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.
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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
Tuesday, October 1, 2013, 12:36 PM - Medical treatment under WCA DWC newsline summarizes he proposed changes in the IMR regs:
http://www.dir.ca.gov/dwc/dwc_newslines ... f#zoom=100
One particular recent concern about IMR has been the reports that Maximus was acting on cases where the carrier had failed to submit medical reports.
I wrote about that several months ago in a post titled "Sandbagged":
http://www.workerscompzone.com/index.ph ... 712-190054
Will the revised proposed regs solve this problem?
Not necessarily, it appears. As drafted, the proposed new regs do not flatly prohibit Maximus from making a determination where the carrier has either willfully or negligently failed to provide required medical records.
It needs to be emphasized that it is the carrier that has the medical reports and records.
Unrepresented workers do not have those documents. And where a worker is represented, the adjuster may not have served all of those documents on the applicant attorney despite rules that require timely service of medical reports.
Without contextual medical records, how can Maximus reviewers provide quality medical decisions?
They can't, of course.
Yet the proposed rules appear to allow Maximus to move forward in such decisions, rendering a decision.
What the rules do do is clarify that "upon receipt of credible information" of carrier failure to comply, a process to assess penalties against the carrier shall ensue.
That proposed language can be found in the following :
Section 9792.10.6(j): Upon receipt of credible information that the claims administrator has failed to has failed to comply with its obligations under the independent medical review requirements the Administrative Director shall, concurrent or subsequent to the issuance of the final determination issued by the independent review organization, issue an order to show cause for the assessment of administrative penalties against the claims administrator under new section 9792.12(c)
Reg 9792.12(c)(4) would provide for a $500 per day penalty for failure to submit the required information to Maximus, up to a maximum penalty of $5,000.
Wouldn't it just be easier to draft a rule with some teeth?
The rule could provide that an IMR determination where the records were not submitted is null and void and must be redone. Or a rule could say that if the carrier breaches its obligation to submit information, the applicant prevails on the issue by default.
Another approach that could have been taken would be to provide a grace period to applicants and their attorneys. If Maximus received no records whatsoever or if Maximus noted that key records were missing, notice of that should be forwarded to the worker to provide an opportunity to cure the problem.
Stiffening penalties is a weak solution. Most unrepresented workers are unlikely to be sufficiently well informed as to complain in order to trigger penalties. How these penalties will be handled, and in what format complaints can be rendered is not made clear.
Moreover, if the rationale for IMR in the first place is to render quality medical decisions, shouldn't any decision rendered without records be suspect.
The rules would also reduce the volume of records that a carrier is required to send to Maximus. The current regs require that one year of current treatment records be provided. Proposed reg 9792.10.5 would reduce that to require that only records going back 6 months prior to the disputed treatment request be provided.
The proposed IMR regs can be found here:
Public comments on the proposed regs are being accepted until 5 p.m. on October 11, 2013. Send your comments to firstname.lastname@example.org
Wednesday, August 14, 2013, 10:40 PM - Medical treatment under WCIn a recent post titled "Sandbagged" I noted that problems had already surfaced in how the new Independent Medical Review system is being administered.
So it was interesting to note the perspective on IMR from an injured worker that is expressed in a letter published by fellow blogger David DePaolo.
The worker outlines many of the practical problems that workers now have in contesting utilization review denials under the newly adopted Independent Medical Review system.
Here is the link to the letter, posted on DePaolo's Compworld blog: under the title "IMR, Records & The Unintended Oversight":
http://daviddepaolo.blogspot.com/2013/0 ... sight.html
Here is a link to my post "Sandbagged":
http://www.workerscompzone.com/index.ph ... 712-190054
As of this post I'm not aware that the DWC has issued any comment or guidance on some of the difficulties that appear to be arising when carriers ignore the rules and fail to send required records.
Stakeholders who wanted the IMR system should want the IMR system to be perceived as fair. If IMR is perceived as stacked against the worker it is unlikely to survive.