for, and here are a few:
-a corps of workers' comp judges who are mostly diligent and concerned for the welfare of California workers
-a system of "user funding" that has given the WCAB some relative stability in comparison to the funding problems recently plaguing California's civil justice system
-a workers' comp press that assiduously follows developments in the field, publishing helpful updates and analysis
-a workers' comp bar that largely (although with some outliers in the applicant and defense bar) is decent, honorable and devoted to the interests of clients
-a medical system that for all its delays, flaws and some excesses, may well be more inclusive for many workers than other forms of coverage which they would access
-at a time where there really is no consensus about how to handle large numbers of undocumented immigrants, the workers' comp system generally treats them with respect
-the very idea that a worker does not need to prove their employer or someone else was at fault to recover benefits or get medical treatment
Yes, in certain ways the California workers' comp system is dysfunctional. There is much to be done.
But today, join me in a short mental note of some of the good things.
Here's hoping that readers enjoy the holiday weekend doing something meaningful.
Sunday, November 24, 2013, 10:45 AM - Medical treatment under WCOver the last week there has been some controversy brewing about whether the DWC was illegally or unethically interfering in the IMR process.
This controversy came to light after a memo surfaced from a workers' compensation judge who attended a recent training for judges conducted by the DWC in San Francisco.
Since I was not there, I can not vouch for what was actually said.
But the memo which has made the rounds charges that DWC Medical Unit Director Rupali Das and DIR attorney Kathy Zalewski
"acknowledged that they had received phone calls from claims administrators protesting IMR decisions which had overturned UR decisions denying care. Both admitted that they had intervened with Maximus to issue new decisions upholding the disputed UR decisions denying medical care to injured workers."
The memo mused whether "Injured workers may rightly question whether this is independent medical review".
Apparently this set off alarm at the DWC, causing a clarifying memo to be sent from the DWC, noting that "some of the discussion of DWC's quality oversight of Independent Medical Review (IMR) determinations was imprecise."
The DWC clarified that it does do random reviews of IMR determinations made by Maximus. Further, "in addition, interested members of the public may call particular determinations to DWC's attention. In those instances, the determination at issue is reviewed by Dr. Das and other DWC and Maximus staff. "
However, the DWC's clarifying e-mail claims that "No inquiry from a party of the public has resulted in a determination being reversed."
According to the DWC, the determination is several cases was not overturned on the merits because of a complaint from a party.
Rather, the DWC says that "On two occasions, amended determinations were issued in cases where Maximus made a determination on the merits in the absence of medical records provided by the parties. Both determinations were rescinded, as the cases were deemed ineligible for IMR by DWC due to the lack of records."
An article written by Greg Jones, Western Bureau Chief for Workcompcentral.com quotes DWC spokeswoman Erika Monterroza as claiming that IMR decisions 13-602 and 13-740 had been rescinded.
Monterroza was quoted as follows:
"In these two cases, there had been no UR determination on the merits of the treatment requested because no records were available for the UR reviewer. As such, those cases should have been deemed ineligible for IMR from the outset, but were not. The determinations were rescinded on the basis of the disputes' ineligibility for IMR and until there are UR determinations on the merits, there is no basis to resubmit them for IMR review."
The article by Jones points out that in at least 4 cases (IMR 13-676, 13-10-3, 13-114 and 13-119) the UR decision was upheld even though the claims administrator had not submitted records.
There is no indication that the DWC intervened to invalidate those decisions.
The concern here of some is over whether the DWC is cherry-picking and taking sides. That may be the casee.
But then again it may be that the DWC , with limited resources , has simply not had the ability to do oversight in all needed cases but did do it in some selected cases.
A fix to all of this could be achieved through clear regulations. Maximus would not be permitted to act on any case where records had not been made available to the UR reviewer. Maximus would not be permitted to act on any case where records were not supplied to the IMR reviewer as required by the IMR regs. Any review undertaken by Maximus under those situations would be null and void. An adjuster's failure to provide records to the UR reviewer or the Maximus reviewer would constitute a waiver of any objection to the treatment.
Such a policy would encourage compliance by adjusters and incentivize them to provide records. Moreover, it would relieve the DWC from concerns that it was improperly intervening in the process.
Saturday, November 16, 2013, 04:09 PM - Medical treatment under WCThe long-awaited Valdez decision is finally here.
In a November 2013 decision, the California Supreme Court handed a victory to injured workers in that it rejects the notion that California statutes only allow reports of network MPN doctors into evidence in benefit disputes.
That was essentially the position of the California Workers Compensation Appeals Board, which held in an July 14,2011 en banc decision that where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible.
In so holding the statewide WCAB was dealing with a situation in which the applicant attorney obviously tried to take "medical control" by sending the worker to a doctor of the lawyer's choice, a doctor who was not on the Medical Provider Network adopted by the employer.
This is a strategy often employed in Southern California, where many attorneys refer workers to non-MPN doctors who have been willing to treat.
Often those doctors would treat "on a lien", with the result being a primary factor in a huge lien backlog at many Southern California WCAB district offices. The strategy has not been used so much in Northern California, since the pool of doctors willing to treat under such arrangements has historically been much smaller north of Fresno.
By "taking medical control", the worker's attorney could often get reports that served as a basis for temporary disability payments or even as a basis for rating permanent disability. Proponents of this approach asserted that friendly doctors would order the requisite tests, often bypassing the treatment denials that plagued other workers.
Opponents cited the costs of this approach, complaining that some doctors had cozy relationships with attorneys, ordering every diagnostic test known to modern medicine, running up huge bills in the process.
So all of this was fodder for the 2012 legislative fix known as SB 863.
Trying to create a patch to prevent this, SB 863 did three things. First, it tightened up the law on MPNs in various ways. Labor Code 4603.2(a)(3) makes it clear that where a worker impermissibly treats outside the MPN, the employer will not be liable for treatment costs. MPN validity is now an issue to be decided by expedited hearing. Second, Labor Code 4605 was amended to limit the effect of reports by unauthorized non-network physicians. While the employee may still get at his or her own expense a consulting or attending physician, 4605 now provides in part that "Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation". Third, lien procedural hurdles were enacted.
Some of the lien provisions of SB 863 are currently in doubt, but the other two provisions make the "medical control" strategy significantly riskier than before.
So after the enactment of SB 863, some may find the Supreme Court's Valdez decision anti-climactic.
As the Supreme Court decision notes, "These statutory changes may encourage employees to use MPN services. However, they do not foreclose other avenues of treatment, or bar the Board from considering medical reports generated outside of an MPN when it reviews applications for disability benefits."
The en banc WCAB decision was troubling.
One could easily imagine situations where a workers' comp judge should be able to consider the opinion of worker-obtained non-network doctors.
Perhaps a worker obtained such opinion at his or her own expense, having diagnostic tests that were not authorized through the MPN. Perhaps the worker pursued tests or treatment outside the utilization review/Independent Medical review gauntlet that currently seems so dysfunctional. Those tests and treatments may have yielded critical information.
And at the end of the day, a worker should be able to present some evidence of his or her choice on her own case.
The pendulum may have swung towards cookie-cutter justice, but the result in Valdez allows some daylight for workers' and their attorneys.
The court's opinion in Elayne Valdez v. Workers'Compensation Appeals Board and Warehouse Demo Services can be found here:
The WCAB's en banc decision in Valdez can be seen here:
http://www.dir.ca.gov/wcab/EnBancdecisi ... ldezE2.pdf