RFAs: Are They Mandatory?

Friday, June 6, 2014 | 0

As most of us in the defense community are aware, applicants' attorneys are testing the court’s jurisdiction over treatment and utilization review issues post SB 863. A common situation is when the Primary Treating Physician submits a treatment request without a DWC Form RFA (“Request For Authorization”).

Title 8 California Code of Regulations §9792.9.1(a) suggests that an RFA is mandatory for all treatment requests. Furthermore, 8 CCR §9792.6.1(t) states a treatment request must be set forth on a RFA. Moreover, it must be "completed” such that it identifies with specificity the recommended treatment and be accompanied by documentation substantiating the need for the request. There are numerous other requirements which can be found in the CCRs. However, this clear language hasn’t deterred applicant’s attorneys from litigating this issue. The actual language of the Regulations, adopted on February 12, 2014, is instructive. A clean copy of the current regulations is available here.

8 CCR §9792.6.1(a) states: “Authorization” means assurance that appropriate reimbursement will be made for an approved specific course of proposed medical treatment to cure or relieve the effects of the industrial injury pursuant to section 4600 of the Labor Code, subject to the provisions of section 5402 of the Labor Code, based on either a completed ‘Request for Authorization,’ DWC Form RFA, as contained in California Code of Regulations, title 8, section 9785.5, or a request for authorization of medical treatment accepted as complete by the claims administrator under section 9792.9.1(c)(2), that has been transmitted by the treating physician to the claims administrator. Authorization shall be given pursuant to the timeframe, procedure, and notice requirements of California Code of Regulations, title 8, section 9792.9.1, and may be provided by utilizing the indicated response section of the ‘Request for Authorization,’ DWC Form RFA if that form was initially submitted by the treating physician."

The claims administrator is instructed to turn to 8 CCR §9792.9.1(c)(2) for a determination as to whether the request for treatment authorization has been “accepted”. Subsection (B) states that “The claims administrator may accept a request for authorization for medical treatment that does not utilize the DWC Form RFA, provided that: (1) ‘Request for Authorization’ is clearly written at the top of the first page of the document; (2) all requested medical services, goods, or items are listed on the first page; and (3) the request is accompanied by documentation substantiating the medical necessity for the requested treatment."

In Torres-Ramos v. Marquez (ADJ982471) the WCAB held there was no obligation to perform Utilization Review under where there is no RFA form because, if there is no RFA form, no treatment request has been made and the timeframes to conduct UR pursuant to Labor Code §4610 et. seq. and 8 CCR §9792.6.1. commence only when the correct and completed form is received by the defendant. However, in a prior case of Musetti v. Golden Gate Disposal (ADJ6948621) the WCAB held just the opposite! In that case, although there was no RFA, the court held that, because the defendant objected and requested a Panel QME report, it acknowledged the request for treatment and, therefore, started the UR clock.
for treatment and, therefore, started the UR clock.

How should this situation be approached? The Torres-Ramos decision is more recent and, arguably, better reasoned. However, if an objection is interposed, consideration should be given to submitting the request to UR. Another best practice would be to return any request for treatment not on an RFA form to the physician marked “Not Complete” within five business days from receipt of the request, similar to the instructions outlined in 8 CCR §9792.9.1(c)(2)(A).

Aaron Hemmings is an attorney in the Thousand Oaks office of Grancell, Stander, Reubens, Thomas and Kinsey. This column was reprinted with permission from the firm's Quarterly Review newsletter.