“Apparently, the system was set up to do exactly what it is doing and we now have enough data to show that the numbers are not flukes,” he said. “Whatever is behind IMR, which many believe to be cursory reviews of complex and serious medical conditions without requisite information and without the proper medical specialists, will not change until the system changes.” Alan Gurvey
Originally Published as WorkCompCentral authored by Greg Jones
The number of treatment disputes in California’s workers’ compensation system that are being resolved through the independent medical review process increased in 2017 and is on pace to increase again this year.
While there is disagreement over what the consistently high number of IMR decisions says about how treatment is provided, system users appear to agree that the situation is not going to change anytime soon.
Maximus Federal Services received 175,118 eligible applications for independent medical review in 2017, compared to 172,452 in 2016, according to a report published by the Division of Workers' Compensation on Thursday.
The average 14,593 eligible applications processed each month in 2017 was the highest since the IMR program launched with the implementation of SB 863 at the start of 2013. Maximus received an average of 11,888 applications per month in 2014, the first full year in which IMR was available for all dates of injury. That increased, to 13,785 in 2015, and to 14,371 in 2016, according to the DWC.
The number of final determinations, which can address multiple individual disputed treatments, actually decreased for the first time in 2017, falling to 172,145 from 175,963 in 2016. Maximus issued 143,840 final decision letters in 2014, and 165,496 in 2015.
The DWC reported that 91.7% of IMR decisions issued in 2017 affirmed the utilization review determination that a requested treatment wasn’t medically necessary. The UR uphold rate dipped below 90%, to 88.8%, in 2015, but was 91.6% in 2016 and 91.4% in 2014, according to data from the DWC.
Alex Swedlow, president of the California Workers’ Compensation Institute, said IMR is being used at “surprisingly high levels,” but the process is making very consistent decisions on treatment requests. The “rock steady” rate of UR decisions that are upheld through IMR speaks to the quality of care being delivered in the comp system, he said.
One definition of high quality care is the consistent application of proven methodologies such as medical treatment guidelines, along with a consistent review process that produces consistent decisions. The opposite is random inputs and outputs, which Swedlow said was more characteristic of the period following the 1996 en banc Minniear decision extending the treating physician presumption of correctness in legal proceedings on permanent disability to also apply to disputed medical treatment.
Medical costs started increasing by more than 10% per year following the Minniear decision, leading lawmakers to change the law with Assembly Bill 749 in 2002. The measure directed the DWC to adopt treatment guidelines that are presumptively correct.
Swedlow said CWCI is finalizing its own review of IMR data that includes the first six months of 2018 showing another 4% growth in volume.
“Nothing is slowing this down,” he said.
Swedlow also said CWCI’s data shows a small number of providers are driving most of the IMR activity.
“There are between 11,000 and 12,000 physicians who have filed an IMR review request, and of those, the top 10% — about 1,100 or 1,200 doctors — generate 86% of the volume,” he said. “The top 10 individuals are generating 9% of the volume. All of this activity is coming from a relatively small circle of providers.”
Swedlow said there has been some change among the doctors responsible for most of the IMR activity but no evidence of a learning curve in which doctors are figuring out either what treatments are going to be approved or how they need to document their requests for authorization.
Regulators in Texas saw steady decreases after implementing independent medical review. There were 17,433 IMR decisions when the process was rolled out in 2003.The number fell, to 12,244 in 2008, and to 1,584 in 2017.
“That’s what sociologists would refer to as a learning curve,” Swedlow said. “We’re inferring that physicians learned which procedures would be approved and denied.”
Applicants’ attorney Alan Gurvey, managing partner of Rowen, Gurvey & Win in Sherman Oaks, said he doesn’t see any reason to expect a change in the volume of medical treatment disputes.
“Apparently, the system was set up to do exactly what it is doing and we now have enough data to show that the numbers are not flukes,” he said. “Whatever is behind IMR, which many believe to be cursory reviews of complex and serious medical conditions without requisite information and without the proper medical specialists, will not change until the system changes.”
Gurvey said that without workers’ compensation judges having the ability to review treatment issues in certain circumstances, and without any transparency regarding UR and IMR decisions, the latter of which are made by anonymous doctors, he expects that the number of IMR disputes will stay consistent.
That is a potential problem, he said, because a large number of disputed treatment requests calls into question whether Maximus has sufficient resources to review records in all the cases and provide “medically sound treatment decisions.”
Gurvey noted that the California Supreme Court undertook a comprehensive review of workers’ compensation issues relating to medical treatment as part of the King v. CompPartners Inc. case. The high court said workers’ compensation was the exclusive remedy for disputes arising out of the utilization review process.
Justice Goodwin Liu, in a separate opinion concurring with the majority, said California lawmakers might want to assess whether the workers’ compensation system provides proper incentives for “competent and careful utilization review.”
Liu said the fact that Kirk King suffered seizures after he stopped taking an antipsychotic drug that was deemed medically unnecessary by UR raises questions about whether King received the medical care he needed.
Gurvey said he hopes lawmakers and regulators take note of Liu's remarks.
“This is indeed a sad commentary on our system, and we can only hope that the new administration takes heed of the message sent by the Supreme Court and readdresses proper medical treatment review moving forward,” Gurvey said.
Diane Worley, director of policy implementation for the California Applicants’ Attorneys Association, said the DWC’s report doesn’t reflect or even contemplate the lack of quality of many decisions coming from UR and IMR, or the outcome for workers who are not getting a recommended treatment.
“Sure, there are some treatments which should not be authorized and yes, some doctors are still struggling with learning how to use the MTUS guidelines to support the medical necessity of a treatment or are ignoring them altogether, which results in a treatment denial,” Worley said. “But until the DWC recognizes that not everything is working well for injured workers in this system of medical delays, and that UR and IMR is playing a significant role in that problem, CAAA can’t agree with the statement, ‘independent medical review shows continued progress.’”
The statement about continued progress comes from title of the Newsline the DWC released Thursday announcing the annual report.
Worley said the question of what happens to the injured worker is illustrated with the analysis of IMR decisions involving requests for home health services. Maximus reviewers last year agreed with 2,050 — or 93.4% — of the 2,195 utilization review decisions finding that an injured worker did not need home health care.
“What happened to those 2,050 workers?” Worley asked. “Home health care is a request only seen for the most chronically ill or disabled or postsurgical cases. Shouldn’t the (administrative director) be looking at how to improve the delivery of medical care to this population?”
Jason Schmelzer, a lobbyist for the California Coalition on Workers’ Compensation, said he can’t really say what the IMR numbers mean without more context. Before trying to analyze the data he said he would like a more complete picture, including whether there were more or fewer UR decisions, more or fewer treatment requests, and what types of treatment was requested.