California: Independent Medical Review – Which One Applies To What?

There is much confusion over the two Independent Medical Reviews in the California workers’ compensation system: MPN-IMR and UR-IMR. Attorneys should beware of mixing apples and oranges when it comes to these two separate and distinct processes.  This article hopefully will clarify the issues and point you in the right direction so that you can save some embarrassment when you talk to your colleagues, your opponent, or a judge about IMR.

By Robert G. Rassp, Esq.

Summary of UR and IMR Emergency Regulations and Checklist for Compliance

Introduction

There is a huge amount of confusion within the California workers’ compensation community about independent medical review (IMR) – how and when does it apply and where to find the correct regulations that implement it. This article hopefully will clarify the issues and point you in the right direction so that you can save some embarrassment when you talk to your colleagues, your opponent, or a judge about IMR.

Attention Lexis Online Subscribers: Citations link to lexis.com. Bracketed citations link to Lexis Advance.

First of all, there are two separate and distinct independent medical review processes in the current workers’ compensation system, one old and one new. The old one is under Labor Code Sections 4616, 4616.3 and 4616.4 [LC 4616, 4616.3, 4616.4]. These Labor Code sections relate to medical provider networks (MPN). The independent medical review process involving MPN physicians are strictly under disputes within an MPN over an MPN physician’s diagnosis or treatment that the Applicant requests. Do NOT confuse these types of disputes with independent medical review of UR decisions where the physician, and not the injured worker, requests authorization for treatment.

The best way to describe the difference between the MPN-IMR process with the UR-IMR process is by example. Suppose an employee injured his back, reports it and is sent by the employer to an MPN physician for treatment. The MPN physician prescribes medication and orders an x-ray. The injured worker asks the MPN physician to order an MRI of his back, and the MPN physician refuses to order one. Or, the injured worker’s request could be for an epidural injection or any other treatment he or she requests the MPN physician to order, and the MPN physician refuses to send a Request for Authorization (DWC Form RFA under tit. 8 Cal. Code Regulations 9785.5 [R 9785.5]) for that treatment.

The injured worker can ask for a second and third opinion from a second and third MPN physician as to whether or not he or she gets the MRI (or epidural injection, etc.). If the second and third MPN physicians continue to refuse to order the MRI, the injured worker can ask for independent medical review as to whether or not he or she gets the MRI. In fact, the Request for Independent Medical Review under Labor Code Section 4616.4 allows the injured employee to request that the IMR physician conducts an examination of the Applicant. See Labor Code Section 4616.4(e) and tit. 8 Cal. Code Regulations section 9768.9(d) [R 9768.9].

Similarly, Labor Code Sections 4616, 4616.3 and 4616.4 relate to disputes over diagnosis. If an injured worker injured his shoulder and tells the MPN physician he thinks he or she has a torn rotator cuff and the MPN physician tells the injured worker that the diagnosis is a “shoulder strain”, then there is a dispute over diagnosis. If the second and third MPN physicians also refuse to diagnose a rotator cuff tear, then that issue can be referred to independent medical review under Section 4616.4. There is rarely, if ever, any litigation over the issue of diagnosis or treatment requested by an injured worker, or the IMR process under these MPN Labor Code sections.

The regulations that implement IMR under a dispute with three MPN physicians are tit. 8 Cal Code Regulations sections 9767.7 and 9768.1 through 9768.17 [R 9767.7, 9768.1, 9768.17]. These regulations can be found in our “Blue Book,” referenced below. The form for a Request for Independent Medical Review of a third MPN physician’s refusal to diagnose or provide treatment requested by the injured worker is 9768.10. DO NOT USE THIS FORM (found on page 905 OF THE “BLUE BOOK” Workers’ Compensation Laws  of California, 2013 Edition) for disputes over medical necessity after issuance of a utilization review denial, delay, or modification notice. The Request for Independent Medical review of a UR denial, delay, or modification is a different form and is part of the emergency regulations that you can find on pages 118-119 of the March 2013 Supplement of the “Blue Book” or at the DWC website, described below.

The second separate and distinct independent medical review process is under Labor Code Section 4610.5 [LC 4610.5] and is strictly linked to a denial of medical treatment due to medical necessity after a utilization review denial, modification, or delay determination. You must, repeat, you must read these IMR sections separately! In our example above, the injured worker requested an MPN physician order an MRI of his or her back and the MPN physician refused.

