California: RFA (Request for Authorization) Within 1 Year of Prior UR Denial

California: RFA (Request for Authorization) Within 1 Year of Prior UR Denial

By Bruce P. White, Esq.
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SB 863 tried to address one of the problem areas in utilization reviews and that is how long does a UR decision remain in effect. Labor Code § 4610(g)(6) [LC 4610(g)(6)] states:
A utilization review decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the utilization review decision.
The statute created a four part test:
1. Is RFA made by same physician that was subject to prior UR decision?
2. Is RFA for same treatment as prior UR decision?
> If answer to both is yes, then proceed with #3 & #4.
> If answer to either #1 or #2 is no, then new UR needs to be done.
3. Is there a documented change in facts?
4. Were those facts material to the basis of the prior UR decision?
> If answer to #3 or #4 is no, then a new UR does not need to be done.
> If answer to #3 and #4 is yes, then a new UR needs to be done.
Each part of the test raises issues.
SAME PHYSICIAN. What happens if the claimant’s primary treating doctor in the orthopedic clinic is unavailable and the claimant is treated by her associate doctor in the clinic. If the associate doctor makes the same recommendation for treatment that was denied, would this be considered the same physician, or is it a new RFA.
SAME TREATMENT. PTP’s RFA for Oxycodone is denied by UR. PTP then submits RFA for Oxycontin. Is a new UR required? What if the UR denied Oxycodone and goes on to state that all narcotics are denied. Is the UR limited to exactly what was requested in the RFA.
DOCUMENTED CHANGE IN FACTS. How are the changed facts to be documented? Does the claims representative have to scour the RFA to see if facts have changed from the facts at the time of the prior RFA and UR decision. Or does the requesting physician have to specifically state the facts they believe that have changed since the UR decision.
ARE THE FACTS MATERIAL. Who determines if the facts were material to the prior UR denial? How would a claims adjuster know if a claimant’s pain increased from a 3 to a 5, it would be material to the UR doctor. Or that the UR doctor denied spine surgery because there was a 3mm disc but if it were 4mm, then she would have authorized the surgery. Or that after the UR denial, the claimant had two ESIs that did not provide relief. What if the claimant had a temporary aggravation of the condition since the UR denial. Is that material to the prior UR denial.
Is the claims adjuster even allowed to evaluate the materiality issue in light of Labor Code § 4610(e) [LC 4610(e)] which states that “No person other than a licensed physician who is competent to evaluate the specific clinical issues involved . . . may modify, delay, or deny requests for authorization of medical treatment for reasons of medical necessity to cure and relieve.” Materiality certainly seems to be a clinical issue. Does § 4610(e) apply to a denial based on § 4610(g)(6).
If the materiality test can only be decided by the UR doctor, then Labor Code § 4610(g)(6) is meaningless.
Case law will certainly need to address these issues.
© Copyright 2013 Bruce P. White, Esq. All rights reserved. Reprinted with permission.