WCLA MCLE 4-16-13

• Utilization Review: Section 8.7, URAC Standards, Recent Decisions

• Tuesday April 16, 2013• 12:00 pm to 1:00 pm• James R. Thompson Center , Chicago, IL• 1 Hour General MCLE Credit

Section 8.7 Amendments• (a) As used in this Section: "Utilization review" means the evaluation of

proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of or nationally recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine evidence based upon standards as provided in this Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment.

Section 8.7 Amendments• i) Upon receipt of written notice that the employer or the

employer's agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines.

• (i)(1) The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer's agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome.

Section 8.7 Amendments

• (i)(2) Written notice of utilization review decisions, including the clinical rationale for certification or non-certification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee.

• (i)(3) An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section.

Section 8.7 Amendments

• (4) When a payment for medical services has been denied or not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of his or her injury.

Section 8.7 Amendments• (5) The medical professional responsible for review in the final stage of utilization review

or appeal must be available in this State for interview or deposition; or must be available for deposition by telephone, video conference, or other remote electronic means. A medical professional who works or resides in this State or outside of this State may comply with this requirement by making himself or herself available for an interview or deposition in person or by making himself or herself available by telephone, video conference, or other remote electronic means. The remote interview or deposition shall be conducted in a fair, open, and cost-effective manner. The expense of interview and the deposition method shall be paid by the employer. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party's expense; provided, however, that a party attending a deposition shall give written notice of that party's intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

Section 8.7 Amendments

• An admissible A utilization review shall will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12.

Section 8.7 Amendments• (j) When an employer denies payment of or refuses to authorize payment of

first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this Section and does not comply with all other requirements of this Section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act. The changes to this Section made by this amendatory Act of the 97th General Assembly apply only to health care services provided or proposed to be provided on or after September 1, 2011.

Medical Treatment Guidelines vs.Utilization Review (Management) Standards

• Medical Treatment Guidelines

• Substantive• AAOS, ACOEM, ODG,

Intracorp, McKesson• Many• National Guideline

Clearinghouse• http://guideline.gov/

• Utilization Review Standards

• Procedural• URAC, internal

procedures adopted • Only one! URAC• URAC (Accreditation

Commission)• https://www.urac.org/

about/

Medical Treatment Guidelines

• Not all the same• Can be ranked• Rand: Evaluating Medical Treatment Guideline

Sets for Injured Workers in California• http://www.rand.org/content/dam/rand/pubs

/monographs/2005/RAND_MG400.pdf• Lumbar spinal fusion: Validity: AAOS, YES;

ACOEM, Mckesson, ODG, Validity Uncertain; Intracorp, Not Valid

URAC Standards• Workers' Compensation Utilization Management Standards, Version 5.0• http://insurance.illinois.gov/URO/WorkersCompUMStdsv50.pdf

• Table of Contents• Workers' Compensation Utilization Management , Version 5.0• Initiation of Review Process...............................................................................................................................69• Initial Screening..................................................................................................................................................69• Initial Clinical Review........................................................................................................................................70• Peer Clinical Review...........................................................................................................................................70• Peer-to-Peer Conversation..................................................................................................................................71• Time Frame for Initial UM Decision..................................................................................................................72• Notice of Certification Decisions........................................................................................................................74• Notice of Non-Certification Decisions...............................................................................................................74• UM Procedures...................................................................................................................................................75• Information Upon Which Utilization Manangement is Conducted....................................................................75• Appeals Considerations......................................................................................................................................77

Time Frame for Initial UM DecisionWCUM - 17 - Prospective Review Timeframes

• For prospective review, the organization issues a determination:• (a) As soon as possible based on the clinical situation, but in no case later than 72 hours of

the receipt of request for a utilization management determination, if it is a case involving urgent care; or

• (b) Within 15 calendar days of the receipt of request for a utilization management determination, if it is a non-urgent case.

• (c) For non-urgent cases this period may be extended one time by the organization for up to 15 calendar days:

• (i) Provided that the organization determines that an extension is necessary because of matters beyond the control of the organization; and

• (ii) Notifies the worker, prior to the expiration of the initial 15 calendar day period of the circumstances requiring the extension and the date when the plan expects to make a decision; and

• (iii) If a worker fails to submit necessary information to decide the case, the notice of extension must specifically describe the required information, and the worker must be given at least 45 calendar days from receipt of notice to respond to the plan request for more information.

