Requests for Diagnostic Authorization and LC 4610

Sunday, March 28, 2004 | 0

The following question on need for pre-authorization for diagnostic studies was recently posted in the workcompcentral.com Professional Forum in the Medical section. The editors felt the topic and user responses would be of benefit to the workers' compensation medical community, so the material is presented here in article format with substantial editing for readability.

Question: Must the carrier respond to a written request for authorization to perform diagnostic studies (not treatment) within 14 working days, even if the file is in utilization review? If so, what recourse do we have when the insurance company does not respond within the 14 days and there is a billing objection?

Answer #1: Assuming that the request for authorization is being made after 1/1/04 and Labor Code ("LC") 4610 applies, the time frame for responding is 5 days from the time the claims administrator has all of the necessary information to make a decision to authorize, delay, deny or modify treatment, but under no circumstance is the response to take more than 14 days.

The question of what happens after the 5 day/14 day time frames has passed without a response is an open one at this time. It seems likely that there may be an administrative penalty (ie: audit penalty). The code does not specify a consequence to failure to respond. LC 4610.1 suggests that at least one possible consequence my lie in the application of LC 5814 but I do not think that this section is automatically applicable, there must still be a showing of unreasonable delay).

Answer #2: I always have been of the mindset that ALL requests should be communicated on paper, in the treatment plan section of the Doctors First Report of Injury or Illness (DFR) or in the treatment plan section of the Primary Treating Physicians Progress Report (PR-2).

By submitting ALL requests for authorization on paper (DFR or PR-2), one will never have to address a denial by the adjuster of the telephonic request ever being made by the provider. In short, leave a paper trail.

The real issue has to do with whether "diagnostic studies (not treatment)" are medical-legal. "A medical-legal expense means any costs and expenses incurred by or on behalf of any party, the administrative director, the board, or a referee for X-rays, laboratory fees, other diagnostic tests, medical reports, medical records, medical testimony, and, as needed, interpreter's fees, for the purpose of proving or disproving a contested claim." (LC 4620).

If the diagnostic study you reference is performed on an applicant, after the defendant has denied industrial causation, and the test is capable of proving or disproving a contested issue, then it is Medical-Legal.

On the other hand, if it is performed prior to the defendant denying AOE/COE, or if the test is not capable of proving or disproving a contested issue, or if the testing is on an accepted injury claim, then the diagnostic test IS treatment.

There are so very many variables that will subject your question to different correct answers. Is the applicant now in the chronic phase (i.e. greater than 90 days post injury)? Was the applicant diagnosed with multiple diagnosis codes to different body parts? Is the ICD-9 code, or are the ICD-9 codes, addressed by ACOEM? Does the payor have a current Utilization Review plan on file with the Administrative Director (all payors using UR must have a plan on file with the AD no later than 1/1/04 - LC 4610.1)?

Let's assume that the diagnostic test is on an accepted injury claim; the request was made in writing; the written request was made post 1/1/04; all reports necessary for the payor are attached to the written request; the injury was traumatic and was sustained 10/01/03; and, the payor does have a current UR plan on file with the AD.

If you made your written request post 1/1/04, the applicant is already in the chronic phase and ACOEM becomes inapplicable. Being as the injury was traumatic, this is one more reason ACOEM is not applicable. Multiple diagnosis codes for different body parts injured in the same incident also throws a curve ball at the ACOEM Guidelines.

LC 4610(g)(1) mandates that "Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee's condition, not to exceed five working days from the receipt of the information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician." (Italics added for emphasis.)

In my view, any delay, without a request for additional information, exceeding 14 days is unreasonable. Also, to be conservative, I would interpret the phrase "from the date of the medical treatment recommendation by the physician to mean from the date the request is received by the payor.:"

In regards to retrospective review, LC 4610(g)(1) states, "In cases where the review is retrospective, the decision shall be communicated to the individual who received services, or to the individual's designee, within 30 days of receipt of information that is reasonably necessary to make this determination."

In a case where the payor refuses to respond to a request for treatment, and the treatment is provided, the review automatically becomes retrospective. According to LC 4610(g)(1), once the payor has all information "reasonably necessary" to make a determination as to medical necessity, the decision must be communicated to either the applicant, or the provider, if the provider has been designated as the applicant's designee, within 30 days.

In my view, this means that the payor has to schedule a defense QME where the applicant is actually examined and/or evaluated by the defense QME. It is well settled case law that the report from a defense doctor who has never set eyes upon the applicant is inadmissible. (See Czarnecki v. Golden Eagle Insurance Company, 63 CCC 742)

You may also find LC 4610(g)(3)(A) to be of interest. "Decisions to approve, modify, delay, or deny requests for authorization ... shall be communicated to the requesting physician within 24 hours of the decision...If the request is not approved in full, disputes shall be resolved in accordance with Section 4062."

In short, per LC 4610(g)(3)(A), the decision to modify, delay, or deny must be communicated to the requesting physician within 24 hours of the decision being made.

Answer #3: I agree that the employer is required to give LC 4062 notice to the injured worker to allow a QME evaluation, but is not required to have a report within 30 days, or frankly at all, in order to apply the ACOEM guidelines to medical treatment. The Guidelines are directly admissible before the WCAB and where applicable, are presumptively correct,( perhaps to past claims perhaps not we will have to wait for the final answer on that issue.) However the guidelines are admissible even if the presumption is held to not apply to pre 1/1/04 injuries as are treatment protocols of medical societies (under LC 5703(h)).

A medical legal evaluation is not necessary and if obtained can even be rebutted by the presumptively correct guidelines. I find nothing in the statute which requires a QME evaluation within 30 days or any time frame.. Retrospective denial can be based on a UR decision without a QME opinion. The real issue will be presenting evidence at the WCAB and admissibility of the treatment guidelines is one option available to the defendant, a QME evaluation is another.

It is also correct that the guidelines have limited applicability to chronic care however some applications are universal in scope. If the treatment is one which the guidelines indicates is inappropriate (as an example Manipulation Under Anesthesia for spinal injuries or chiropractic manipulation for wrist and elbow injuries), it does not have to be authorized at all. While the decision to delay, deny or modify treatment requires the opinion of a physician (this part has been substantially the same since mid 1995 when ADR 9792.6 was implemented) operating within the scope of his/her practice, the evidence at the WCAB can consist of the relevant portions of the guidelines.

The treatment guidelines do have a section on chronic pain but the scope of application is significantly more limited than the majority of circumstances where the guidelines are useful which is generally in the first 90 days or so of treatment and provides for considerably more latitude in acceptable treatment.

While the labor code does provide that treatment can be to cure or relieve, that only focuses on a portion of the statute. The entire language is: "reasonably required to cure or relieve from the effects of the injury shall be provided by the employer". The system is being directed to focus on the requirement for reasonableness as part of the determination into what constitutes appropriate medical treatment.

We are very likely in for a period of some turbulence from a medical perspective while we sort out how these guidelines are going to be applied and how much credence the WCAB is going to give to them. In the meantime it behooves medical providers to make certain that their treatment practices are designed to provide reasonable and appropriate medical treatment and not be treated as an annuity contract to which they are a third party beneficiary.

Contributing to the Forum topic, and to this article, were York McGavin and Jake Jacobsmeyer.



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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.