On the other hand, if the MPN physician had suggested ordering the MRI of the injured worker’s back, the MPN physician is now required to mail, fax, or email a Request for Authorization (RFA) to the claims administrator and that request may be subject to utilization review under Labor Code Section 4610 [LC 4610]. If within 14 calendar days the employer denies authorization based on medical necessity under its utilization review process, the injured worker has 30 days to request independent medical review pursuant to Labor Code Section 4610.5 and not under the IMR process for MPN physicians where the Applicant requests the actual treatment or disputes the MPN physician’s diagnosis.

For IMR of a utilization review denial, delay, or modification determination, there is no provision in the statute (Labor Code Section 4610.5) or in the proposed emergency regulations for an IMR reviewer physician to examine the injured worker.

When a treating physician sends in an RFA for treatment, case law provides some updated guidelines for whether utilization review and IMR associated with it even has to occur. In SCIF vs. WCAB (Sandhagen) (2008) 44 Cal. 4th 230, 186 P.3d 535, 79 Cal. Rptr. 3d 171, 73 Cal. Comp. Cases 981 [73 Cal. Comp. Cases 981], the California Supreme Court discussed the medical necessity of an MRI scan that had been requested by a treating physician and the claims administrator refused to authorize it based on a lack of medical necessity.

When you read the Sandhagen case, you take away some very important points about requests for authorization of treatment and the determination of medical necessity with a utilization review process under Labor Code Section 4610. The Court states that Section 4610 mandates that all claims administrators are required to have a utilization review process in place. This does not mean that every single request for authorization for treatment MUST be submitted to utilization review. Upon the receipt of a request for authorization (RFA) for treatment, the claims administrator may do the following within 5 days of its receipt of the RFA:

·   The claims examiner may simply authorize the requested treatment.

·   Treatment protocols have been pre-authorized by the claims administrator and an RFA is simply pro-forma.

·   The claims examiner may call the physician and negotiate what is being authorized and ask the doctor to resubmit his or her RFA with the agreed treatment (such as when an original RFA was for physical therapy 3 times a week for 6 weeks, the adjuster speaks to the doctor and they agree on 2 times a week for two weeks and then a reassessment is made for more therapy thereafter and the physician issues a new RFA).

·   The claims examiner defers sending the RFA to utilization review due to a dispute other than or in addition to medical necessity (such as injury AOE/COE or parts of body injured which have to be resolved under Labor Code Section 4062 [LC 4062] by way of an AME or PQME).

·   The claims examiner requests additional information directly from the physician.

·   The claims examiner puts the RFA through the claims administrator’s approved utilization review process. The UR reviewer may request more information from the provider independent of the claims examiner’s prior request, but the whole process has to end 14 calendar days from the date of the claim administrator’s receipt of the RFA.

·   Under SB 863, the claims examiner can overrule a UR denial, modification, or delay and avoid paying $560.00 for an IMR under Labor Code Section 4610.5 and 8 Cal. Code Regulations section 9792.10.8 [9792.10.8].

·   Under SB 863, the claims examiner can stop the IMR process at any time, authorize the RFA, and pay the decreased fee to the IMRO.

For the remainder of this article, the focus is on the actual statutory and proposed regulatory scheme for utilization review and IMR with a summary of proposed emergency regulations that have been temporarily adopted by the Administrative Director on Utilization Review and Independent Medical Review of a UR denial, delay, or modification determination under Labor Code Section 4610 (and not a dispute over diagnosis or treatment within an MPN).

CAUTION: You can find the proposed emergency regulations in the March 2013 Supplement to Workers’ Compensation Laws of California (aka “Blue Book”), published by LexisNexis. These new regulations govern the UR and IMR processes that pertain to utilization review denials, delays, or modifications concerning RFAs submitted on or after 7/1/13, regardless of the date of injury. The emergency regulations are adopted and renewed every 90 days by the Office of Administrative Law at the request of the Administrative Director. These emergency regulations will either expire or be renewed for an additional 90 days when they expire on October 31, 2013. You can also review the actual regulations on the DWC website (www.dir.ca.gov/dwc): Scroll to the bottom right of the home page and click “DWC PROPOSED RULEMAKING” where you will find the emergency regulations.

Counsel must pay close attention to language in the statutes and regulations discussed in this article for time deadlines. For example, when a statute or regulation refers to "30 days from the date of service" of a document, the term date of service refers to application of the "mail box rule" from CCP section 1013a [CCP 1013a] and tit. 8 Cal. Code Regulations section 10507(a)(1) [R 10507] that gives an extension of time of 5 calendar days. Also, some regulations refer to "5 business days" or "5 working days", which refers to excluding holidays and weekends. Sometimes you will see deadlines set by "14 days" or "14 calendar days", which refers to calendar days that do include holidays and weekends. The term "5 days from receipt" is defined in the regulations as the next day is "day #1."

