Tuesday, October 1, 2013

Why Penalties Won't Expedite IMR

The debate about the big volume of Independent Medical Review requests in California's new system that were recently reported is all over the map.

Some say that the provider, Maximus, is at fault and many support the Division of Workers' Compensation's proposal for new time lines and penalties for various actions and/or inactions.

There's also plenty of blame slinging going on with employer representatives accusing the applicant attorneys, applicant attorneys implicating carriers/administrators, and everyone else pointing fingers at each other.

But Steven Cardinale, co-founder and Managing Director of CID Management, a Utilization Review company, put it best to me in an email when he said, "SB 863 was conceived in such a way as to assure the overuse of IMR."

I have to agree with Mr. Cardinale - none of the participants in the California system is really to blame for the huge volume going to IMR because the law essentially guaranteed that this would happen, and this is why:

Labor Code section 4610.5, which is a new section added by SB 863 and is the start of the IMR process, provides that the EMPLOYEE has 30 days "after the service of the utilization review decision" to request an IMR (emphasis mine).

The time by which an employee may request an IMR of a UR decision gets extended if the employer doesn't fulfill some obligatory notice requirements or if liability is disputed.

In addition, Labor Code section 4610.6 provides that the cost of the IMR "shall be borne by employers through a fee system established by the administrative director."

Also (you KNEW there was more to the story), no UR decision on a treatment request can be the subject of further review by UR for a year after the UR decision (Labor Code section 4610(g)(6).

So what the Legislature has done is to create time pressures with no other recourse for injured workers to get some determination of a treatment request, and no disincentives.

In fact, the entire process creates huge incentives to seek IMR.

An applicant attorney on a UR dispute is going to absolutely request IMR all of the time. Not only is there nothing to lose by doing so, but the applicant attorney faces an irate client if he fails to do so, and in fact may face claims and/or liability of malpractice for failing to do so.

My guess is that most applicant attorneys have a process already in place for staff to immediately and automatically request an IMR of any and every UR decision that is adverse (or perhaps not even adverse) to their client if, for nothing else, to protect against a claim of malpractice.

And I would not blame applicant attorneys one bit for doing so - their malpractice insurance carriers would demand such systems!

The fact that July 1, 2013 marked the date that any and all UR decisions, regardless of date of injury, would be subject to IMR firmly cemented the radical increase in case load Maximus and the DWC experienced and/or reported.

This has NOTHING to do with Maximus' ability to handle the case load.

There is NOTHING that DWC did to exacerbate the situation.

Applicant attorneys and their clients are not to blame; carriers and administrators have nothing to do with this situation.

The blame is purely, simply, and irrevocably upon the architects of the IMR process and the drafters of the SB 863 language.

The authors, perhaps unwittingly, created intense motivations for nearly every medical treatment request to be appealed to IMR.

The ONLY way to avoid an IMR is to avoid UR in the first place.

The law provides only that carriers and administrators have some UR system in place - it does not mandate that every medical treatment request go through UR, though I know that some payers have systems in place to force all requests to UR for their own reasons, either operational efficiency or liability concerns.

But that is irrelevant to this discussion, which as you likely have concluded, is just another example of unintended consequences.

I was initially a proponent of IMR and frankly I think that the CONCEPT is sound.

But the execution is fatally flawed and will never work in its current configuration. The motivations built into the law are misguided.

Back to the drawing board folks...

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