A process is only as good as the people that are entrusted to make that process work.
How, then, can Independent Medical Review be any good if it is going to function without adequate review or enforcement?
I'm speaking of WorkCompCentral's discovery that since the beginning of IMR, not even 8 months old yet, there have been at least 5 denials of care even though the IMR reviewer did not receive medical records from the claims administrator, as mandated by law.
The law, in this case emergency regulation section 9792.10.5, is clear - the claims administrator shall submit all medical records upon request by the IMR reviewer within 15 days of request (12 days if requested electronically).
What's more troubling than the denial of care without any documentation is the failure to fine offending entities as dictated by emergency regulation section 9792.12(a)(23), which provides for a mandatory fine ("shall"):
"For the failure to timely provide all information required by section 9792.10.5(a) and (c): $250.00 for each day the response is untimely under section 9792.10.3(c), up to a maximum of $5,000.00."
The contractor for the IMR process, Maximus Federal Services, should not even be making any IMR decision where there is no documentation and/or there is a failure to supply requested documents - this is Maximus' own internal policy, according to what Tom Naughton, vice president for Maximus, told the audience at the recent California Coalition on Workers’ Compensation conference in Anaheim.
Naughton said that if Maximus receives only a Utilization Review denial letter with the IMR application and nothing from the administrator, the company will identify the records it needs and the timeline for submitting them, which it apparently did in these instances.
But if no records are forthcoming within the timeframes set forth in the regulations, then there is no IMR decision to be adopted by the Administrative Director according to Labor Code 4610.6 - the section of SB 863 that introduces IMR.
4610.6(a) says that an IMR shall be conducted in accordance with "this article and any regulations" adopted by the Administrative Director. Clearly, if no records are forthcoming from the claims administrator under regulation 9792.10.5, which is a mandatory regulation, there is no IMR.
It's pretty simple.
Yet, the Administrative Director, in the five cases identified by WorkCompCentral reporter Greg Jones, went ahead and adopted as final the decisions of inadequate, and in my opinion illegal, IMRs - and in each case the decisions were against the injured worker.
I don't care if the requested treatment is outside the scope of the Medical Treatment Utilization Schedule, or are requests that make no medical sense - we have a law in place with specific parameters.
What's good for the goose, so to speak, is good for the gander.
Sure, the injured worker can appeal the adopted decisions of the AD - in these five cases it is clear to me that the AD acted without or in excess of her authority because there should not have been any IMR decisions - they were defective on their faces.
But why are we further burdening the system with such appeals, why is the injured worker waiting for requested treatment, and why is the claim being delayed on the account of IMR that's defective on it's face?
IMR can work. It can be a good way of managing questionable treatment requests.
It can also destroy a system. If the people of California can not rely upon the government to follow its own rules, how can the people put its trust in the government?
DWC spokesman Peter Melton advised Jones that the Labor Code section does not delegate to the DWC the power to determine what is a valid IMR appeal.
The Labor Code DOES, however, delegate to the DWC the authority to determine what is a valid IMR decision in the first place. The DWC built rules for that - and the DWC needs to follow its own rules.
Here's what DWC needs to do:
1) Revoke or rescind its orders in those five cases to take them out of the appeals process - the entire structure of the IMR process is built on the theory of keeping medical treatment issues out of the courts, so do it.
2) Fine the offenders. Seems to me DWC is now owed $25,000. Issue the fines, collect the money, publicize the results, make system participants know that this is serious business.
3) Refine the regulations to make it abundantly clear to Maximus, and any other company that might be engaged in the future of IMR, that any failure by the claims administrator to provide records as requested takes the matter out of IMR AND invalidates the underlying UR.
We have a system in place. It needs to be followed by everyone, including the government. If government won't do its job, then the people won't do theirs, and then anarchy will rule.
And the "savings" that are estimated to arise from this tumult won't be realized.
Figure it out boys and girls - you put a new system into place. You better make it work.