Litigation will continue, if not ramp up, over the question of whether or not a claims administrator has complied with all of the procedures and time limitations of conducting utilization review, including timely processing of RFA forms and providing documentation to the UR reviewer. Similarly, strict time requirements apply to the IMR process and many attorneys are focusing attention on the UR process and preventing matters from being referred to IMR due to a claims administrator’s non-compliance with the UR process. Counsel are filing for expedited hearings to challenge utilization review processes and are trying to obtain judicial intervention prior to an IMR process going into effect in a given case since there is no meaningful judicial intervention over an IMR determination.

Some attorneys are doing both – challenging the UR process via expedited hearings and holding claims administrator’s feet to the fire on compliance with the emergency regulations, while also concurrently filing a Request for Independent Review of a UR denial, delay, or modification determination.

Some attorneys are mixing apples and oranges by suggesting that a second or third opinion MPN physician who requests the same treatment that a prior one did which was denied under the UR-IMR process within the previous 12 months can now proceed within a year since a new doctor examined the patient and a “change in material circumstances” has occurred. This is either a brilliant work-around the UR-IMR process or is a complete misunderstanding of the law. The WCAB will certainly have something to say about this approach.

Governing Labor Code Sections for utilization review:

Labor Code Section 4610(a) [LC 4610]: UR can be prospective, concurrent, retrospective, or expedited. (See 8 Cal. Code Regulations section 9792.9.1(c)(3)(A) [R 9792.9.1] (expedited))

Labor Code Section 4610(b) [LC 4610]: Every employer shall establish a UR process in compliance with this section, either directly or through its insurer or an entity with which an employer or insurer contracts for these services.

Labor Code Section 4610(c) [LC 4610]: Policies and procedures for a UR process shall be consistent with the MTUS under Labor Code Section 5307.27 [LC 5307.27], filed and approved by the AD, and “shall be disclosed by the employer to the employee, physicians, and the public upon request.”

Labor Code Section 4610(d) [LC 4610]: If the employer, insurer, or other entity requests medical information from a physician in order to conduct UR, the employer shall request only the information reasonably necessary to make the determination of medical necessity. Every UR process shall have a designated medical director.

Labor Code Section 4610(e) [LC 4610]: Only a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services, and where these services are within the scope of the physician’s practice, requested by a physician may modify, delay, or deny RFA for reasons of medical necessity to cure or relieve.

Labor Code Section 4610(f) [LC 4610]: Guidelines for UR evaluation must include criteria (1) Developed with involvement from actively practicing physicians; (2) Consistent with the MTUS under LC Section 5307.27; (3) Evaluated at least annually, and updated if necessary; and (4) “Disclosed to the physician and the employee if used as a basis of a decision to modify, delay, or deny, services in a specified case under review;” (5) Disclosed to the public upon request.

Subsection 4610(f)(5) [LC 4610] states that an employer shall only be required to disclose the criteria or guidelines for a specific procedure or condition requested and the that employer can charge members of the public reasonable copying and postage expenses related to disclosing criteria or guidelines pursuant to this paragraph. There is no charge to an employee whose physician’s RFA is under review.

Section 4610(g) [LC 4610] provides the 5 “working days” and 14 “days” time limit for the UR process to occur after an RFA is received by the claims administrator. The regulations indicated below are more specific but mirror the time limits for prospective, retroactive, concurrent, and expedited UR process stated in sub-section (g). See 8 Cal. Code Regulations section 9792.9.1(c)(3)(A) [R 9792.9.1] (expedited UR process).

Sub-section (g) also includes specific provisions that are new under SB 863. These include the following:

4610(g)(3)(A) [LC 4610]: If an RFA is not approved in full, “disputes shall be resolved in accordance with Section 4610.5 [IMR], if applicable, or otherwise in accordance with Section 4062.”

4610(g)(4) [LC 4610] states in part that: “If a [UR] decision to deny or delay a medical service is due to incomplete or insufficient information, the decision shall specify the reason for the decision and specify the information that is needed.”

4610(g)(6) [LC 4610]: “A [UR] decision to modify, deny, or delay 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 [UR] decision.”

[X] A SECOND MPN PHYSICIAN HAS ALSO REQUESTED RFA FOR THE SAME TREATMENT THAT WAS PREVIOUSLY DENIED VIA IMR BUT THERE IS NEW TREATING PHYSICIAN AND THERE ARE DOCUMENTED CHANGES IN THE FACTS MATERIAL TO THE BASIS OF THE PRIOR UR AND IMR NON-CERTIFY DETERMINATIONS.

