Regs Need More Work

Friday, October 15, 2010 | 0

By Julius Young
Boxer & Gerson

The Schwarzenegger administration is beginning to wind down, but the folks over at the Division of Workers' Compensation must be plenty busy.

Consider their project list....Revise schedule for payment of doctors, the RBVS.....revise the qualified medical evaluator regulations to plug the loophole that permits traveling docs to dominate the system.....change reimbursement for spinal surgery hardware....devise E-billing regs..... unveil ambulatory service center regs...promulgate revised utilization review regs.....

Many of these are part of the "12-Point Plan" to help control medical cost escalation in California workers' comp.

Today, though, let's focus on the revision of utilization review regulations.

The DWC posted a forum on those regs through Oct. 7. There was lively comment from various stakeholders. Many of the comments focused on the proposed RFA. That's the request for authorization form that would be required from doctors seeking treatment authorizations.

For those who didn't check out the forum, here are summaries of some points made by selected parties which I found to be of interest:

Dr. Michael Bazel of Bell Medical Center:
The RFA as drafted requires doctors to fill in information that they may not know, thus potentially delaying care
Tthe requirement that only a single treatment request can be made on the RFA form is problematic. Bazel notes that, "If the patient is given three different medications and ordered three x-rays and needs to start physical therapy, that translates into seven forms".
Notes a that the proposed regs as re-drafted in 9792.9(3) seem to allow a carrier to make a decision up to 14 calendar days from receipt of the completed RFA, which does not track the 14-day language of Labor Code 4610(g)(1)

Joe Martinez, CBO Director of Concentra:
Providers need time to phase in any new forms; the new forms are "significant operational and financial burdens on providers" and providers need a "significant bump in the overall fee schedule"

Jerrold Garrard of GSG Associates:
Suggests that a RFA should be defined as complete only if accompanied by a Doctor's First Report form or a PR-2 or a narrative report

Reina Archuleta of Southland Spine and Rehabilitation Center:
Language should be added that an insurer's failure to respond at all within seven days to a request for authorization should be deemed an approval

Dr. Gary Brazina:
Expresses concerns that the regs attempt to circumvent true "peer-to-peer" consultation, noting that "medical sub specialization has advanced to such a degree that the "peer to peer" needs to remain intact because of the rapid changes in treatment options and the need to thoroughly be acquainted with the risks and benefits of different treatment algorithms."

Rita Bradley, RN at Anthem Workers Compensation:
Has an issue with one single treatment request per form; notes that "most surgeries can contain one to 12 requests on them. I think that there should be comment stating that the requests must be specific and attached to the MD report, using this sheet as a cover sheet."

Robert Gonzales:
The RFA requires a lot of unnecessary information.
The "biggest obstacle to timely treatment, particularly in non-State Compensation Insurance Fund cases is that insufficient information (reports) are provided to the medical review physician. Quite often there are prior (QME, AME, PQME and PTP) reports which the reviewing physician needs to review in order to make a timely, intelligent decision. Usually the adjuster simply passes the PTP's recommendation to UR without this necessary, supporting documentation even though the adjuster knows that the PTP's recommendations are being made pursuant to prior AME, PQME, PTP etc's recommendation or prior peer to peer agreements. Who should be responsible for providing this information initially to UR: the busy doctor's ofice or the busy adjuster?"

Johnella Shackelford, injured worker:
"I am an injured worker who has had great difficulty getting medical treatment. My doctors are totally impacted because they must send numerous requests for authorization for treatment with no response or a denial or modification by the claims administrator. I have had to go to court many times ( three, four or more months after the request) to receive treatment with proof that a proper request was made with an improper denial or modification or no response at all. Even though penalties for unreasonable delay of medical treatment have been properly requested in court, no penalties have been imposed. It in fact appears that the court is not aware or is not following the laws that require an approval of the treatment when UR has not been properly followed. I have also reported the employer/insurance company many times to the Medical Unit including indexed proof of the failures. The Medical Unit has not taken any action and has been totally unhelpful.

