Retrospective UR - When it is Appropriate?

Saturday, February 25, 2006 | 0

by York McGavin

Simple questions require simple answers. There are only two answers.

1. Retrospective UR is appropriate if the provider has failed to submit a prospective request prior to furnishing services.

2. Retrospective UR is appropriate if the CA or UR timely requests additional information necessary to make a determination.

While toiling in the trenches at my local WCAB, I have noticed defendants increasingly attempting to rely upon a retrospective UR when the ER has failed to timely respond to a prospective request for authorization. This is improper, and the retrospective UR report should be inadmissible at trial.

FAILURE TO SUBMIT PROSPECTIVE REQUEST

However, there are times when a retrospective UR is appropriate, and legally admissible. If the treating physician has failed to issue a request for authorization (DFR or PR-2) prior to furnishing treatment and submitting the billing, it is indeed appropriate for the CA to conduct retrospective UR.

A good example would be if the EE/IW has sought and obtained treatment from a non-occupational physician for an industrial injury and the non-occupational physician simply submitted the billing without compliance with the reporting requirements of CCR 9785.

I see this type of scenario upon occasion, but it is the exception, not the rule.

PROSPECTIVE REQUEST SUBMITTED
AND EMPLOYER TIMELY REQUESTS ADDITIONAL INFORMATION

CCR 9792.9 is quite germane in regards to the proper timely steps to be taken by the ER/CA when conducting a retrospective UR.

Initially, CCR 9792.9(a) is unequivocal: "The request for authorization must be in written form."

Upon receipt of the "request for authorization" from the treating physician, the burden shifts to the CA to timely respond. CCR 9792.9(b)(1) is crystal-clear: "Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the injured worker's condition, not to exceed five (5) working days from the date of receipt of the written request for authorization."

Thus, if all necessary information is included or attached to the request for authorization (DFR or PR-2), the CA is to respond within "five (5) working days from the receipt of the written request for authorization."

However, if additional information is necessary for the CA to make a determination is not included or attached to the request for authorization, then CCR 9792.9(b)(2) becomes operative: "If appropriate information which is necessary to render a decision is not provided with the original request for authorization, such information may be requested within five (5) working days from the date of receipt of the written request for authorization to make the proper determination. In no event shall the determination be made more than 14 days from the date of receipt of the original request for authorization by the health care provider."

Thus, if additional information is required to "render a decision" then "such information may be requested within five (5) working days from the date of receipt of the written request for authorization to make the proper determination."

According to a plain-text reading of CCR 9792.9(b)(2), if the CA decides additional information is necessary to make the determination, "such information" is to be requested within "five (5) working days from receipt of the written request."

In a situation where the CA has requested additional information, the burden then shifts back to the treating physician to provide this information. If the additional information requested by the CA is not timely furnished by the treating physician, then CCR 9792.9(b)(2)(A) becomes applicable: "If the reasonable information requested by the claims administrator is not received within 14 days of the date of the original written request by the provider, the claims administrator may deny the request with the stated condition that the request will be reconsidered upon receipt of the information requested."

Accordingly, if the original request for authorization is lacking sufficient information for the CA to make a determination, the CA must request the "appropriate information necessary to render a decision" "within five (5) working days from the receipt of the written request for authorization." If the treating physician timely provides the requested information, then the determination by the CA must be made within fourteen "(14) days from the date of receipt of the original request for authorization by the health care provider."

On the other hand, if the treating physician fails to timely provide the additional requested information within that fourteen (14) day window, then the CA can conduct retrospective review, and issue a decision "within 30 days of receipt of the medical information that is reasonably necessary to make this determination." (See CCR 9792.9(c).)

Now is where it gets interesting. CCR 9792.9(g)(1), (2), (3), and/or (4) are specifically applicable to retrospective UR:
"(g) (1) The timeframe for decisions specified in subdivisions (b)(1), (b)(2) or (c) may only be extended by the claims administrator under the following circumstances:

(A) The claims administrator is not in receipt of all of the necessary medical information reasonably requested.

(B) The physician reviewer has asked that an additional examination or test be performed upon the injured worker that is reasonable and consistent with professionally recognized standards of medical practice.

(C) The claims administrator needs a specialized consultation and review of medical information by an expert reviewer.