4610(g)(7) [LC 4610]: “Utilization review of a treatment recommendation shall not be required while the employer is disputing liability for the injury or treatment of the condition for which treatment is recommended pursuant to Section 4062.”

4610(g)(8) [LC 4610]: “If [UR] is deferred pursuant to paragraph (7), and it is finally determined that the employer is liable for treatment of the condition for which treatment is recommended, the time for the employer to conduct retrospective [UR] in accordance with paragraph (1) shall begin on the date the determination of the employer’s liability becomes final, and the time for the employer to conduct prospective [UR] shall commence from the date of the employer’s receipt of a treatment recommendation after the determination of the employer’s liability.”

Governing Labor Code Sections for Independent Medical Review (appeals from UR denial, modification, or denial notices, and not of decisions regarding diagnosis or treatment by an MPN physician under Labor Code Sections 4616, 4616.3 and 4616.4):

Labor Code Section 4610.5(a) and (b) [LC 4610.5]: These sections and sub-sections indicate that these provisions apply ONLY to appeals from a utilization review notice of denial, delay, or modification of treatment requested under an RFA sent by a treating physician to an employer, claims administrator, or entity working for them.

Labor Code Section 4610.5(c) [LC 4610.5]: This section sets forth the definitions of “disputed medical treatment” and “medical necessity” which includes the order of legal level of preference from the MTUS to evidence based medicine to expert opinion and standard clinical medical practice guidelines.

Labor Code Section 4610.5(d) [LC 4610.5]: Indicates that the Applicant has the burden and “may” appeal a utilization review denial, modification or delay of recommended treatment.

Labor Code Section 4610.5(e) [LC 4610.5]: Indicates that a denial, delay or modification under a UR notice can only be appealed through the IMR process. The section also indicates that there is no liability for an employer or employee for treatment that has been provided but which was denied, modified or delayed by a UR notice unless the UR decision is reversed by an independent medical review decision.

Labor Code Section 4610.5(f) [LC 4610.5]: Establishes the requirement that the employer provides the employee with a one page form that is completed by the employer (or its insurer or UR entity) that constitutes a request for independent review of a UR denial, modification or delay of medical treatment. This section also sets forth the requirement that the form is sent to the employee with a self addressed envelope to the independent medical review organization (IMRO). Sub-section 4610.5(f)(3)(C) allows the employee to send the IMRO anything he or she wishes to support a reversal of an adverse UR decision.

[X] PURSUANT TO LABOR CODE SECTION 4610.5(f)(3)(C), APPLICANT HEREBY ENCLOSES THE FOLLOWING DOCUMENTS FOR REVIEW BY AN INDEPENDENT MEDICAL REVIEWER: ----

Labor Code Section 4610.5(g) [LC 4610.5]: “The independent medical review process may be terminated at any time by the employer’s written authorization of the disputed medical treatment.”

Labor Code Section 4610.5(h) [LC 4610.5] and its sub-sections indicate the employee has 30 days from the date of service of a utilization review decision on the employee to submit a request for independent medical review, or 30 days from the date of service of an order resolving a threshold issue where the employer is disputing liability for any reason other than medical necessity (e.g. AOE/COE, parts of body injured, need for any treatment under Section 4062).

Labor Code Section 4610.5(i) [LC 4610.5]: Provides an up to $5,000.00 per day administrative penalty against an employer for its delaying the independent medical review process.

Labor Code Section 4610.5(j) [LC 4610.5]: Provides that the employee can designate an agent to advocate on his or her behalf during the IMR process and a written designation of that agent cannot be assigned until after an adverse UR determination has been made. This section also empowers the injured worker’s physician to also advocate for the requested treatment: “The requesting physician may join with or otherwise assist the employee in seeking an independent medical review, and may advocate on behalf of the employee.”

[X] APPLICANT RESPECTFULLY REQUESTS THAT PURSUANT TO LABOR CODE SECTION 4610.5(j) THAT HIS OR HER TREATING PHYSICIAN JOINS AND ASSISTS THE APPLICANT IN SEEKING A PROPER AND THOROUGH INDEPENDENT MEDICAL REVIEW OF THE DENIAL, MODIFICATION OR DELAY OF TREATMENT DUE TO A UTILIZATION REVIEW ADVERSE NOTICE THAT NON-CERTIFIES RECOMMENDED TREATMENT.

Labor Code Section 4610.5(k) [LC 4610.5]: Mandates that the Administrative Director or its designee notify the parties that a request for independent review is properly being sought on a question of medical necessity. Maximus Federal Services has been designated by the Administrative Director to assume responsibility for this notification process.

