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By David Bryan Leonard, Esq.
© Copyright 2013 LexisNexis. All rights reserved.
This is Part 2 of a two-part article. Read Part 1 here.
Processing of IBR Request by the Administrative Director
After the secondary review, and after the provider submits the proper request and fees for IBR, § 9792.5.9 details how the IBR request must be processed. Once the IBR is received, the Administrative Director (“AD”) will determine if the IBR request is not eligible for IBR. To make this determination, the AD will consider: (Regulation 9792.5.9(a))
(1) The timeliness and completeness of the request;
(2) If a second request for review of the bill was completed;
(3) Whether medical treatment was authorized under Labor Code section 4610;
(4) If the required fee for the review was paid;
(5) Any previous or duplicate requests for IBR of the same bill for medical treatment services or bill for medical-legal expenses;
(6) If the dispute contains any other issue than the amount of payment of the bill;
(7) If any other reasons exist for denial of the IBR application.
If the IBR request is accepted, the AD will notify the participants that IBR is eligible for assignment to an IBRO. The AD’s notification will contain: (Regulation 9792.5.9(b))
(1) A IBR case identification number;
(2) The date the IBR request was received by the AD
(3) A statement that the claims administrator may dispute the submitted bill’s eligibility for IBR.
Any document filed with the AD must be served on the other party. If prior documents were submitted, the subsequent document must contain a written description of the prior documents and list the date served. (Regulation 9792.5.9(c)) Upon receipt of additional documents requested, the AD will make another review to determine if the IBR request is not eligible for review. (Regulation 9792.5.9(d)) If AD’s review finds that the request is ineligible for IBR, the AD will issue a written determination informing the participants that the request is not eligible for IBR and the reasons therefor. (Regulation 9792.5.9(e)) If a request is deemed ineligible, the provider shall be reimbursed the amount of $270.00. (Regulation 9792.5.9(e)(1)) In addition, the provider or the claims administrator may appeal an AD eligibility determination with the WCAB. A copy of the appeals must be served on all interested parties, including the AD. The appeal must be filed within 30 days of receipt of the AD’s determination. (Regulation 9792.5.9(e)(2))
If the AD finds the IBR request is eligible the AD shall assign the request to an IBRO for an independent bill review. Upon assignment of the request, the IBRO shall notify the parties in writing that the request has been assigned to that organization for review. (Regulation 9792.5.9(f)) The IBRO notification shall contain:
(1) The name and address of the IBRO;
(2) A independent bill review case or identification number;
(3) Identification of the disputed amount of payment made by the claims administrator.
After the assignment to the IBRO, the request shall immediately be assigned to an independent bill reviewer who does not have any material professional, familial, or financial affiliation with any of the individuals, institutions, facilities, services or products as described in Labor Code section 139.5(c)(2) to review and resolve the dispute. (Regulation 9792.5.9(g)) The IBRO has conflict management obligations. If it finds a conflict of interest, it will refer the case to another IBR. (Regulation 9792.5.9(h)-(i)).
First Review by IBRO
§ 9792.5.10 details the IBR process after documents are received by the IBRO. To begin, the IBRO must first review all the information provided by the parties. If additional information is required, the IBRO will advise the parties in writing to request the information. (Regulation 9792.5.10(a)) If the IBRO requests additional information, the party shall file the documents within 32 days of the request. The filing party shall serve the non-filing party with the documents requested by the IRBO. (Regulation 9792.5.10(b)) No other documents shall be provided to the IBRO. (Regulation 9792.5.10(c))
Settlement While IBR Is Pending
§ 9792.5.11 addresses the issue of settlement while IBR is pending. Specifically, after submission of all required documents, the provider may withdraw the request for IBR before a determination is made. Discontinuation of IBR shall be made by written joint request for withdrawal. The request may be submitted in writing and by both parties. (Regulation 9792.5.11(a)) There is no provider reimbursement of fees if the IBR is withdrawn by joint request. (Regulation 9792.5.11(b))
Consolidation of IBR Requests; IRBO’s Powers
Because of the cost of IBR, providers may want to consider consolidating separate cases into a single file. Consolidation is discussed in Regulation 9792.5.12. Here, a provider may request combining two or more requests for independent bill review together to resolve payment disputes in a single IBR determination issued. In order to be familiar with the consolidation process, an understanding of the terms of art is required, which are defined in subsection 9792.5.12(b). These terms of art are “Common issues of law and fact” and “Delivery of similar or related services”.
