Focus on Utilization Review

Tuesday, April 17, 2012 | 0

A key focus of upcoming legislative or regulatory proposals in California's workers' comp system will be escalating medical costs, measures used to contain costs, and the costs of those measures.

It's striking that almost everyone seems unhappy with the current system. Workers and doctors are frustrated with the delays and hassles of the utilization review system.

These delays can cause considerable suffering and delay return to work, throwing the worker and families into financial crisis, particularly with the 104-week limitation on temporary total disability.

And many stakeholders are now uncomfortable with the expanding price tag of cost containment.

So there could be tinkering with utilization review procedures. Proposals to eliminate UR altogether will surface, replacing it with an independent medical review scheme that is used with California's managed care health insurers (more on that in posts to come). Those proposals could include appealable IMR or, most extreme, a non-appealable IMR.

But if IMR does not come to pass and UR survives, there are many things that could be done.

Why should an insurance carrier be allowed to have a financial interest in a UR company?

Financial conflicts and financial incentives of UR physicians need to be better spelled out.

If an employer can pick doctors to be on its own medical provider network network, should it be allowed to UR the medical requests of the doctors it selected?

Shouldn't UR be reserved for medical procedures that exceed a certain dollar threshold? Does a cane or a brace need to be UR'd?

Should a carrier be allowed to do utilization review again and again on medication requests even where the medicines have been prescribed for a long time?

Shouldn't the rules be clarified to require the carrier to provide adequate contextual medical records to the UR physician?

The law and regulations could be tightened to simplify the UR timeframes and clarify the process of appealing UR denials. Using the qualified medical evaluator system to appeal every UR denial is costly and unworkable.

But lest you think this is an applicant laundry list, there are many other changes that could be considered as part of a UR and treatment overhaul.

Perhaps the system could require more clarity from treating doctors on the history of their treatment, the goals and progress toward those goals.

If a test or procedure is to be repeated, a higher threshold of documentation could be required.

Doctor mills which churn out constant procedures and half a dozen medications (or more) on each patient could be required to give a deeper analysis of the long term care plan and the costs and benefits.

In treatment requests, doctors could be required to explain more of the risks and side effects of medications and procedures. For example, how many physicians document the dental risks of certain opioids, which may lead to claims of consequential dental injury?

Tie breaker procedures of the sort currently used for spinal surgery could be used for other types of surgeries or medical device use.

A special protocol could be set up for handling opioid treatments.

MPN regulations and lien regulations could be tightened to make it less appealing for doctors in accepted cases to risk treatment on a lien (something that currently happens on a regional basis).

Special focus could be given toward long term chronic treatments and how to achieve a cost-benefit balance in such situations.

Employers who wanted to offer workers the option of bringing their treatment in-house to employer-sponsored group health plans should be allowed to do so.

And of course, doctor pay could be adjusted.

A shift from the California fee schedule to a Medicare-based Resource Based Relative Value Scale (RBRVS) has been discussed, but not implemented.

And outcome based pay to medical providers could be considered. More on that later.

I recognize that some of these concepts are anathema to legal and medical colleagues I know and respect.

But a train is rumbling down the track. Lots of things are in play.

Julius Young is an applicants' attorney with Boxer & Gerson in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.