Labor Code Sections 4610.5(l) through (o) [LC 4610.5]: Mandate that the employer provides the IMRO “within 10 days of notice of assignment” of IMR a list of items including medical reports and records and other documents necessary for a proper IMR process. What is interesting about sub-section 4610.5(l) is that the 10 days is not carried over to the regulations that implement the IMR process, which allows each party 15 days from the date of assignment of IMR to submit the listed documents. See tit. 8 Cal. Code Regulations sections 9792.10.4(e) and 9792.10.5(a) [R 9792.10.4, 9792.10.5] below.

Labor Code Section 4610.6 [LC 4610.6] provides the framework of the independent medical review itself and includes in sub-section 4610.6(f) that the IMR reviewer’s determination of medical necessity for a disputed medical treatment request shall be served on the employee, provider, employer, and Administrative Director.

Labor Code Section 4610.6(j) [LC 4610.6] mandates that if the IMR reviewer reverses a utilization review denial, modification, or delay notice regarding medical necessity, then the employer “shall promptly implement the decision as provided by this section unless the employer has also disputed liability for any reason besides medical necessity.”

Further sub-sections of Labor Code Section 4610.6 [LC 4610.6] provide that the employer pays the fees for IMR through a fee schedule set by the Administrative Director [see Lab. Code, § 4610.6(l)] and that decisions of the IMRO regarding medical necessity can be published [see Lab. Code, § 4610(m)].

UTILIZATION REVIEW EMERGENCY REGULATIONS – EFFECTIVE THROUGH AT LEAST OCTOBER 31, 2013

All references are to tit. 8 California Code of Regulations.

9785(d) [9785] Allows a physician to mail, fax, or email reports to claims Administrators.

9785(g) [9785] Requires treating physicians to use RFA form per section 9785.5. The RFA must include as an attachment documentation substantiating the need for the requested treatment.

9792.6.1(t) [9792.6.1] Under utilization review definitions, this section mandates that all RFA forms have to be “completed” which means all fields of the form have to be filled in. The RFA can be mailed, faxed, or emailed to the claims administrator.

[X] THE RFA IS INCOMPLETE AND DOES NOT HAVE TO BE SUBMITTED TO UR

9792.6.1(y) [9792.6.1] The utilization review process begins when the completed RFA is first received by the claims administrator.

9792.9.1(a) [9792.9.1] The PTP has to use the RFA in order to obtain authorizations for Treatment [if he or she does not use one, it is not a valid RFA].

9792.9.1(a)(1) [9792.9.1] The date of receipt of an RFA by the claims administrator is the date the electronic date stamp is on the fax or email when received or the date the form was transmitted if no date stamp.

9792.9.1(a)(2)(A) [9792.9.1] If the RFA is sent by US mail, it is deemed received by the claims administrator 5 business days after the mail was deposited into a recognized USPS facility.

9792.9.1(a)(2)(C) [9792.9.1] If none of the above applies then the RFA is deemed received by the claims administrator 5 business days after the latest date the sender wrote on the RFA.

9792.9.1(a)(3) [9792.9.1] The claims administrator has to have telephone access with a live person available by phone 9:00 a.m. through 5:30 p.m. Pacific Time on business days for health care providers to request authorizations. The claims administrator shall have a fax number, voice mail, or email for after hours requests for treatment.

9792.9.1(b) [9792.9.1] Utilization review of an RFA can be deferred if the claims administrator disputes liability for the injury or objection to treatment itself on grounds other than medical necessity [such as parts of body injured is in dispute].

9792.9.1(b)(1) [9792.9.1] Notice requirements if UR process is delayed due to non-medical necessity threshold issue such as AOE/COE is denied, or parts of body are in dispute.

9792.9.1(c)(1) [9792.9.1] “Day #1” to start the UR 5 day or 14 day process begins the day after the RFA is received by the claims administrator.

9792.9.1(c)(2) [9792.9.1] If the RFA is not complete, the claims administrator can treat it as if it is complete, or within 5 business days of its receipt send it back to the requesting physician marked “NOT COMPLETE.” The clock for the UR process re-sets when the RFA is complete.

[X] THE DWC FORM RFA IS NOT COMPLETE AND THE TIME FOR INITIATING THE  UTILIZATION REVIEW PROCESS IS DELAYED.

9792.9.1(c)(3)(B) [9792.9.1] Additional information may be requested by the UR reviewer within 5 business days from the receipt of the RFA.

[X] DEFENDANT’S UR REVIEWER FAILED TO REQUEST ADDITIONAL INFORMATION WITHIN FIVE BUSINESS DAYS OF ITS RECEIPT OF THE PTP’s RFA. SEE LABOR CODE SECTION 4610(g)(1).

