"...the announcement is a "step in the right direction.""Perhaps there is an underlying understanding that the administration and the WCAB cannot turn a blind eye to the flaws of the UR/IMR review process" Alan Gurvey
Published on 11/26/2014 by WorkCompCentral, authored by Greg Jones
The California Division of Workers' Compensation announced that next Monday it will begin the process of assessing penalties against claims administrators that fail to submit relevant medical records for independent medical review.
The DWC said in a notice issued Tuesday that it will pursue administrative penalties in cases where there is a failure to timely submit medical records dated on or after Dec. 1. On pending reviews, the penalty procedure will begin if relevant medical records are not received on or before Dec. 15, the division said in Newsline 2014-110.
Senate Bill 863 created the independent medical review process in an effort to speed up resolution of utilization-review disputes and keep the disagreements from going to court. An injured worker is required to submit the application for IMR, and the claims administrator is required to provide the following documents:
§ All reports from the treating physician prepared within one year prior to the date of the request for authorization.
§ All reports and records of the worker's medical treatment that are identified in the request for authorization or the UR decision.
§ A copy of materials submitted by the worker or the requesting provider in support of the RFA.
§ A copy of any other relevant documents or information, including statements by the claims administrator explaining the reasons to delay, deny or modify the treatment request.
The claims administrator is required to submit the records within 15 days of receiving a Notice of Assignment and Request for Information from Maximus Federal Services, the Reston, Virginia-based contractor designated by the DWC to perform IMR.
Labor Code Section 4610.5(i) authorizes the DWC to assess penalties against a claims administrator whose conduct has the effect of delaying the IMR process. And California Code of Regulations, Title 8, Section 9792.12(c)(6) establishes a $500 penalty for each day that IMR records are untimely, up to a maximum of $5,000.
The division said, starting Monday, it will send an Order to Show Cause to claims administrators who may be liable for a penalty for not submitting medical records to Maximus. The notice will identify the facts upon which the penalty is based, the proposed penalty amount and the administrative process for contesting the penalty.
Alan Gurvey, managing partner of applicants' law firm Rowen, Gurvey & Win, said in an email Tuesday that the announcement is a "step in the right direction."
The DWC has rescinded IMR decisions based on a lack of records. Still, the Sherman Oaks attorney said he's seen IMR decisions that uphold a UR denial of a recommended treatment simply because medical records were never provided.
"It is truly incredible what we are seeing with the limited medical materials being sent to UR and to IMR, and treatment decisions coming out based thereon," Gurvey said. "It is not clear whether it is intentional, laziness or simply not doable, but adjusters often are essentially sending the RFA and maybe one or two brief recent reports."
On two occasions in 2013, the DWC rescinded IMR decisions that it said should not have been eligible for review because no medical records were provided. Chief Judge Richard L. Newman on Nov. 18, 2013 sent an email to presiding judges saying "amended determinations were issued in cases where Maximus made a determination on the merits in the absence of medical records provided by the parties."
DWC spokeswoman Erika Monterroza explained that IMR decisions 13-602 and 13-740 should have been declared ineligible for IMR from the outset, but were not. In the two cases, there had been no UR determination on the merits of the treatment request because medical records were not available to the UR reviewer, she said.
Several other IMR decisions posted online also reference the fact that no records were provided.
IMR decisions 13-103, 13-114 and 13-119 all include notices that the claims administrator had not submitted medical records for review in the case. All three decisions, which had been issued before the DWC rescinded the other two decisions, affirmed the UR denial anyway.
The physician reviewer for IMR decision 13-103 writes that the 16 requested physical therapy sessions for an injured worker suffering from back and left shoulder pain exceed the number of sessions recommended in the 2nd edition of the American College of Occupational and Environmental Medicine Guidelines for the worker's condition as described by the UR physician.
"Since the original medical records authored by the requesting health care provider were not submitted for review, the medical necessity of physical therapy is not demonstrated," the reviewer determined.
At least one determination made after the DWC rescinded two IMR decisions for lack of records affirmed a UR denial of a requested treatment despite the claims adjuster not submitting medical records or submitting records of such poor quality that they were illegible.
IMR decision 13-10724, issued Dec. 17, 2013, a Maximus reviewer denied a request for an intramuscular pain injection of Phenergan and Demerol for a 60-year-old woman diagnosed with failed low back syndrome, lumbar degenerative joint disease and lumbar radiculitis.
Symptomatic flare of short duration would not be a clinical indication for the use of intramuscular narcotics under the Chronic Pain Guidelines in the Medical Treatment Utilization Schedule, the reviewer said.
