California: UR and the Five Day Rules (Watch Out!)

California: UR and the Five Day Rules (Watch Out!)

By Mark L. Kahn (Associate Chief Judge retired), Arbitrator/Mediator/Attorney-Altman, Lunche & Blitstein

Utilization review under the new Independent Medical Review process begins with the receipt by the claims administrator of a written “Request for Authorization for Medical Treatment” (DWC Form RFA) for a specific course of proposed medical treatment. The request can be received (see Rule 9792.1(a)(1), (2) [9792.1] for definition of when received) by fax, e-mail, mail, or orally (telephone) followed by a written request using the RFA, and the form shall be clearly marked at the top that it is a written confirmation of an oral request. (Rules 9785(g), 9792.6.1(t), 9792.9.1(a), and 9792.9.1(a)(1)(3) [9785, 9792.6.1, 9792.9.1])

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

The time frames are changed if the request is for expedited review. Expedited review for prospective or concurrent request for treatment shall not exceed 72 hours from receipt. (Rule 9792.9.1(c)(3)(A)) 

The claims administrator (non-physician reviewer) has five business days to take one of the following actions:

1. Authorize: The claims administrator may authorize the treatment based on the guidelines as set forth in LC § 4610.5 [4610.5]. The approval shall specify the medical treatment requested and the medical treatment approved. (Rule 9792.9.1(d))

2. Negotiate: The proposed regulations provide that the claims administrator can contact the requesting physician and negotiate an agreement on the treatment that will be approved by the claims administrator. (See Proposed Rule 9792.7(b)(3) at http://www.dir.ca.gov/DWC/DWCPropRegs/IMR/IMR_Regulations/IMR_Regulation.pdf) If this procedure is followed, the physician will withdraw the RFA and file a new RFA consistent with the agreement, which will then be approved by the claims administrator within five business days. 

Note: Most defendants are already using this procedure today. The proposed change makes it clear in the new regulations that this is is a permissible procedure. 

Commentary: Contrary to the belief of many, UR is only mandatory if the claims administrator wishes a physician reviewer to review the request for treatment in order to determine if the treatment should be approved, delayed, modified or denied.

A non-physician reviewer may either authorize treatment or reach agreement with the requesting physician without sending the request to UR for review by a physician.

Does the claims administrator have more than five days to approve or negotiate a proper treatment request? I would suggest that at this time the claims administrator complete the approval or negotiating process within five business days of receipt of the RFA. See the discussion below under timely UR. 

3. Reject the RFA form as not being properly completed: If the RFA is not completed (as defined in Rule 9792.6.1(t)), a non-physician reviewer or the reviewer can either treat the form as complete and comply with the time frames or mark the form as not complete and no later than five business days return the request for authorization to the provider marked as not complete and the process will begin anew upon receipt of a new completed form RFA. (Rule 9792.9.1(c)(2))

4. Need for further information to make the decision: If the appropriate information to render a decision is not provided with the original request, the reviewer may request additional information within five business days from the date of the receipt. If the reasonable information is not received within fourteen calendar days, the reviewer may deny the request, which will be reconsidered upon receipt of the information. (Rule 9792.9.1(c)(3)(B) and (C))

5. Deferral: The request for authorization may be deferred because of a threshold issue. (Rule 9792.9.1(b)) The deferral shall be completed within five days of receipt and done in accordance with Rule 9792.9.1(b)(1). Examples of threshold issues would be injury and employment.

Commentary: If the request for treatment is properly deferred, UR can be conducted retroactively when the threshold issue is finally determined. What if the Claims Administrator does not timely or properly issue the deferral? Has the defendant lost their right to retroactively conduct UR after the threshold issue is finally determined? Is the failure to defer in a timely manner similar to failure to conduct the initial UR review in a timely or proper manner that results in the defendant being liable for the treatment? (See Sandhagen v. WCAB (2008) 44 Cal.4th 230, 73 Cal.Comp.Cases 981 [73 CCC 981]) That is an issue to be determined by the courts in the future. 

Practice Tip: Until this issue is decided, it is recommended that deferral be timely made within five business days and properly accomplished as outlined in the regulations. (See Rule 9792.9.1(b)(1))

6. Referring the matter to UR: The non-physician reviewer may refer the matter to UR which either approves the treatment request, denies, delays or modifies the treatment request. (Rule 9792.9.1(c) and (e) 

If the treatment is approved by UR, defendants have no appeal rights and treatment is provided. (LC § 4610.3(a)-(c) [4610.3])

If the UR decision is to delay, modify or deny a request for treatment and that information is timely communicated in the manner prescribed in the regulations, defendants are not liable for the treatment requested on the RFA unless the applicant timely requests IMR and/or timely requests an expedited hearing to challenge if the UR was timely and properly conducted by defendant and applicant prevails. (See generally LC § 4610.5(e))

Applicant can both timely challenge the UR as not being timely or properly conducted at an expedited hearing, and timely request IMR of any decision to delay, deny or modify the treatment. Applicant can request IMR be deferred pending the outcome of the expedited hearing. If applicant prevails at the expedited hearing, applicant can withdraw the request for IMR. If applicant is not successful at the expedited hearing, the applicant can proceed with IMR. If applicant only requests an expedited hearing and does not prevail at the expedited hearing, the UR decision becomes final because applicant made no timely request for IMR. (LC § 4610.5, Rule 9792.9.1, Rule 9792.10.1 [9792.10.1], Corona v. Los Aptos, 2011 Cal. Wrk. Comp. P.D. LEXIS 156 [2011 Cal. Wrk. Comp. P.D. LEXIS 156], Becerra v. Jack’s Bindery, 2012 Cal. Wrk. Comp. P.D. LEXIS 451 [2012 Cal. Wrk. Comp. P.D. LEXIS 451])

Commentary: According to the UR regulations (see Rule 9792.9.1), perspective or concurrent decisions to approve, modify, delay or deny a request for authorization of treatment made on an RFA from shall be made in a time not to exceed five business days from the date of receipt of the completed RFA, but in no event more than fourteen calendar days from initial receipt of the completed RFA.