[X] DEFENDANT DID NOT SEND NOTICE TO THE PARTIES WITHIN FIVE WORKING DAYS FROM ITS RECEIPT OF THE TREATING PHYSICIAN’S RFA THAT ADDITIONAL INFORMATION WAS NECESSARY TO DETERMINE MEDICAL NECESSITY. SEE LABOR CODE SECTION 4610(g)(1).

9792.9.1(c)(3)(C) [9792.9.1] If a reasonable request for additional information is made within 5 business days and the information is not received by the UR reviewer within 14 days from receipt of the RFA, the UR reviewer can deny or delay but the non-certify decision can be reconsidered upon the UR reviewer’s receipt of the requested information.

9792.9.1(d)(2) [9792.9.1] Approval of an RFA [prospective, concurrent,  or expedited] must be communicated to the requesting physician within 24 hours of the decision, by telephone, fax, or email. If notice is by telephone, a written notice shall be sent within two business days from the date of decision.

9792.9.1(e) [9792.9.1] Modifications, denials, or delays of treatment by UR decisions.

9792.9.1(e)(1) [9792.9.1] The UR reviewer has to be competent to evaluate specific clinical issues involved and the requested services have to be within the scope of the reviewer’s practice.

[X] THE UR REVIEWER IS NOT COMPETENT TO EVALUATE SPECIFIC CLINICAL ISSUES IN THIS CASE AND/OR THE SERVICES REQUESTED IN THE RFA ARE OUTSIDE THE SCOPE OF THIS REVIEWER’S MEDICAL PRACTICE.

9792.9.1(e)(3) [9792.9.1] A decision to modify, delay, or deny treatment authorization shall be communicated to the requesting medical provider within 24 hours of the decision by telephone, fax, or email. If by telephone, the claims administrator or reviewer has 2 business days to send notice in writing.

[X] THE CLAIMS ADMINISTRATOR FAILED TO TIMELY NOTIFY THE APPLICANT’S PTP THAT UR DENIED AN RFA.

9792.9.1(e)(5) [9792.9.1] A written decision by a UR reviewer to modify, delay, or deny authorization for treatment per an RFA shall be provided to the requesting physician, the injured worker, and the injured worker’s attorney, if any.

[X] DEFENDANT FAILED TO SERVE APPLICANT AND/OR APPLICANT’S ATTORNEY WITH A UR DENIAL, MODIFICATION, OR DELAY LETTER.

[X] DEFENDANT FAILED TO COMPLY WITH THE CONTENT OF THE NOTICE REQUIRED UNDER SECTION 9792.9.1(e)(5) (A) through (F).

9792.9.1(e)(G) [9792.9.1] The claims administrator must have attached and completed all fields in the Request for Independent Medical Review (IMR) (Form 9792.10.1) which shall include a self-addressed envelope [to Maximus Federal Services, the DWC’s IMR Organization]. This completed form (except for the signature of the injured worker or representative and date thereof) and envelope shall be included with the UR modification, delay, or denial notice.

[X] DEFENDANT FAILED TO INCLUDE THE REQUIRED REQUEST FOR IMR FORM 9792.10.1 WITH ITS UR NOTICE DELAYING, DENYING, OR MODIFYING A TREATING PHYSICIAN’S RFA.

9792.9.1(d)(H) [9792.9.1] The claims administrator shall send the injured worker and his attorney, if any, notice that the injured worker has 30 calendar days from receipt of an adverse UR notice to request IMR.

[X] DEFENDANT FAILED TO TIMELY NOTIFY APPLICANT AND HIS ATTORNEY OF THE APPLICANT’S RIGHT TO SEEK INDEPENDENT MEDICAL REVIEW OF A UR NOTICE OF DELAY, MODIFICATION OR DENIAL OF TREATMENT.

9792.9.1(f) [9792.9.1] The time for UR decision can be extended if the UR reviewer needed more information and it was not received, or if the reviewer needs to consult with another expert, or the reviewer wants a test performed on the Applicant.

9792.10.1 INDEPENDENT MEDICAL REVIEW

9792.10.1(c)(1) [9792.10.1] If at the time of the UR decision the claims administrator is disputing liability for any reason besides medical necessity, the employee has 30 days after service of a notice to the employee that the other dispute has been resolved to file a Request for Independent Medical Review.

9792.10.1(c)(2) [9792.10.1] If the claims administrator does not comply with 9792.9.1 or 9792.9.1(e), Applicant has an extension of time to file a Request for IMR from the date the claims administrator complies with those sections.

