Failure to perform UR (California)

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Failure to perform UR (California)

Postby earthwake@aol.com on Wed May 22, 2013 6:24 am

I'm wondering if Jon or anyone else knows how to fight an insurance company that failed to authorize or deny a UR request within 14 days. We get our provider's bills/liens after the fact... we have clearly documented RFA with POS, on an admitted injury, and NO response. Later, the claim is denied for lack of auth and claims examiner doesn't want to discuss it.

We understand that one consequence is that the defendant cannot later use a UR denial at Trial. Is that IT? Must the provider wait until the CIC resolves and push this forward in litigation to get the bill paid?

Would there have been a better strategy for the provider at the time, than to simply go ahead and treat, and hand off to us for collection?
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AND... how is this different now with IMR? If defendant fails to perform its UR requirements... what is next step? Does the IMR process become involved at all?
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Re: Failure to perform UR (California)

Postby ymcgavin@socal.rr.com on Wed May 22, 2013 1:07 pm

Hi Earthwake,

You asked some questions and made some generalized statements. Please see my responses in italics below:

I'm wondering if Jon or anyone else knows how to fight an insurance company that failed to authorize or deny a UR request within 14 days.
Try sending a complaint to the DWC Audit Unit, and maybe -- just maybe, that toothless tiger will have grown baby teeth and take some action --- particularly after that debacle with Sedgwick reported by WCC recently.

We get our provider's bills/liens after the fact... we have clearly documented RFA with POS, on an admitted injury, and NO response. Later, the claim is denied for lack of auth and claims examiner doesn't want to discuss it.
I have always urged providers to seek authorization with an RFA submitted via certified return-receipt mail with a POS, as the POS does not prove that the IC/TPA actually received the RFA. By doing so, it will assist the Audit Unit, again, if it has grown any teeth.

We understand that one consequence is that the defendant cannot later use a UR denial at Trial. Is that IT?
Yes.

Must the provider wait until the CIC resolves and push this forward in litigation to get the bill paid?
Yes.

Would there have been a better strategy for the provider at the time, than to simply go ahead and treat, and hand off to us for collection?
Yes, the provider can simply refuse to treat absent written certification from UR, and written authorization from the CA. This may also behoove the IW financially per LC 5814, as well as result in a financial spanking for the IC/TPA.
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AND... how is this different now with IMR? If defendant fails to perform its UR requirements... what is next step? Does the IMR process become involved at all?
This will be an interesting issue to see resolved, judicially, as time progresses and these type of scenarios become more common. Initially, my take is that absent a UR denial, the IW cannot trigger the IMR process.

LC 4062(b), as amended, now reads as follows:
If the employee objects to a decision made pursuant to Section 4610 to modify, delay, or deny a request for authorization of a medical treatment recommendation made by a treating physician, the objection shall be resolved only in accordance with the independent medical review process established in Section 4610.5.

Hence, if the RFA is never submitted to UR, and there are no other issues that would allow retrospective UR (e.g. AOE/COE) after the issue has been resolved by the WCAB, I see some wiggle room for the IW in seeking medical dispute resolution by a PQME or AME.

LC 4610.5(d) and (e) are crystal-clear:
(d) "If a utilization review decision denies, modifies, or delays a treatment recommendation, the employee may request an independent medical review as provided by this section."
(e) "A utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section. Neither the employee nor the employer shall have any liability for medical treatment furnished without the authorization of the employer if the treatment is delayed, modified, or denied by a utilization review decision unless the utilization review decision is overturned by independent medical review in accordance with this section."

Hmmm. No authorization from the CA, no denial, delay, or modification from UR = No ability to trigger the IMR process.

Also, LC 4610.5(i) indicates the following:
(i) "An employer shall not engage in any conduct that has the effect of delaying the independent review process. Engaging in that conduct or failure of the plan to promptly comply with this section is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day that proper notification to the employee is delayed. The administrative penalties shall be paid to the Workers' Compensation Administration Revolving Fund."

It seems to me that failure by the CA to authorize the RFA, or for UR to deny, delay, or modify the RFA, would be "conduct that has the effect of delaying the independent review process[,]" --- thus subjecting the offending IC/TPA to a possible $5K per day administrative penalty.

The last sentence in LC 4610.1 is also germane, particularly if your provider refuses to treat absent written certification from UR and written authorization from the CA: "In no case shall this section preclude an employee from entitlement to an increase in compensation under Section 5814 when an employer has unreasonably delayed or denied medical treatment due to an unreasonable delay in completion of the utilization review process set forth in Section 4610."


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Re: Failure to perform UR (California)

Postby jonbrissman on Thu May 23, 2013 5:22 pm

Earthwake,

I have two panel decisions that say the default value for failure to timely authorize after a proper request for authorization is that the services are authorized. The decisions are attached.