Watch out for this one: Does this mean that defendants have fourteen calendar days from receipt of the RFA to complete the UR process or does this mean that defendants have five business days to make the decision whether or not to send the matter to UR and the UR process must be completed within fourteen calendar days of receipt of the RFA? What if defendants make the decision to UR the treatment request on the sixth day following receipt of the RFA and complete the UR process within fourteen calendar days? Is the UR timely? Many experts are arguing that in order for UR to be timely both the initial decision must be timely made (within five business days) and the UR process must be timely completed (fourteen calendar days). Must defendant make the decision to refer the matter to UR within five business days from receipt of the RFA and the UR procedure must be completed within fourteen calendar days of receipt of the RFA? Defendants argue the UR is timely as long as the UR process is completed within fourteen calendars days or receipt of the RFA regardless of what day the decision to refer the treatment request to UR was made. This is a decision for the courts in the future.

Practice Tip: Until this issue is finally determined by the courts, I believe it would be best practice to make sure that within five business days of receipt of the RFA, defendants make the decisions whether or not to refer the treatment request to UR. 

Medical Control Issues: Related to the issue of utilization review is the issue of medical control. When the RFA is received, and if the treatment request is from a non-MPN physician, the defendants can issue a denial for the request for treatment, notifying the doctor he is not within the MPN. The issue of medical control is an issue to be determined by the WCAB at an expedited hearing. (LC 5502(b) and LC 5502(b)(B) [5502]) If the defendants prevail at the medical control hearing before the WCAB, they are not liable for any treatment of the non-MPN physician or any referrals made by the non-MPN physician. (LC § 4603.2(a)(3) [4603.2]) If the applicant prevails at the expedited hearing and was permitted to treat outside the MPN, applicant may continue to treat with that physician and defendants lose medical control for that physician. (LC § 4603.2(a)(2))

Commentary: If the applicant prevails on the medical control issue at the expedited hearing, the defendants can UR any request for treatment made on the RFA received after the expedited hearing.

Can the defendants UR the treatment requests made by the non-MPN physician prior to the expedited hearing on medical control? In my opinion, the defendants can issue a timely deferral of UR of the non-MPN physician’s treatment request within five business days of receipt based on the threshold issue of medical control. Defendants, if they were to lose the medical control issue at the expedited hearing, could then claim the right to retroactive UR of the physician treatment requests based on their timely deferral. This issue will have to be decided by the courts. 

Do not forget about LC § 5402(c) [5402] in which defendants are liable for up to $10,000 in medical treatment until liability is accepted or rejected. Defendants would be wise to apply the UR procedure to this treatment. Defendants can dispute medical necessity of the treatment, but they may be liable for up to $10,000 pursuant to LC § 5402(c).

Following the UR decision to delay, modify or deny treatment requests the burden shifts to the applicant. The applicant can accept the UR determination or fail to timely object in which case the UR decision becomes final. (See LC § 4610.5, Rule 9792.10.1(b))

The applicant can contest that the UR decision was timely or not properly conducted by defendant and request an expedited hearing on this issue. If the applicant prevails at the expedited hearing and proves that the UR was not timely or not conducted properly (in accordance with the regulations), the WCJ can award the applicant medical treatment if the applicant has introduced at the expedited hearing a medical report that is substantial evidence supporting the treatment. (LC § 4610.5, Rule 9792.9.1, Rule 9792.10.1, Corona v. Los Aptos, 2011 Cal. Wrk. Comp. P.D. LEXIS 156, Becerra v. Jack’s Bindery, 2012 Cal. Wrk. Comp. P.D. LEXIS 451) 

If the defendants prevail at the expedited hearing, the UR will become final unless the applicant has timely and alternatively requested IMR. (See LC § 4610.5, Rule 9792.9.1, Rule 9792.10.1(b)) Most of the time, if the applicant is contesting whether the UR is timely and proper by expedited hearing, the applicant should also timely request IMR in case they do not prevail in the expedited hearing, in which case they can then proceed to IMR.

A utilization review decision to modify delay or deny a request for authorization of medical treatment shall remain effective for 12 months from the date of the decision without further action by the claims administrator 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 for the UR decision. (LC § 4610(g)(6) [4610], Rule 9792.9.1(g)) 

Note: Independent Bill Review (IBR) applies to all treatment requests ultimately approved and have separate procedures and time frames, including delay procedures pending the outcome of threshold issues. Independent Bill Review is not discussed in this article but must be taken into account in handling receipt of bills for medical treatment including disputed medical treatment. (LC §§ 4603.2, 4603.6, 4622 and 139.5 [4603.2, 4603.6, 4622, 139.5]) For further discussion of IBR, see Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, Liens [Ch. 17] (LexisNexis). 

© Copyright 2013 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).