9792.10.1(d) [9792.10.1] An internal UR appeals process is allowed but the 15 day time limit for the internal UR appeal does not stay the 30 days for submitting a request for IMR.

9792.10.3(d) [9792.10.3] If there is a medical necessity issue, the IMR process applies unless it is deferred because the claims administrator is disputing liability for treatment for other reasons besides medical necessity (unless the claims administrator wants IMR anyway).

9792.10.4 [9792.10.4] Within 1 business day from a decision that a disputed medical treatment is subject to IMR, the IMR Organization shall send notice to the parties.

9792.10.4(e) [9792.10.4] Part of the notice sent to the parties must include a statement that the parties have 15 calendar days from the date of the notice to have the IMRO receive the required documents from the parties under section 9792.10.5.

[X] DEFENDANT FAILED TO COMPLY WITH 9792.10.4 BY FAILING TO SEND ALL REQUIRED DOCUMENTS UNDER SECTION 9792.10.5 TO THE IMRO WITHIN 15 DAYS FROM THE DATE OF NOTICE FROM THE IMRO INDICATING THE WITHIN MEDICAL DISPUTE IS SUBJECT TO IMR UNDER LABOR CODE SECTION 4610.5.

9792.10.5(a) [9792.10.5] Within 15 calendar days of receipt of the mailed IMRO notice of assignment of IMR, the claims administrator shall provide to The IMRO:

9792.10.5(a)(1)(A) [9792.10.5]: One year of the Applicant’s treating physician records prior to the date of the RFA.

9792.10.5(a)(1)(B) [9792.10.5]: UR delay, denial, or modification notice.

9792.10.5(a)(1)(C) through (F) [9792.10.5]: The claims administrator has to send anything the injured worker wants sent along with all documents the UR doctor had been sent by the claims administrator, plus anything new that was produced by the parties or requesting provider.

9792.10.5(b)(1) through (b)(2) [9792.10.5] Provides the employee has 15 days following receipt of notification that IMR has been assigned to send anything he or she wants to send to the IMRO. The employee has to send copies of anything he or she sent to the IMRO to the claims administrator pursuant to section 9792.10.5(b)(2).

9792.10.5(c) [9792.10.5] If the IMRO requests information, the parties have 5 business days after receipt of the request to submit the documents to the IMRO with service on the other side.

9792.10.6(a) [9792.10.6] The claims administrator may terminate the IMR process at any time if it authorizes the RFA in writing.

The following checklist summary is included so that counsel can refer to issues that may arise in cases in which a checklist of compliance with the Labor Code and emergency regulations will be helpful. This checklist is not exclusive and counsel can find additional issues to raise both on behalf of the Applicant and the Defendant if and when the UR process or IMR process can be subject to judicial intervention on account of a procedural, notice, or legal defect. 

UR-IMR CHECKLIST SUMMARY 

[X] THE RFA IS INCOMPLETE AND DOES NOT HAVE TO BE SUBMITTED TO UR. See Tit. 8 Cal. Code Regulations section 9792.6.1(t).

[X] THE DWC FORM RFA IS NOT COMPLETE AND THE TIME FOR INITIATING THE UTILIZATION REVIEW PROCESS IS DELAYED. See Tit. 8 Cal. Code Regulations section 9792.9.1(c)(2).

[X] DEFENDANT’S UR REVIEWER FAILED TO REQUEST ADDITIONAL INFORMATION WITHIN FIVE BUSINESS DAYS OF ITS RECEIPT OF THE PTP’s RFA. SEE LABOR CODE SECTION 4610(g)(1) and Tit. 8 Cal. Code Regulations section 9792.9.1(c)(3)(B).

[X] DEFENDANT FAILED TO AUTHORIZE, DENY, DELAY, OR MODIFY REQUEST FOR AUTHORIZATION FOR TREATMENT FROM APPLICANT’S TREATING PHYSICIAN WITHIN 14 CALENDAR DAYS OF ITS RECEIPT OF AN RFA. See Labor Code Section 4610(g)(1).

[X] DEFENDANT DID NOT SEND NOTICE TO THE PARTIES WITHIN FIVE WORKING DAYS FROM ITS RECEIPT OF THE TREATING PHYSICIAN’S RFA THAT ADDITIONAL INFORMATION WAS NECESSARY TO DETERMINE MEDICAL NECESSITY. SEE LABOR CODE SECTION 4610(g)(1) and Tit. 8 Cal. Code Regulations section 9792.9.1(c)(3)(B).

