The DWC has published proposed Independent Medical Review regulations
(a link to them is noted at the bottom of this post).
The proposed regs are on a DWC forum page, with the forum for comments slated to close December 7. Because there is not time for regular rulemaking for these rules required by SB 863, the DWC will have to submit them to the Office of Administrative Law as emergency regulations:
Some of the concerns about the IMR rules are really simply reflective of concerns about SB 863 itself. Questions about the constitutionality of the IMR process were raised even by counsel for proponents. In any event, the regulations as drafted do not stray very far from the backbone of SB 863.
Here are some quick takes on selected components of the proposed regs:
REQUEST FOR AUTHORIZATION FORM
This is long overdue. It is often difficult to sort out what is being requested from what are merely future possible treatments mentioned by the treater. Having a form that requires a request and a written authorization will cut down on misunderstandings.
The DWC will screen IMP requests to make sure the request is eligible for IMR determination. For example, if there is a dispute about industrial causation of a particular body part problem, treatment issues pertaining to that body part would not be sent to IMR. This step is probably necessary, but the DWC has tended to get bogged down by screening. During the Schwarzenegger administration, backlogs got out of hand at the DWC Medical Unit that handles QME panel requests. It remains to be seen whether the DWC will staff the IMR screening task sufficiently to avoid big backlogs.
THE EXPENSE OF IMR
IMR, which is paid by the employer, will actually be rather costly, with a price between $560 and $850 depending on the type of review and whether more than one reviewer is involved. This, and the time and expense of getting the records together to send to IMR, will probably cut down on the “just say no” type of denials where the disputed item isn’t all that expensive.
Injured workers and treating doctors who want to appeal the smaller stuff will probably get their way quite often. Whether this will save money in the long run isn’t clear, but it will probably cut down on the delays and frustrations for some workers. On the other hand, the expensive stuff will probably get more detailed scrutiny.
PROBLEMS WITH DRAFTING
Some of the provisions in the proposed regs seem inconsistent. For example, if a worker has a lawyer, the utilization review rules (for example, 9792.9.1) provide that certain notices are to be given in writing to the injured worker’s attorney. And 9792.10.5(b)(2) provides that the attorney
may provide certain documents to the independent medical review organization.
Yet, on its face 9792.10.5(a)(1)(F)(2) does not require the claims examiner to send the applicant attorney either a copy of or a list of the documents it is sending to the independent medical review organization.
Does this mean that the claims examiner need only send those documents to the employee? Why would the attorney not be entitled to at least a list of the documents sent?
This inconsistency is merely one example of items that are apparent drafting errors.
Tracking the SB 863 statute, the IMR regs provide very limited basis for appealing IMR denials. Whether this meets constitutional muster is unclear.
There appears to be no mechanism to deal with delays by the IMR organization if it does not issue timely decisions (30 days in most cases under 9792.10.6). If a decision is not rendered in a timely manner, is the item approved as a matter of law? Denied as a matter of law? Can the WCAB order the IMR organization to act if it does not act in a timely manner?
Stakeholders should look at these proposed regs and file comments before December 7: