You may have asked that question lately. In the management of workers’ compensation claims, Utilization Review (UR) provides a process whereby proposed treatment is assessed for medical necessity and reasonableness. In several states, the UR process is mandatory and employers or their claims administrators are required to have a UR program. Some states, like California’s Independent Medical Review (IMR) process, allow for appeal of a UR determination, but a final UR/IMR determination is binding on the parties with regard to an injured worker’s treatment.
UR determinations non-certifying or modifying requested medical items, services and prescription drugs are regularly relied upon to exclude or limit care. In the Workers’ Compensation Medicare Set-Asides (WCMSA) context, the Medicare Secondary Payer Act cannot impose greater obligations on an employer than those that stem from the underlying state law that imposes the liability. Therefore, UR-excluded treatment for which an employer would not be liable under state law should be excluded in WCMSAs.
Consistent with this federal law mandate, the Centers for Medicare and Medicaid Services’ (CMS) WCMSA Reference Guide provides the following: “State-Specific Statutes The CMS will recognize or honor any state-legislated, non-compensable medical services and will separately evaluate any special situations regarding WC cases. CMS will recognize WC state-specific statutes addressing the limits of future treatment regarding the length or nature of future treatment….“ (WCMSA Ref. Guide, 9.4.5 Medical Review Guidelines, v. 2.8).
Pursuant to these provisions, CMS’ Workers’ Compensation Review Contractor (WCRC) – the entity tasked with reviewing and approving WCMSA proposals – has in the past excluded both medical treatment and prescription drugs deemed not medically necessary pursuant to California’s IMR process and other state UR provisions.
However, two recent events have changed the status of URs in WCMSAs. First, in July 2017, the WCMSA Reference Guide amended the above provision to require an “alternative treatment plan” by a claimant’s treating physician for UR-denied care. (WCMSA Ref. Guide, 9.4.5 Medical Review Guidelines, v. 2.6). The Guidelines further state that failure to include an alternative plan will result in the requested treatment being included despite UR denials. Then, earlier this year, Capitol Bridge, LLC became the new WCRC contractor. Since Capitol Bridge took over review of WCMSA proposals, adherence to UR exclusions has been inconsistent at best. Approvals – both including and excluding UR-denied treatment including prescription medications – have issued.
A theory behind the changes is that a UR denial does not mean that a claimant has stopped treating or that the employer is not responsible for other treatment. Thus, more medically appropriate, or perhaps limited, treatment should be sought. Strategies to achieve such results include requesting a specific alternative plan from a treating physician and participation in physician peer review. Nevertheless, the NBKL MSA team continues to take the position in its submissions of WCMSA proposals and as a policy that deference should be given to state-legislated and binding UR/IMR determinations.
A timely and compelling example of the need for a consistent approach is seen in the WCRC’s inclusion of prescription opioid drugs in WCMSAs. Despite UR/IMR denials citing inadequate monitoring and/or an absence of documented improvement in function and pain levels, opioids are included in WCMSAs for full life expectancies and often at levels in excess of daily morphine-equivalent dosages. Certainly, such allocations are contrary to public policy and measures aimed at combatting the opioid epidemic and even the federal government’s own CDC guidelines. To that end, careful analysis of prescription patterns and allocation of previously used non-opioid drugs and non-medication modalities should be considered by submitters and reviewers.
The status of UR determinations in the WCMSA context dictates a case-by-case approach. Evidence-based medicine should be part of claims management long before submission of a future WCMSA care plan is proposed. Sometimes, it may be prudent to authorize certain medications or procedures rather than submit a request for treatment to UR and ultimately, risk inclusion of more costly or prolonged treatment. Non-submission programs for compromise settlements might be an option. So if you find yourself asking UR – what is it good for? – Our team of MSA attorneys can assist with strategies and recommendations. Assuredly, our answer will not be absolutely nothing!