A Practical Overview of HB5228’s Changes to Utilization Review and IMEs, with Best Practices for Compliance and Risk Management

HB5228 amends the utilization review and IME sections of the Workers’ Compensation Act impacting strategies to address the medical necessity and appropriateness of treatment.   Presently the bill awaits the governor’s signature into law.  Best practices must ensure there is strict compliance with the proposed amendments whether the issue of medical necessity is addressed through utilization review or an IME.  The failure to do so creates exposure for penalties under Sections 19(l) and 19(k).

HB5228 is limited in scope.  For the most part, Respondents request IME physicians to address causation, MMI and return to work.  If causation is denied by the IME physician, then issues relating to HB5228 should be moot.

HB5228 amends Section 8.7 and Section 12 as follows:

Amended Section 8.7

Utilization review (UR) allows for the evaluation of the appropriateness of medical care—the medical necessity and quality of health care provided to employees—by health care professionals with certain protocols and procedures for communicating and appealing any findings.  If medical care is denied pursuant to a proper UR, then the employee must show that a variance from the standard of care is reasonably required to cure or relieve the effects of the accidental injury. Further, a proper UR creates a rebuttable presumption against liability for penalties pursuant to Section 19(k).

1.  The UR Provider

Amendments require that any determination to deny care recommended or to be provided by a physician must be made by a physician. Further, the UR physician must satisfy the following criteria:

• hold a current and valid unrestricted license to practice medicine in any United States jurisdiction;
• hold a current certification by a recognized American medical specialty board area, and when applicable a subspecialty board in the area appropriate to care under review; and
• be experienced in treating and managing patients for a medical condition for which the care is recommended.

Amendments allow for a determination to deny medical care by a licensed healthcare professional who satisfies the above criteria when recommended by a healthcare professional licensed in the same profession. For example, an accredited UR chiropractor denying care recommended by a chiropractor.

The requirement that determinations to certify or non-certify care be in writing with supporting citation to standards of care or evidence-based guidelines and furnished to the provider and employee remains unchanged.

2.  The Duration and Scope of Certified Care

Certification of prescribed non-surgical care is valid for 3 months from the date of receipt by the employee and prescribing health care provider; or for the length of care determined by the prescribing health care provider.

Certification of prescribed surgical care shall include 3 months of postoperative health care services, or the length of treatment determined by the prescribing healthcare professional.

3.  Appeal of non-certification

All appeals of non-certification of care prescribed by a physician must be conducted by a physician. Further, the reviewing physician must satisfy the following criteria:

• hold a current and valid unrestricted license to practice medicine in any United States jurisdiction;
• hold a current certification by a recognized American medical specialty board area, and when applicable a subspecialty board in the area appropriate to care under review; and
• be experienced in treating and managing patients for a medical condition for which the care is recommended.

Amended Section 12

The employer may retain a medical practitioner to conduct an IME/Section 12 exam to address the medical necessity of prescribed care rather than a UR provider.  If that avenue is chosen, a specific time constraint must be met and there are consequences for failing to do so:

• The IME report must be forwarded within a 90-day period;
• The 90 days commence when employer receives the request to authorize care and the medical records from the prescribing healthcare professional;
• Employer shall exercise due diligence in collecting medical records;
• IME shall be conducted by medical practitioner board certified in the same specialty as the prescribing healthcare professional;
• Failure to comply with these requirements after receiving the medical records from the prescribing provider creates a rebuttable presumption that employer shall be liable for the payment of additional compensation under Sections 16 and 19(l).
• These provisions apply to employer failure to 1) authorize, 2) approve, or 3) pay for treatment.

BEST PRACTICE DETERMINATION

Determine whether to pursue a UR or IME to address medical necessity.  IMEs had been favored over URs, in part, because employee attorneys have argued UR non-certifications should not carry the same weight as the opinion of a prescribing medical provider because there was no “hands on” exam.  Also, the IME, unlike UR, could address the issue of causation, MMI and employability.

The effect of the amendments may be to encourage more URs to address medical necessity.  If this is the case, then Arbitrators and Commissioners need to give full force and effect to the shifting of the burden of proof to the employee as set forth in Section 8.7.  That is, to show by a preponderance of the evidence that a variance from the standard of care that forms the basis for the UR denial needs to be granted.  Properly implemented, a statutorily compliant UR should be given its proper weight and be adopted unless a variance from standard of care is established.

• UR to Address Medical Necessity.

If a UR is selected to address medical necessity, best practices include the following:

• The healthcare professional retained to determine medical necessity must have a current and valid unrestricted license to practice in the jurisdiction of the United States. Preferably a physician;
• The retained healthcare professional should have a current and valid unrestricted license to provide specialty medical care in the area appropriate to the prescribed care under review;
• The retained healthcare professional should be experienced and currently treating patients with the medical condition as the prescribed care under review;

Thus, if an orthopedic surgeon is recommending spinal surgery, then the retained expert should be an orthopedic surgeon specializing in spinal disorders, currently licensed and experienced in administering the prescribed care and treating patients with the condition.

Similarly, if the care under review is prescribed by a pain management specialist, then the UR professional should be a physician specializing in pain management.

If the prescribed care under review is a foot condition ordered by a podiatrist, then the retained UR professional could be a podiatrist or arguably a currently licensed orthopedic surgeon specializing in foot disorders, well experienced with the prescribed care and who manages as well as treats patients for the medical condition being prescribed.

• Diary for Certified Care

If the prescribed nonsurgical care is certified, the treatment period should be diaried for three months from date of certification to assess the medical progress and whether an updated UR is indicated.

If the prescribed certified care is for surgery, diary for three months from issuance of certification or for the period of treatment time identified by the prescribing healthcare provider to assess the medical progress and whether an updated UR is indicated.

• IME to Address Medical Necessity.

If an IME is selected to address medical necessity, and perhaps in concert with that of causal connection, the employer must act promptly upon receipt to authorize care.

• HIPAA Releases should issue posthaste to employees or retained counsel for signature.
• Requests for medical records should be issued pursuant to Section 8(a) or subpoenas for medical records should be issued pursuant to Section 16.
• Subpoenas for relevant films should issue independently of subpoenas for medical records.
• A diary entry should be recorded for:
  • The date of receipt of the demand to authorize prescribed care.
  • The date of receipt of the medical records from the healthcare professional who seeks authorization for prescribed care.
  • The date HIPPA or like releases issued.
  • The date 8(a) records request or subpoenas issued.
  • 90-day period from the receipt of the demand to authorize medical care and the medical records of the prescribing healthcare professional to tender IME report.

The IME report should be tendered to the injured worker, the attorney of record, and prescribing medical provider within the 90-day period.

• If IME report cannot be tendered within 90 days from the receipt of the demand to authorize medical care and the medical records from the prescribing healthcare professional, evidence needs to be offered of the actions taken to rebut the presumption for penalties pursuant to Section 19(l) and attorney’s fees pursuant to Section 16 such as the following:
  • The date HIPAA or like releases were tendered to employee or employee’s attorney.
  • The date request for medical records issued pursuant to Section 8(a).
  • The date subpoenas for medical records issued under Section 16.
  • The date of any demand made of the employee or employee’s counsel for any records necessary to complete the IME.

If you have any questions about HB5228, please reach out to our attorneys here.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.