“This is a nuance that a lot of people probably don’t understand, but I have to say it is seemingly not coincidental when I receive on multiple cases at the same time [as] objections to the treatment” Alan Gurvey
Published on 7/5/2017 by WorkComp Central, authored by Greg Jones
California Assemblywoman Eloise Reyes is making a renewed push to relax utilization review and independent medical review rules for victims of domestic terrorism.
The San Bernardino Democrat last week amended AB 44 to propose a presumption that care and services requested by a physician treating a victim of domestic terrorism are in accordance with the state’s treatment guidelines.
Utilization review and independent medical review would have to approve treatment requests if the employer fails to rebut the presumption. And when an employer denies treatment, the bill would allow the Workers’ Compensation Appeals Board to resolve the medical disputes as well as all future disputes that may arise in the case.
With the amendments, the bill is similar but not identical to legislation that Reyes introduced in December in response to complaints from some of her constituents who said they were struggling to get medical care approved for injuries sustained in the Dec. 2, 2015, terrorist shooting at the Inland Regional Center. As introduced, the bill would have exempted treatment requests from UR and IMR.
In April, the Assembly Insurance Committee amended the bill to remove the UR and IMR exemptions and instead require employers to offer survivors of terrorist attacks “immediately accessible advocacy services” to assist injured workers in getting medical treatment, and assist providers in seeking authorization and payment of medical treatment.
The amendments are likely to reignite employer and carrier opposition to the measure, while also raising a question about procedural rules in the Capitol.
Reyes’ latest amendments would say medical treatment and psychological counseling requested by the treating physician shall be presumed to be consistent with the Medical Treatment Utilization Schedule. The presumption would be disputable, and unless the employer successfully rebuts the presumption, UR, IMR and the Workers’ Compensation Appeals Board would be required to issue decisions finding the requested treatment is medically necessary.
The bill would also prohibit employers from citing a lack of documentation to deny a treatment request “if the documentation is in the possession, or available to, the employer, the employer’s insurer or the employer’s claims administrator.”
Employers would be required to make a decision to authorize or deny requested medical treatment within five working days from receiving a request for authorization. The bill does not appear to allow the additional 14 days for UR decisions when the employer requests additional documentation to substantiate a request.
If UR denies a treatment request, the bill would require an independent medical review decision be issued “no more than 45 days from the receipt of the request for authorization.”
It also appears the bill would give the WCAB authority to resolve treatment disputes any time treatment is denied or in any case where the prescribed timelines are missed. What’s more, the bill says that if treatment is denied or a deadline is missed, the WCAB “shall determine whether the requested treatment and all subsequently requested treatment is medically necessary.”
The bill would allow those injured by domestic terrorism to receive 240 weeks of temporary disability benefits.
It would require employers to offer “advocacy services” for workers injured by an act of domestic terrorism “to assist injured employees in obtaining medical treatment and to assist providers of medical services in seeking authorization and payment of medical treatment.”
The advocate would also be required to ensure IMR is initiated in a timely manner and provide the IMR reviewer “a narrative explaining why the treatment should be authorized, including citing relevant medical records.”
The bill would apply retroactively to survivors of the attack in San Bernardino, and any other employees injured by an act of domestic terrorism.
During a hearing in April, Assembly Insurance Committee Chairman Tom Daly offered amendments requiring employers to provide advocacy services to workers injured by terrorist attacks. The amendments were adopted before the bill passed.
Reyes said during the hearing that she wasn’t convinced the amendments would work, but she was willing to accept changes the committee made to her bill to keep the conversation going.
She said “it’s not clear it will help in the future unless we commit to making improvements.” And she also said she hoped to “work with amendments in the future to include some of what has been requested.”
Mark Farouk, chief of staff for Reyes, said in an email Monday that the latest changes resulted from two general concerns. He said the amendments adopted in April “lacked sufficient detail or direction as to how prompt medical treatment would occur, and it is our understanding that delays continued for the Dec. 2 survivors even after a case manager was appointed to their case.”
As the first anniversary of the attack approached, survivors went to the media with complaints that the county was refusing to authorize treatments and prescriptions recommended by their doctors. The county in response said essentially that its hands were tied because the providers were not submitting medical records that utilization review needed to make a determination.
In December, the county contracted with IW Care Connection Inc. in Los Angeles to provide nurse case management services for the survivors.
Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey & Win in Sherman Oaks, said the county’s strategy of putting “money into trying to administer these claims better has worked, at least from the public’s perception of not ignoring the victims.”
But he also said he’s seeing the county employ what appears to be a strategy of objecting to all treatment requests in what he characterized as an effort to get to the panel qualified medical evaluator in the hopes that workers might be declared permanent and stationary, and temporary disability benefits terminated.
“This is a nuance that a lot of people probably don’t understand, but I have to say it is seemingly not coincidental when I receive on multiple cases at the same time [as] objections to the treatment,” he said.
Gurvey said in one case, the county objected to reports submitted by a treating doctor requesting eye movement desensitization and reprocessing treatment for post-traumatic stress disorder after utilization review approved the therapy.
The latest amendments to AB 44 are not sitting well with employers and carriers.
Jason Schmelzer, a lobbyist for the California Coalition on Workers’ Compensation, said the change “makes the bill worse than it was when it was introduced.”
CCWC has not taken an official position on the amended bill and is still officially neutral. But Schmelzer said there seem to be problems with every part of the bill.
He said he didn’t understand the why Reyes is proposing to return to the treating physician presumption. He questioned the requirement that the advocacy services called for in the bill would be charged with, among other things, preparing a statement for IMR explaining why treatment should be approved.
“It almost turns the person into an arm of the treating physician and the applicants’ attorney,” he said.
Jeremy Merz, western region vice president for the American Insurance Association, said the amendments “turn back the clock to the failed workers’ compensation policies of the past.”
“It essentially will spike litigation, decrease speedy access to care in some situations and leave injured workers’ worse off,” he added.
Merz said there is a reason lawmakers created the IMR process in Senate Bill 863. Utilization review and IMR may not be perfect, but they do help ensure injured workers get appropriate care, he said.
“I think this is highlighted and underscored by the fact that we are finding provider fraud in the system and this results again in the injured worker receiving sometimes unnecessary surgeries or unnecessary prescriptions, and this is one of the tools we use to speed up care and reject treatment that does not comport with nationally accepted evidence-based medical guidelines,” he said.
The California Association of Joint Powers Authorities also dropped its opposition to the bill following the April amendments.
Janet Selby, legislative committee chairwoman for CAJPA, said in an email that “we were disappointed to see the good work of the Assembly Insurance chair and his staff undermined by the recent amendments that would reinstate the old litigation approach to determining medical care, which didn’t serve anyone well.”
She said CAJPA supports the current medical treatment authorization and dispute resolution system, and “keeping medical decisions in the hands of physicians, not lawyers and judges.”
The questions for AB 44 now are whether the bill will get a hearing in the Senate and what happens if the bill goes back to the Assembly.
On June 28, the bill was on the agenda for the July 12 meeting of the Senate Committee on Labor and Industrial Relations. As of Monday, the bill was not on the agenda for the committee’s next meeting, and the Legislature’s website says the hearing on AB 44 was postponed at the request of the committee.
While not explicitly prohibited by Assembly or Senate rules, it’s considered bad form in the Capitol for a lawmaker to accept committee amendments only to go back to the original proposal at a later date.
If the labor committee and the full Senate pass the bill, it would go back to the lower chamber where the standing rules of the Assembly would allow the Insurance Committee to call another hearing on the measure.