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It’s overdue, but the California DWC has finally begun cracking down on claims administrators who fail to provide medical records to IMR in a timely manner.

This has been a sore spot for both unrepresented and represented injured workers since the Independent Medical Review procedures went into effect three years ago.

Workers and attorneys frequently complained that carriers were creating delays. Labor Code 4610.5(l) requires that upon notice that the AD has assigned the matter to Maximus, the employer shall provide within 10 days specified relevant medical records.

Aware of the problem, the DWC had issued a November 2014 Newsline warning that it intended to assess penalties where records were not timely sent. Here is what the DWC said at the time:

“The Division of Workers’ Compensation (DWC) will initiate the procedure to assess administrative penalties for claims administrator failure to timely submit relevant medical records in cases currently pending Independent Medical Review (IMR).

Under Labor Code section 4610.5(i), DWC is authorized to assess penalties against claim administrators whose conduct has the effect of delaying the IMR process. Under current regulations, Maximus Federal Services, Inc., the organization designated by DWC to conduct IMR reviews, sends the claims administrator a Notice of Assignment and Request for Information (NOARFI) in an IMR case. The notice advises of the relevant medical records to be submitted, which must be provided to Maximus within 15 days of the date on the NOARFI. The regulatory requirements for submitting records can be found at California Code of Regulations, title 8, section 9792.10.5.

Under California Code of Regulations, title 8, section 9792.12(c)(6), failure to submit the records within those 15 days will subject a claims administrator to an administrative penalty of $500 for each day the records are untimely, up to a maximum of $5,000. DWC will send an Order to Show Cause to claims administrators who may be liable for a penalty, with the facts upon which the penalty is based, the penalty amount, and the administrative process for contesting a penalty.

The procedure to assess administrative penalties will commence in cases where there is a failure to timely submit medical records dated on and after December 1, 2014. For IMR cases currently pending at Maximus as of December 1, 2014, the penalty procedure will commence if the relevant medical records are not received on or before December 15, 2014.”

Despite this, there was little if any indication in 2015 that the DWC was making good on its threat.

However, according to several recent articles in Workcompcentral, the Division has finally begun to assess penalties, though it is not clear that any have yet been collected or to what extent some of the alleged scofflaw insurers are contesting the fines.

Workcompcentral noted that a public records request revealed that “the Division of Workers’ Compensation started the process of sessions penalties last summer, when it alleged 1,650 instances in which medical records were late by 10 or more days.” Workcompentral has done a great service to the comp community by digging into this matter for details on how penalty assessments are being made.

According to the recent Workcompcentral piece, administrative penalties of $8.25 million are now being sought, including the following:

-Broadspire ($3.25 million for 705 violations)

-Gallagher-Bassett ($1.21 million for 242 violations)

-Zurich North America ($1.1 million for 220 violations)

-Sedgwick CMS ($940,000 for 188 violations)

-SCIF ($510,00 for 102 violations)

-Los Angeles County ($370,000 for 74 violations)

-Amtrust North America ($340,000 for 68 violations)

-Corvel ($255,000 for 51 violations)

It’s important to remember that delays in the IMR process can harm injured workers. Delays and uncertainty in what treatment will be authorized may make it hard for the medical provider to formulate a treatment plan that will be effective in getting the person back to work or alleviating the effects of the injury.

Moreover, injured workers and their attorneys believe that the culture in workers’ comp has been to strictly enforce deadlines against workers, but to give insurers a pass when it comes to their obligations under the law.

This is also an issue at the heart of whether timelines are to be enforced against the DWC itself, as evidenced by the split among WCAB panels (the Saunders case vs. the Arredondo case, an issue pending at the 3rd DCA in the Southard case). Does the government get a pass on timelines because the timeline is “directory” rather than “mandatory”?

I read with interest some comments in Workcompcentral about the IMR records penalties by Alan Gurvey, an LA applicant attorney who I know and respect. Gurvey questioned whether the penalties, if enforced, do much for the injured worker and suggested that the penalties should go to the worker rather than the DWC.

In a perfect world that might be the case, but that’s not how the IMR statute is written.

I would agree that failure to submit the relevant medical records to UR is perhaps a bigger problem, since the whole dispute process begins where a UR reviewer is asked to look at records to determine whether a requested treatment is MTUS compliant and medically necessary.

The big kahuna should be UR enforcement. Clearly there needs to be a focus on why UR reviewers often don’t reference the relevant medical records. Are the records not provided at all? Not provided timely? Are pertinent records being left out? Or is the UR reviewer “top-sheeting” it and not looking at the pertinent records?

But that’s not to say that IMR timeline enforcement is unimportant.

Why it took so long for the DWC to begin to move on carriers who delay submission of records to Maximus is a mystery.

But better late than never.

Julius Young

www.boxerlaw.com

 

 

 

Julius Young

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