“And, if the doctors are aware of what is not subject to UR in the first 30 days, this too will help the injured workers get the initial treatment without roadblocks and politics.” Alan Gurvey
Published on 11/30/17 by WorkCompCentral by Greg Jones
Some initial treatment requests for California workers injured after the start of the new year will be exempt from prospective utilization review when statutory changes made by Senate Bill 1160 take effect.
Whether the Division of Workers’ Compensation plans to introduce rules to enact the changes — and if regulations are even necessary — is not so clear.
Some system users are split on whether rules are needed. On one hand, some think the division needs to draft regulations to enforce certain provisions of SB 1160 that allow employers to revoke the right of a physician to bypass prospective UR. Others say the division may be taking a wait-and-see approach to determine if rules are necessary, and that case law can provide necessary guidance in the absence of regulation.
SB 1160, by Sen. Tony Mendoza, D-Artesia, prohibits prospective UR in the first 30 days following an injury for most treatments provided by a doctor who is part of an employer’s or carrier’s medical provider network. The UR exemption does not apply to services including imaging and radiology, durable medical equipment costing more than $250, surgery, psychological treatment and home health care.
The UR changes were overshadowed by other provisions in SB 1160 that have gone into effect. The Division of Workers’ Compensation has already suspended 115 providers under a fraud-fighting component of the bill that requires the division to revoke the rights to treat injured workers for those convicted of crimes, including health care fraud. The division in August announced that it dismissed more than 292,000 liens for which a declaration was not filed by July 1, as required by the measure.
The new UR rules take effect for injuries occurring on or after Jan. 1. In the meantime, thoughts are mixed regarding the need for additional guidance in the form of regulation, as well expectations for the new approach to balancing the need for prompt care with the requirement that treatment be provided in accordance with the Medical Treatment Utilization Schedule.
While SB 1160 will allow certain treatment requests to bypass prospective UR, employers can still perform retrospective UR to determine if treatment complies with the MTUS guidelines. If the retrospective review identifies a “pattern and practice” of treatment that doesn’t align with the guidelines, the employer can terminate the prospective UR exemption for the provider.
Doctors can also lose the right to bypass prospective UR if they fail to properly report treatment provided to injured workers.
The bill also declares that results of retrospective reviews may constitute a showing of good cause for an employer to file a petition requesting a change of physician and to remove a provider from its MPN.
Diane Worley, director of policy implementation for the California Applicants’ Attorneys Association, said in an email that because the changes to the UR process appear “complex and intertwined, I don’t see how any of this can be implemented without rule changes, as there has to be some enforcement mechanism and remedy for violations.”
Worley said she is hoping the DWC plans to enact emergency regulations to carry out the changes before the end of the year. Without the guidance of new rules, she said, it may just be “business as usual” with no real changes to how requests for treatment are handled for 2018 injuries.
Steve Cattolica, director of government relations for the California Society of Industrial Medicine and Surgery, said there may be some nuances that require the division to promulgate rules, but the DWC “may want to see how the marketplace handles the exemption before deciding to intervene.”
He said that carrying out the UR changes, including revocation of the exemption and expelling providers, might fall more to MPN administrators and would probably not require “newly minted regulations.”
Networks already have the authority to establish protocols to expedite initial treatment by exempting certain requests from utilization review, provided that the treatments comport to recommendations in the treatment guidelines.
“An initial treating MPN physician who strays too far away from the MTUS on a regular basis is already an endangered species,” Cattolica said. “SB 1160 won’t change that.”
Between MPNs already having the means to create UR exemptions, and new rules for prescribing drugs under the formulary that also goes into place at the start of the year, Cattolica said there may be fewer improvements in the delivery of care than was initially envisioned when lawmakers passed SB 1160 in 2016.
And because few workers predesignate their primary health care provider as a treating physician for occupational injuries, he said the system “may see only very localized improvement in that treatment relationship.”
Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey & Win in Sherman Oaks, said he is not sure that the division needs to promulgate rules at this point. If there is a dispute over provisions relating to the UR exemption, it may end up in court at expedited hearings, and “precedential law may shape the color of the legislation,” he said.
Gurvey said he has a concern that some people, especially self-represented injured workers, will not be aware of the exemption. If treatment requested in the first 30 days following an injury is sent to UR and denied, unrepresented workers might simply go without care.
He said he hopes that defendants and treating doctors are aware of the new UR rules, and that claims people “do the right thing” when the law change takes effect.
“If the defendant does the right thing and approves the treatment without UR subject to the exceptions, then maybe there will not be a need for specific DWC rules and continuous litigation,” Gurvey said. “And, if the doctors are aware of what is not subject to UR in the first 30 days, this too will help the injured workers get the initial treatment without roadblocks and politics.”
Gurvey said he’s not sure about the extent to which the new statute will improve access to treatment in the early stages of an injury. Diagnostic testing, including X-rays, is often a requested service at initial evaluations. And with UR exemption not applying to those services, as well as DME costing more than $250 and some medications, “we will still see UR in the first 30 days in some cases,” he said.
DWC spokeswoman Erika Monterroza said the DWC is “taking a close look” at whether rules are needed. She said the statutory changes are fairly complex, and if the division determines there are areas where regulations are needed, proposed rules would first be posted to the online forums for comment before the start of the formal rule-making process.