(2) If subdivisions (A), (B) or (C) above apply, the claims administrator shall immediately notify the physician, the provider of goods, if any, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney in writing, that the claims administrator cannot make a decision within the required timeframe, and specify the information requested but not received, the additional examinations or tests required, or the expert reviewer consulted. The claims administrator shall also notify the physician, the provider of goods, if any, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney of the anticipated date on which a decision will be rendered. This notice shall include a statement that if the injured worker believes that a bona fide dispute exists relating to his or her entitlement to medical treatment, the injured worker or the injured worker's attorney may file an Application for Adjudication of Claim and Request for Expedited Hearing, DWC Form 4, in accordance with sections 10136(b)(1), 10400, and 10408.

(3) Upon receipt of information pursuant to subdivisions (A), (B), or (C) above, the claims administrator shall make the decision to approve, modify, or deny the request for authorization within five (5) days of receipt of the information for prospective or concurrent review. The decision shall be communicated pursuant to subdivision (b)(3).

(4) Upon receipt of information pursuant to subdivisions (A), (B), or (C) above, the claims administrator shall make the decision to approve, modify, or deny the request for authorization within thirty (30) days of receipt of the information for retrospective review."

CCR 9792.9(g)(1), and (f)(1)(A) is germane as to whether a retrospective review is appropriate and admissible:

(g)(1): "The timeframe for decisions specified in subdivisions (b)(1), (b)(2) or (c) may only be extended by the claims administrator under the following circumstances:
(g)(1)(A): "The claims administrator is not in receipt of all of the necessary medical information reasonably requested."

Turning back to CCR 9792.9(b)(2), it is clear that if additional information is necessary to make the determination, "If appropriate information which is necessary to render a decision is not provided with the original request for authorization, such information may be requested within five (5) working days from the date of receipt of the written request for authorization to make the proper determination."

Thus, it is clear that if the CA requires additional information necessary to make a determination, the information is to be requested by the CA within "five (5) working days from the date of receipt of the written request for authorization."

In the event the CA requires "an additional examination or test" (See CCR 9792.9(g)(1)(B).) or "a specialized consultation and review of medical information by an expert reviewer" (See CCR 9792.9(g)(1)(C).) in order to make the determination, CCR 9792.9(g)(2) or (g)(3) applies - depending on whether the additional information was provided by the treating physician within fourteen (14) days from receipt of the initial written request.

Accordingly, if the CA timely (See CCR 9792.9(b)(2).) requests the required additional information (See (g)(1)(A): all of the necessary medical information reasonably requested; See (g)(1)(B): The physician reviewer has asked that an additional examination or test be performed; or, See (g)(1)(C): The claims administrator needs a specialized consultation and review of medical information by an expert reviewer) within "five (5) working days" from receipt of the initial written request, and the treating physician fails to provide "all of the necessary medical information reasonably requested" within fourteen (14) days from receipt by the CA of the initial written request, retrospective review is indeed appropriate once "all of the necessary medical information reasonably requested" is received.

In the event that "The physician reviewer has asked that an additional examination or test be performed" or "The claims administrator needs a specialized consultation and review of medical information by an expert reviewer," the "physician reviewer" or the "claims administrator" must "immediately notify the physician, the provider of goods, if any, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney in writing, that the claims administrator cannot make a decision within the required timeframe, and specify the information requested but not received, the additional examinations or tests required, or the expert reviewer consulted."

Due to the fact that CCR 9792.9(b)(2) specifies the timeframe to request additional information necessary to make the determination as being "five (5) working days from the date of receipt of the written request for authorization," it is clear that a retrospective UR is appropriate if the request for additional information is issued within "five (5) working days."

CONCLUSION Notwithstanding the above language, I regularly see defendants attempting to introduce a retrospective UR report when there has been a prospective request for authorization submitted by the treating physician, but the claims administrator or UR has utterly failed to respond to the prospective request for authorization.

This is a blatant attempt by the defendant to circumvent the prospective time-frame requirements for UR, and attempt to clean-up the failure to respond to the prospective request by conducting a retrospective UR, then attempting to introduce this retrospective UR report at trial.

In conclusion, it is appropriate to conduct a retrospective UR if there has been no prospective request for authorization by the treating physician.

It is also appropriate to conduct a retrospective UR if the CA or UR timely (five (5) working days from receipt of the request) requests "appropriate information which is necessary to render a decision," "an additional examination or test be performed," or "a specialized consultation and review of medical information by an expert reviewer."

However, if the treating physician has submitted a prospective request for authorization, and the CA or UR has failed to timely (five (5) working days from receipt of the request) seek additional information from the treating physician, timely (five (5) working days from receipt of the request) object and request an additional examination or test be performed, or timely (five (5) working days from receipt of the request) object on the basis there is a need from a specialized consultation and review of medical information by an expert reviewer, then a retrospective UR report is inappropriate and should be considered to be inadmissible.

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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