Thursday, December 12, 2013

IMR: DWC Get Out of the Way

What is the purpose of California's Independent Medical Review?

I have to ask myself this question in light of the most recent proposed changes to Utilization Review/IMR rules published by the Division of Workers' Compensation (a whopping 75 pages long, albeit inclusive of all changes since origin).

What causes me to pause is that the new amendments would allow a medical reviewer to, “issue a determination as to whether the disputed medical treatment is medically necessary based on both a summary of medical records listed in the utilization review determination,” and additional documents submitted by the employee or requesting physician.

In addition, the latest amendments reverse the order in which documentation is mandated - prior versions of the regulations said the claims administrator shall provide the documents. This version provides that the IMR entity shall RECEIVE documents. I don't know why this was done, but to me it seems bass-ackwards.

Finally the pending amendments would allow the DWC administrative director to determine that an IMR decision is not valid because the case should not have been deemed eligible for review in the first place. The rules would say the director can vacate an IMR determination at any point unless an appeal has been filed with the Workers' Compensation Appeals Board or the time to file an appeal has expired.

IMR was statutorily authorized by Labor Code section 4610.5, added via SB 863.

LC 4610.5 provides a list of the documents that are mandatory for an IMR to occur:


(l) Upon notice from the administrative director that an independent review organization has been assigned, the employer shall provide to the independent medical review organization all of the following documents within 10 days of notice of assignment:

(1) A copy of all of the employee's medical records in the possession of the employer or under the control of the employer relevant to each of the following:

(A) The employee's current medical condition.

(B) The medical treatment being provided by the employer.

(C) The disputed medical treatment requested by the employee.

(2) A copy of all information provided to the employee by the employer concerning employer and provider decisions regarding the disputed treatment.

(3) A copy of any materials the employee or the employee's provider submitted to the employer in support of the employee's request for the disputed treatment.

(4) A copy of any other relevant documents or information used by the employer or its utilization review organization in determining whether the disputed treatment should have been provided, and any statements by the employer or its utilization review organization explaining the reasons for the decision to deny, modify, or delay the recommended treatment on the basis of medical necessity. The employer shall concurrently provide a copy of the documents required by this paragraph to the employee and the requesting physician, except that documents previously provided to the employee or physician need not be provided again if a list of those documents is provided.


That's a lot of potential records, but let me make this easy for the reader.

The first and most important word in this entire sub-section is "SHALL," as in SHALL PROVIDE.

The second most important word is "ALL," as in "ALL OF THE FOLLOWING DOCUMENTS" and "ALL OF THE EMPLOYEE'S MEDICAL RECORDS."

There is nothing in that section that authorizes an IMR decision based upon a summary of records.

Section 4610.6 governs the conduct of an IMR.

There is nothing in that section that permits any review based solely on a summary of anything. Indeed, subsection (b) of 4610.6, while allowing review of numerous "other" documents and relevant information provided presumes that there will be a complete record in that subsection (e) requires citation to "the employee's medical condition, the relevant documents in the record, and the relevant findings associated...."

Subsection (g) of 4610.6 makes the findings of the IMR the determination of the Administrative Director, so I suppose that there is a remedy for the affected injured worker to appeal when the AD summarily denies UR based on an incomplete IMR record, or an IMR request is denied due to lack of documentation since the first reason given for appeal is "The administrative director acted without or in excess of the administrative director's powers."

But why even go there? Doing so completely defeats what I understand to be the purpose of IMR - which is to expeditiously and finally make a determination of medical necessity for a proposed treatment (for a whole year by the way, so that at least the request can then be shifted over to group/general health if that's available, or maybe MediCal... but that's another post).

If the parties are going to be required to appeal a faulty decision of the AD then it serves no one any purpose. The reason for IMR is to alleviate judicial intervention and while an appeal doesn't take the matter back to the adjudication level it does unnecessarily delay the treatment decision.

The proposed rules entertain concepts that are not part of SB 863, are not necessary to IMR functionality, and do not further the concept of expeditious review of medical decisions.

Let's stop fooling around. This really isn't a difficult proposition. The code is clear - if the employee disputes a UR determination then the employee requests IMR. At that time ALL relevant records MUST be delivered to IMR by the employer/carrier within the prescribed time frame.

Any failure in that regard is simply a matter of delay and is covered by 4610.5(i):

"(i) An employer shall not engage in any conduct that has the effect of delaying the independent review process. Engaging in that conduct or failure of the plan to promptly comply with this section is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day that proper notification to the employee is delayed. The administrative penalties shall be paid to the Workers' Compensation Administration Revolving Fund."

Note that the code says "has the effect of delaying." Not that there was a delay, not that there is a complaint of delay, but that the action of the claims administrator has the EFFECT of a delay.

Boom - penalty!

It really is that simple. At least the proposed regulations do recognize these penalty issues, but with pages of various complex penalty situations.

We have a great tendency in California workers' compensation to make things as unnecessarily complex as possible. 75 pages of regulations to implement the relatively simple concept of UR and IMR is just out of control.

If you can read these without getting a headache then bravo for you. I'm going back to bed though - my head hurts...


  1. Julius Young has also commented on this latest draft of the proposed regulations:

  2. This entire law is rigged against the injured worker, the Administrative Director will send an invalid UR through to IMR as in my case.