You'll still likely have to litigate the issue, and you may ask the judge to take judicial notice of the panel decisions. They are not precedential but the judge may find them persuasive and he or she will have to have a good reason not to follow them.

Heed York's insight; I certainly do. He has helped me on several occasions.

JCB
Attachments
Silva, Raul - no UR response.pdf
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Ford - tardy UR is de facto authorization.pdf
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Re: Failure to perform UR (California)

Postby earthwake@aol.com on Fri May 24, 2013 5:43 am

THANK YOU! You guys are fabulous. We have been scratching our heads, especially at the lien negotiations juncture, when claims examiners simply shrug their shoulders. Guess we will have to push these all the way... and I really appreciate your help on behalf of the providers who are so stuck.
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Re: Failure to perform UR (California)

Postby Kashmir on Tue Aug 20, 2013 5:36 pm

It's now three months later and RFAs are required for all treatment requests. We're sending out a ton of RFAs and not getting responses back at all, forget within five business days, on a lot of them.

Is there any new information on how to deal with this situation? Has anybody tried using the two panel decisions Jon mentioned? Can you trigger IMR without UR?

This article suggests "applicant can contest that the UR decision was timely or not properly conducted by defendant and request an expedited hearing on this issue." But doing expedited hearings for every untimely (or absent) UR decision seems unwieldy. And in the meantime the patient's treatment comes to a standstill. Are there any real consequences for the CA who does not follow the RFA timeframes?
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Re: Failure to perform UR (California) (California)

Postby vampireinthenight on Wed Aug 21, 2013 8:31 am

But doing expedited hearings for every untimely (or absent) UR decision seems unwieldy.


Yes, but it works. Coupled with penalties and the cost of the procedure, which will be more or less automatically awarded, and sending someone to the WCAB, it ends up multiple times more expensive. It usually only takes on or two of these on a file to get the attitudes to change.

But, you're back to the same old theme: the patient has to care enough about the treatment to do something about it. Otherwise you're in the back seat as a lien claimant.

PS - interesting article, thanks for sharing!
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Re: Failure to perform UR (California) (California) (California)

Postby ymcgavin@socal.rr.com on Wed Aug 21, 2013 2:15 pm

vampireinthenight wrote:
But doing expedited hearings for every untimely (or absent) UR decision seems unwieldy.


Yes, but it works. Coupled with penalties and the cost of the procedure, which will be more or less automatically awarded, and sending someone to the WCAB, it ends up multiple times more expensive. It usually only takes on or two of these on a file to get the attitudes to change.

But, you're back to the same old theme: the patient has to care enough about the treatment to do something about it. Otherwise you're in the back seat as a lien claimant.

PS - interesting article, thanks for sharing!


If the IW is unrepresented, and no application has been filed, the lien claimant can climb into the front seat simply by filing an application for adjudication. http://www.dir.ca.gov/t8/10400.html

And yes, seeking an expedited hearing for treatment when the CA remains silent a few times, after being served with multiple RFAs on different dates, will get the attention of the CA.

I agree with Vampire about the article by Mark Kahn. (I miss his hearing his sage observations when he was sitting at VNO as the Associate Chief Judge.) Thanks.

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Re: Failure to perform UR (California)

Postby Kashmir on Fri Aug 23, 2013 10:38 am

Thanks for the responses. York, are you saying the unrepped IW needs to file an app and then request an expedited hearing?
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Re: Failure to perform UR (California) (California) (California)

Postby ymcgavin@socal.rr.com on Sat Aug 24, 2013 11:37 am

Kashmir wrote:Thanks for the responses. York, are you saying the unrepped IW needs to file an app and then request an expedited hearing?


Hi Kashmir,

(For the remainder of this post, I am going to assume this is an admitted injury and there are no disputed body parts.)

YES. I'm going to modify my suggestion above that the lien claimant file the application, and instead suggest that the unrepresented IW file the application for adjudication, as well as the DOR for an expedited hearing.

You can, and should, assist the IW in properly filling out both forms. The IW can then take them to an I&A Officer for assistance in filing them and serving them.

You should assist the IW by following the instructions for filling in the fields in an application for adjudication found in I&A Guide Form 4: http://www.dir.ca.gov/dwc/iwguides/IWGuide04.pdf

Next, you should assist the IW in filling in the fields in the DOR for an expedited hearing, which can be found in I&A Guide 6: http://www.dir.ca.gov/dwc/iwguides/IWGuide06.pdf

Filling out the DOR for an expedited hearing is rather straightforward. If the IW is savvy, he/she will have made at least 2 or 3 phone calls to the adjuster, simply requesting a call back without leaving any other specific message as to the reason for the requested call back. (As I am sure you are aware, the vast majority of calls to an adjuster go to voicemail.) Generally, the adjuster will not call back, but if the adjuster does call back, the IW should not take the call and instead let the adjuster's call go to voicemail. (Yes, there is a bit of gamemanship here, but then the adjuster should have taken some action when the RFA was received, and the failure/refusal to take some action results in delaying the IMR process. One has to wonder if that failure/refusal to respond to the RFA is also gamemanship. UR has been in existence for over 9 years, and by now, if the adjuster does not understand the rules in regards to responding to an RFA, that adjuster deserves to be spanked!!!)

