California: What Does This Mean?

The DWC has now issued amended proposed Independent Medical Review (IMR) regulations.

These regulations attempt to clarify what materials the Maximus IMR reviewer can rely on in making an IMR determination.

My recent post titled "Unacceptable Regulations" criticized the most recent version of the IMR regs.

The DWC is under time pressure to finish IMR regs.

Unfortunately, the most recent version, though slightly better, still is problematic.

Labor Code 4610.5 (l) requires the employer to provide to IMR the relevant records, using the word SHALL (emphasis added) rather than "MAY" (emphasis added).

The prior proposed regs would appear to have allowed the Maximus IMR reviewer to make a determination based on the summary of records of a utilization reviewer at a UR provider. This would have been a disincentive for claims examiners to provide the records to Maximus if they could perhaps rely on Maximus simply following the UR summary of the records.

When IMR was sold to labor negotiators in the SB 863 negotiations, the concept was that IMR would examine the reports and make an independent determination.

The recently proposed regs strayed from that.

So what has the DWC come up with now?

Here is Labor Code 9792.10.6 (b)(2) the key provision now proposed:

"If a claims administrator fails to submit the documentation required under section 9792.10.5(a)(1), a medical reviewer may issue a determination as to whether the disputed medical treatment is medically necessary based on both a summary of medical records listed in the utilization review determination issued under section 9792.9.1(e)(5), and documents submitted by the employee or requesting physician under section 9792.10.5(b) or (c). No independent medical review determination shall issue based solely on the information provided by a utilization review determination."

So what does this mean?

First, it still seems to give insurer/employer claims reps a pass re compliance with the record provision requirements of Labor Code 4610.5(l). An examiner could submit less that the 6 months of required contextual record, hoping that a few medical records and the UR summary will suffice.

That is less than required by the statute.

Unrepresented workers or represented workers whose attorneys have not been provided with medical records will be easy prey for this rapacious strategy.

The deeper question here is what is driving the DWC policy on this issue.

The DWC has better choices.

Among them are these:

A. If an employer/insurer does not provide six months of records, action is stayed and a notice is sent requiring such records within a reasonable time frame or otherwise by default the requested item is approved

B. If an employer does not provide six months of records, the worker gets the requested treatment.

C. Require less than 6 months of records, but provide some sort of form where the treating doctor is required to specify the MTUS guideline that applies or non-MTUS guideline or scientific study which applies. such a form could require the doctor to formulate a direct response to the denial rationale of the UR reviewer.

With the latest iteration of the IMR regs, it would appear that the DWC is attempting to protect claims examiners from sending all of the documents. Or is the DWC attempting to lessen the burden on Maximus, which is already horribly backlogged with a tsunami of requests and paper documentation?

This latest version of the IMR regs continue to be anti-worker.

I would like to see one of the powers that be at the DIR/DWC, Ms. Baker, Ms. Overpeck, and Ms. Zalewski, respond to these concerns in some forum.

The stakes are too high to push through these regulations, which will affect hundreds of thousands of workers.

The current draft regulations which are the "3rd 15 day comment" version can be found here:

http://www.dir.ca.gov/DWC/DWCPropRegs/IMR/3rd15DayCommentPeriod/IMR_TextOfRegs.pdf

Here is a link to my recent post:

http://www.workerscompzone.com/index.ph ... 207-172514

Julius Young
www.workerscompzone.com
www.boxerlaw.com
Twitter:
Julius Young@workerscompzone
© Copyright 2013 Julius Young. All rights reserved. Reprinted with permission.

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