Unacceptable Regulations
Monday, December 16, 2013 | 2
On Dec. 6, the California Division of Workers' Compensation 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.
(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 six 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 more than 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.
Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.
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