When filling out the DOR for an expedited hearing, obviously check off the box for "Entitlement to medical treatment per Labor Code section 4600." At the bottom of page one, there is a box that states, "Declarant states under penalty of perjury that he or she has made the following specific, genuine, good faith efforts to resolve the dispute(s) listed above:"

The IW should fill in the box with language similar to the following: "My PTP submitted an RFA to my insurer requesting authorization for treatment on [insert date(s)]. The insurer did not respond at all, and no UR denial/modification was issued. I called the adjuster, [insert name if known], on [insert date], [insert date], and [insert date], but my calls went to voicemail, and I left a message requesting a call back each time. I have not spoken with my adjuster. My PTP will not treat me without written authorization. Because the adjuster has not responded to the RFA(s) from my PTP in writing, an expedited hearing is necessary to obtain treatment. (The savvy IW will also attach to the DOR copies of each unanswered RFA submitted by the PTP, along with any reports outlining why the medical treatment is MTUS consistent or why a variance from the MTUS is warranted.)

On the DWC website, in the "Fact sheets and guides for injured workers" section, is a document titled, "Fact Sheet A." http://www.dir.ca.gov/dwc/FactSheets/FactSheet_A.pdf

As clearly stated within Fact Sheet A:
What if more than 14 days have gone by since my doctor requested treatment and we haven’t heard or received anything from the claims administrator?
If your doctor has not been able to get a response from the claims administrator, you should file a declaration of readiness to proceed to expedited hearing. A claims administrator who fails to meet the appropriate deadline for a utilization review cannot object to the doctor providing the requested treatment.

When the IW is assigned an ADJ number and a date for the expedited hearing, the IW will need to fill out a PTCS: http://www.dir.ca.gov/dwc/FORMS/EAMS%20 ... 0253_1.pdf

It would be wise to do that prior to the hearing, and it can be printed out prior to the hearing. You can and should assist the IW in filling out the PTCS.

Page 1 is a no-brainer. On page 2, be sure to check off the appropriate box in section 5. On page 3, check off the box for "NEED FOR FURTHER MEDICAL TREATMENT," and note the types of treatment requested in the RFA(s), but ignored by the CA. At the bottom of page 3, there is a section titled, "OTHER ISSUES:" In that section, succinctly state, "My PTP, [name], submitted an RFA on [insert date], [insert date], and [insert date] to my insurer, [name insurer]. There was no response from my insurer authorizing the treatment or requesting additional information. There was no denial, or modification of the RFA from UR. I ask the court to award the treatment, and to make a referral to the AD for an assessment of a daily $5,000.00 penalty for delaying the IMR process. I reserve my right to seek a LC 5814 penalty or penalties per LC 4610.1.

On page 5 of the PTCS, check off the box for "APPLICANT." Below, list the RFA(s) and POS by mail (preferably certified return receipt), or if by fax, proof the RFA was received by the insurer. At the bottom, the IW should list himself/herself as the only witness.

As a CYA move for the IW, he/she should also have additional copies of the RFA(s) in hand, as the WCJ may just set the hearing for an expedited trial then and there. The IW should have a copy for the court, the DA, and a copy for himself/herself. Except for the IW testifying that he/she did make the phone calls to the adjuster, and that the IW has not spoken with the adjuster, no further testimony is necessary --- and the matter can be submitted on the RFA(s) submitted, along with the POS by mail or fax. (If the adjuster did call back and left a message, the IW should truthfully inform the court that the IW did receive a message from the adjuster, and the IW did call the adjuster back, but because there was no answer from the adjuster, the IW had to leave another message on the adjuster's voicemail. Also, but only if asked, the IW should be truthful in admitting that you assisted the IW in filling out the Application and DOR.)

The outcome should be simple for the WCJ: The treatment requested in the RFA(s) will be awarded, and possibly, the CA will be referred to the AD for a IMR delay penalty.

In regards to the LC 5814 penalty or penalties, well, that should be the subject of a different post.

(I will probably take some heat from the DAs and CAs that peruse these forums, but that's OK, I can and will take that heat willingly, as long as I have assisted an IW in obtaining treatment when an obdurate CA fails/refuses to timely respond to an RFA.)

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Re: Failure to perform UR (California)

Postby Barney5 on Wed Nov 06, 2013 6:16 pm

Mr Mcgavin,

I find your well written posts invaluable. I remember reading posts you wrote on the older version of this forum, which I sent to MANY injured workers to help them obtain medical treatment (QME dance one example). Your guidance has helped MANY unrepresented injured workers.

Thank you.
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