[X] THE CLAIMS ADMINISTRATOR FAILED TO HAVE TELEPHONE ACCESS WITH A LIVE PERSON AVAILABLE BY PHONE 9:00 AM THROUGH 5:30 PM PACIFIC TIME ON BUSINESS DAYS FOR HEALTH CARE PROVIDERS TO REQUEST AUTHORIZATIONS. THE CLAIMS ADMINISTRATOR FAILED TO HAVE A FAX NUMBER, VOICE MAIL, OR EMAIL FOR AFTER HOURS REQUESTS FOR TREATMENT. See tit. 8 Cal. Code Regulations section 9792.9.1(a)(3).

[X] THE UR REVIEWER IS NOT COMPETENT TO EVALUATE SPECIFIC CLINICAL ISSUES IN THIS CASE AND/OR THE SERVICES REQUESTED IN THE RFA ARE OUTSIDE THE SCOPE OF THIS REVIEWER’S MEDICAL PRACTICE. See Labor Code Section 4610(e) and tit. 8 Cal. Code Regulations section 9792.9.1(d)(1).

[X] THE CLAIMS ADMINISTRATOR FAILED TO TIMELY NOTIFY THE APPLICANT’S PTP THAT UR DENIED AN RFA. See tit. 8 Cal. Code Regulations section 9792.9.1(d)(2)

[X] DEFENDANT FAILED TO SERVE APPLICANT AND/OR APPLICANT’S ATTORNEY WITH A UR DENIAL, MODIFICATION, OR DELAY LETTER. See tit. 8 Cal. Code Regulations section 9792.9.1(e)(5).

[X] DEFENDANT FAILED TO COMPLY WITH THE CONTENT OF THE NOTICE REQUIRED UNDER SECTION 9792.9.1(e)(5)(A) through (F).

[X] DEFENDANT FAILED TO INCLUDE THE REQUIRED REQUEST FOR IMR FORM 9792.10.1, PROPERLY COMPLETED AND WITH A UR NOTICE DELAYING, DENYING, OR MODIFYING A TREATING PHYSICIAN’S RFA. See Labor Code Section 4610(f) and tit. 8 Cal. Code Regulations section 9792.9.1(e)(5)

[X] DEFENDANT FAILED TO TIMELY NOTIFY APPLICANT AND HIS ATTORNEY OF THE APPLICANT’S RIGHT TO SEEK INDEPENDENT MEDICAL REVIEW OF A UR NOTICE OF DELAY, MODIFICATION OR DENIAL OF TREATMENT. Tit. 8 Cal. Code Regs section 9792.9.1(e)(5)(H).

[X] DEFENDANT FAILED TO COMPLY WITH 9792.10.4 BY FAILING TO SEND ALL REQUIRED DOCUMENTS UNDER SECTION 9792.10.5 TO THE IMRO WITHIN 15 DAYS FROM THE DATE OF NOTICE FROM THE IMRO INDICATING THE WITHIN MEDICAL DISPUTE IS SUBJECT TO IMR UNDER LABOR CODE SECTION 4610.5. See tit. 8 Cal. Code Regulations section 9792.10.5(a).

[X] APPLICANT RESPECTFULLY REQUESTS THAT PURSUANT TO LABOR CODE SECTION 4610.5(j) THAT HIS OR HER TREATING PHYSICIAN JOINS AND ASSISTS THE APPLICANT IN SEEKING A PROPER AND THOROUGH INDEPENDENT MEDICAL REVIEW OF THE DENIAL, MODIFICATION OR DELAY OF TREATMENT DUE TO A UTILIZATION REVIEW ADVERSE NOTICE THAT NON-CERTIFIES RECOMMENDED TREATMENT.

[X] A SECOND MPN PHYSICIAN HAS ALSO REQUESTED RFA FOR THE SAME TREATMENT THAT WAS PREVIOUSLY DENIED VIA IMR BUT THERE IS NEW TREATING PHYSICIAN AND THERE ARE DOCUMENTED CHANGES IN THE FACTS MATERIAL TO THE BASIS OF THE PRIOR UR AND IMR NON-CERTIFY DETERMINATIONS. See Labor Code Section 4610(g)(6).

[X] PURSUANT TO LABOR CODE SECTION 4610.5(f)(3)(C), APPLICANT (OR DEFENDANT) HEREBY ENCLOSES THE FOLLOWING DOCUMENTS FOR REVIEW BY AN INDEPENDENT MEDICAL REVIEWER: ----

© Copyright 2013 LexisNexis. All rights reserved. Excerpts of this article will appear in a forthcoming edition of Rassp & Herlick, California Workers’ Compensation Law, Seventh Edition (LexisNexis).

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