"The employee already appears to be benefiting from the use of an intrathecal pain pump as well as continued therapy and short-acting oral analgesics for pain control and as such the intramuscular injection in this case would not be necessary," the reviewer determined.
The decision notes that no medical records were submitted by the claims administrator, but that some records were provided by the injured worker.
In another decision dated Jan. 17, 2014, a physician reviewer denied an H-Wave System for an injured worker despite acknowledging that there were only two physician reports submitted with the medical records "and both were unreadable." The list of documents reviewed in the case was redacted by the DWC.
However, the reviewer notes that the decision to affirm the UR denial is based on the lack of available records.
"Due to the poor quality of the notes submitted for review, it is impossible to determine if this treatment is medically indicated; there are no diagnoses, no discussion of previous therapies and no objective findings available for review," the decision said. "Therefore, the request for H-Wave stimulation is non-certified."
Gurvey said it's rare to see an IMR decision in which the reviewer appears to have a full understanding of the entire case and the medical situation that may have been ongoing for several years.
"It is almost like the task of the reviewer is to denigrate the request based on MTUS or (the Official Disability Guidelines) or whatever, without trying to understand the medical situation," he wrote. "It has been said that it's easier to be a movie critic than a movie writer. The adjusters seem to be going with that theory, not giving the reviewers all the information to do the medically right thing."
Gurvey opined that the timing of the announcement could signal concern about recent Workers' Compensation Appeals Board decisions doing injustice to injured workers and guilt over the recent Bodam decision taking away due process of the substantive issues concerning medical treatment.
"Perhaps there is an underlying understanding that the administration and the WCAB cannot turn a blind eye to the flaws of the UR/IMR review process," he said.
In the significant panel decision Bodam v. San Bernardino County, issued Nov. 20, the WCAB determined that a UR decision made within statutory timeframes but sent to an injured worker one day too late is invalid and ineligible for IMR. WCAB Chairwoman Ronnie Caplane wrote that while the invalid UR decision vested the board with authority to determine medical necessity, it lacked substantial medical evidence upon which it could make a decision.
The WCAB in October released an en banc decision in Dubon v. World Restoration declaring that a UR decision is invalid and ineligible for IMR only if it is untimely. Procedural defects would not prevent a case from going to IMR, the board said.
The October decision is called Dubon II as it is the second en banc decision the WCAB issued in the case. In February, the WCAB said in Dubon I that UR decisions suffering from "material procedural defects" weren't eligible for IMR.
Gurvey said it's impossible to determine whether the enforcement of penalties will have any immediate effect on behavior. There may be evidentiary issues that need to be ferreted out that could delay the imposition of fines. The Workers' Compensation Appeals Board might also need to decide what ultimately constitutes "relevant" documents that must be submitted to Maximus, he said.
"Thus, this effort to penalize the adjusters (insurance companies, TPAs) is appropriate, and if it results in motivating the adjusters to 'do the right thing' and send the 'relevant' materials, then it is indeed a good thing… a step toward proper substantive utilization and independent medical review," Gurvey said. "However, I just wonder whether the mentality and motivation is there to do the necessary work in the face of the penalties. Sometimes, I think not."
Diane Worley, director of policy implementation for the California Applicants' Attorneys Association, said she believes the failure of claims administrators to timely provide medical records is a major continuing problem with the IMR process. A representative from Maximus stated during a recent webinar that the primary reason for the current delays in issuing determinations is delay in receiving records, she said.
A copy of slides from the Oct. 22 webinar on submitting medical records electronically posted to the DWC website states that about 19,000 of the 42,000 open IMR cases "are missing medical records past the deadline for submission." A Notice of Assignment and Request for Information on about 80% of those 19,000 open cases without medical records was not sent until on or after June 1, 2014.
Lou Shields, IMR project director for Maximus, said the numbers suggest that as the contractor worked to clear its backlog of undecided cases, it inundated claims adjusters with requests for medical records.
"We are starting to see those records come in, but, you know, our plea or our cry for help at this point is we have injured workers that are still waiting for a decision while we're awaiting those medical records," Shields said. "So, please, get those in as quickly as possible."
Worley said she hopes that assessing penalties will create an incentive for administrators to comply with the regulations and do as Shields asked and promptly submit medical records.
"Unfortunately, this problem begins with utilization review, where there are many denials of requests for medical treatment issues because no records were provided," she said. "A solution to the problems with UR needs to be addressed, too. You can't have evidence-based medicine without evidence."