The AD will allow consolidation of two or more requests for IBR by a single provider if the AD or the IBRO determines that the requests involve common issues of law and fact or the delivery of similar or related services. (Regulation 9792.5.12(c)) IBR consolidation request must be issued by a single provider that has multiple dates of medical treatment services involving one injured employee, one claims administrator, and one billing code under an applicable fee or contract and the total amount in dispute does not exceed $4,000.00. (Regulation 9792.5.12(c)(1))
For multiple billing codes, the medical provider may request consolidation when multiple billing codes are presented as one request if the request involves one injured employee, one claims administrator, and one date of medical treatment service. (Regulation 9792.5.12(c)(2))
The IBRO has the final say. Once an initial showing is presented to the AD, the IBRO may allow the consolidation of requests or independent bill review by a single provider showing a possible pattern and practice of underpayment by a claims administrator for specific billing codes. Requests to be consolidated under the pattern or practice exception shall involve multiple injured employees, one claim administrator, one billing code, one or multiple dates of service. The IBR’s capacity is limited to aggregate amounts in dispute of up to $4,000.00 or individual amounts in dispute less than $50.00 each. (Regulation 9792.5.12(c)(3))
A medical provider requesting the consolidation of separate cases must pay the filing fee and specify all of the cases for IBR that it seeks to be consolidated. The request for consolidation shall include a description of how the requests involve common issues of law and fact or delivery of similar or related services. If consolidation has been granted, no other disputes can be added to the consolidated case. (Regulation 9792.5.12(d))
The IBRO may break down a consolidated case into separate independent bill review requests if the IBRO concludes that consolidation is not warranted. If consolidation is dissolved, then the individual fee must be paid for each individual case. (Regulation 9792.5.12(e))
If the IBRO does not agree that a case warrants consolidation, the IBRO must immediately provide written notice to the parties stating the reasons for disaggregation. The IBRO must also detail the additional fee or fees required to perform the IBR. (Regulation 9792.5.12(e)(1)) Within ten (10) days after notice of disaggregation, the provider must submit any additional fee or fees necessary to conduct IBR. The failure to provide the additional fee or fees shall subject the request to a determination of ineligibility. (Regulation 9792.5.12(e)(2))
IBR’s Power to Make Fee Schedule and Contract Determinations
IBRs can make fee schedule and contract determinations. If a request for IBR involves the application, a contract or the Official Medical Fee Schedule (OMFS) for the payment of medical treatment as defined in Labor Code section 4600, the independent bill reviewer shall apply the provisions of sections 9789.10 to 9789.111 to determine the additional amounts, if any, that are to be paid to the provider. (Regulation 9792.5.13(a)-(b))
IBR’s Power to Resolve Medical Legal Fee Schedule Disputes
IBRs can also resolve Medical Legal Fee Schedule disputes. If the request for independent bill review involves the application of the Medical-Legal Fee Schedule (M/L Fee Schedule) for services defined in Labor Code section 4620, the independent bill reviewer shall apply the provisions of sections 9793-9795 and 9795.1 to 9795.4 to determine the additional amounts, if any, that are to be paid to the provider. (Regulation 9792.5.13(c)-(d))
Regulation 9792.5.14 sets forth the IBR’s response time. Within sixty (60) days of the assignment of a dispute to the IBR, the reviewer shall issue a written determination, in plain language, if any additional amount of money is owed the provider. The determination must state the reasons for the determination along with the information received and relied upon by the independent bill reviewer in rendering the determination. (Regulation 9792.5.14(a))
If the IBR finds any additional amount of money is owed to the provider, the IBR determination shall also order the claims administrator to reimburse the provider the amount of the filing fee along with any additional payments owing. (Regulation 9792.5.14(b))
The IBR’s determination must be served by the IBRO on the provider, the claims administrator and the Administrative Director. (Regulation 9792.5.14(c))
The IBR determination shall be deemed to be the determination of the Administrative Director and shall be binding on all parties. (Regulation 9792.5.14(d))
Implementing an IBR Finding
Regulation 9792.5.15 details the process of implementing an IBR finding. Upon receiving the determination of the AD that additional money is owed to the provider on a bill for medical treatment services or bill for medical-legal expenses, the claims administrator shall, unless appealed under subdivision (b), pay the additional amounts set forth in the determination per the timely payment requirements set forth in Labor Code sections 4603.2 and 4603.4. (Regulation 9792.5.15(a))
An adverse finding by the AD may be appealed by either party by filing a verified petition with the WCAB and serving a copy on all interested parties, including the AD, within 20 days of mailing of the determination. (Regulation 9792.5.15(b))
The determination of the AD shall be presumed to be correct and shall be set aside by the WCAB only upon proof by clear and convincing evidence of one or more of the following grounds for appeal: (Regulation 9792.5.15(c))
(1) The Administrative Director acted without or in excess of his or her powers.
(2) The determination of the Administrative Director was procured by fraud.
(3) The independent bill reviewer was subject to a material conflict of interest that is in violation of Labor Code section 139.5.
(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.
If the final determination of the Administrative Director is reversed on the basis of the criteria set forth in subdivision (c), the dispute shall be remanded to the Administrative Director. The Administrative Director shall: (Regulation 9792.5.15(e))
(1) Submit the dispute to independent medical review by a different IBRO, if available;
(2) If a different IBRO is not available after remand, the Administrative Director shall submit the dispute to the original IBRO for review by a different reviewer in the organization.
All in all, the author finds the IBR process to be limited in its capacity, time consuming and costly. The IBR process is tantamount to a calculator where the participants cannot agree on which numbers to use. The IBR is not a dispute resolution process to the extent that it cannot address any issue other than numbers. It cannot consider contested treatment or coding disputes. It cannot make a determination of need for treatment. The purpose of the IBR is to process codable services. Rest assured that if you enter the number 4 on your calculator, the same value, namely “4”, would show in the IBR calculations. If you ask an esoteric question, such as “why do we have the IBR process”, the IBRO will probably not be able to give you an answer. I wouldn’t even begin to suggest that a user try to ask IBR for directions to the San Luis Obispo WCAB.