"So it is imperative that actions not be taken which add more burden to the injured worker and his/her medical providers. More and more physicians are reluctant to accept workers' compensation patients. And patients like me don't feel that we are getting the best or deserved treatment by some doctors who do accept them. Please realize that the doctor is in business and must make a profit. Running injured workers through like sardines should not be the goal. It doesn't meet the constitutional or labor code laws to provide efficient, effective and prompt medical treatment. Watering down Sandhagen is not helpful to the purpose. Please reconsider that the employers and insurance companies have unlimited resources and are paid a fair and large fee for their services. Adding one more nail in the coffin of the injured worker is not what your agency should be about."

It's unknown how soon the DWC will repspond to the comments on the proposed UR reg revision. Many past regulations have gone through multiple revisions before adoption.

Following are the comments I forwarded to the DWC. Some echo comments made by others and some are new suggestions:

One of the troubling problems with UR not addressed by the regs that should be addressed is what information a treating doctor has to submit and what information ALREADY IN THE ADJUSTER'S POSSESSION that the adjuster should be required to submit to the UR reviewer.

The RFA is a good start (but improveable as notes by some of the forum comments). In my practice I have seen lots of variations on the following:
The doctor will request a scan, PT, EMG etc etc. The file may be a fat file where treatment has gone on for some time and many things tried.
The doctor submits only the treatment request letter which is in a PR-2 or narrative progress report format. The doctor does not submit a big sheaf of reports that were written by the doctor over months or years of treatment. Those many ongoing reports have over time ruled out other diagnoses, detailed treatments that were not sought and explained results of treatments that were offered. The adjuster sends none of those background materials to the UR reviewer, even though the adjuster has those in the adjuster's file.

Surely those reports already in the adjuster's file that provide contextual information are "the information reasonably necessary to make the determination" which are required by L.C. 4610(g). Yet the adjuster does not send them. Why should the adjuster not be required to send more records to UR, including QME reports, AME reports or the last year of treatment records? Why should doctors be burdened with providing records to the UR when defendant's adjuster has not done so?

The end result of this of course is often that treatment is non-certified and then the worker goes off to get an attorney and the system is burdened with more QME disputes and more disputes at the WCAB.

Another version of this is where the worker has been on medications for years, yet the defendant does UR before certifying refills each time. Although this may be improper review under McLean 2009 Lexis NPD 126, it happens often. In many cases, if the meds are not refilled the worker can go into shock or withdrawal. The regs do not adequately deal with these situations.

The regs should require the adjuster to send a reasonable amount of contextual records, including QME and AME reports. Or the regs could say that if the reviewer does not have enough information, the carrier is to provide those contextual records within a strict timeframe which if not
observed defaults to certification of the request.

The regs should also specify if a request is delayed, modified or denied, the transmittal letter to the worker and the attorney should be required to have attached to it a copy of the doctor's request. As attorneys we frequently get UR denials referring to PR-2 or narrative report treatment requests where we as attorneys have not been served with the report by the adjuster. We end up objecting reflexively to a denial but do not really know what was requested in the first place. Sometimes we call the worker and the worker does not understand what the doctor requested or why. The worker sometimes is not even sure whether he or she wants the treatment that has not been certified. Yet we are supposed to object within 20 days to start a QME process when we are not served with the doctor's report. It's absurd and frankly, offensive.

Another big problem not addressed by the regs is the conflict of interest where UR companies are captive companies or subsidiaries of the insurer. UR has become a profit center and loss adjustment expenses have risen significantly as a portion of premium. A regulation that would require UR by outside companies would lessen the conflict of interest or appearance of conflict of interest.

Julius Young is an applicants' attorney for Boxer & Gerson in Oakland. This column was reprinted with his permission from the firm's blog, http://workerscompzone.com