“Case Involving Urgent Care”• Case Involving Urgent Care: Any request for a utilization management determination

with respect to which the application of the time periods for making non-urgent care determinations a) could seriously jeopardize the life or health of the consumer or the ability of the consumer to regain maximum function, orb) in the opinion of a physician with knowledge of the consumer’s medical condition, would subject the consumer to severe pain that cannot be adequately managed without the care or treatment that is the subject of the case. (Note: This definition is derived from the Department of Labor’s definition of “claim involving urgent care.”)

• Interpretive Note for term “Case Involving Urgent Care”:While the URAC standards are silent on the methods by which a claim is determined to be a “case involving urgent care,” the Department of Labor claims regulation (29 C.F.R. § 2560.503-1(m)(1)) specifies that whether a claim is a “claim involving urgent care” is to be determined by an individual acting on behalf of the health benefits plan applying the judgment of a prudent layperson who possesses an average knowledge of health and medicine. Any claim that a physician with knowledge of the claimant's medical condition determines is a “claim involving urgent care” shall be treated as a “claim involving urgent care.

“Peer Clinical Review”• WCUM - 13 - Peer Clinical Review Cases• The organization conducts peer clinical reviews for all cases where a

certification is not issued through initial clinical review or initial screening. (Mandatory)

• WCUM - 14 - Peer Clinical Reviewer Qualifications• Individuals who conduct peer clinical review:• (a) Are appropriate health professionals; (Mandatory)• (b) Are qualified, as determined by the medical director or clinical

director, to render a clinical opinion about the medical condition, procedures, and treatment under review; and (Mandatory)

• (c) Hold a current and valid license: (Mandatory)• (i) In the same licensure category as the ordering provider; or• (ii) As a doctor of medicine or doctor of osteopathic medicine.

Coventry Example

• Prospective• Determination: Based on the clinical information

submitted for this review and using the evidence-based, peer-reviewed guidelines referenced above, this request for a third lumbar ESI is not certified

• Comprehensive peer to peer• Criteria used in analysis: Official Disability Guidelines

(ODG)• “You may request an appeal…”• Notice to provider and to Petitioner’s lawyer

Recent Appellate Court Cases• Elite Staffing v. IWCC, No. 1-11-3253WC, 12-28-12 (Rule 23):“Claimant asks us to

impose sanctions against respondent pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) for bringing a frivolous appeal. Claimant contends that the instant appeal was not undertaken in good faith and was only intended to cause unnecessary delay, needlessly increasing the cost of litigation of this case. However, given the conflicting medical evidence of record, as well as the utilization review report, we decline claimant's request for sanctions.”

• Reyes v. IWCC, No.2-11-0715WC, 6-25-12 (Rule 23): Employer points to the utilization review which certified only 12 chiropractic sessions as medically necessary; however, a utilization review is not definitive and, instead, must be considered "along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment." 820 ILCS 305/8.7(i) (West 2008)…Although other evidence was conflicting, it was within the province of the Commission to resolve those conflicts… The Commission appropriately weighed the conflicting evidence and an opposite conclusion is not clearly apparent.

Recent Appellate Court Cases• Edmar Heating v. IWCC, No. 2-10-1250WC (Rule 23): “The employer argues that the Commission abused its

discretion when it upheld the arbitrator's decision to exclude the employer's Exhibit No. 10, which was a report that stemmed from the utilization review performed of the claimant's chiropractic treatment. During the June 15, 2009, arbitration hearing, the claimant's counsel objected to the report on hearsay grounds, and the arbitrator sustained the objection and excluded the report. Although the employer had sent the claimant a letter on February 16, 2009, communicating its intent to introduce the utilization review report into evidence during the hearing, the claimant did not indicate that he was objecting to the report until the employer's counsel moved to introduce it at the hearing four months later. The employer argues that the claimant waived any objection to the admission of the report by this dilatory conduct and that the report should have been admitted. We disagree.”

• “The employer has presented no authority for the proposition that a party to a workers' compensation proceeding waives an objection to the admission of evidence, even though the party objected at the time the opposing party moved for its admission, merely because the party failed to announce its intention to object to the evidence before the hearing. … The claimant's objection to the admission of the utilization review report was timely and proper. Moreover, because the claimant had not stipulated to the admission of object to its admission on hearsay grounds and should have prepared to meet such an objection. At a minimum, the employer could have moved for a continuance so the author of the report could testify and be cross-examined at the hearing. The employer failed to do so. Its only argument in favor of admission was that the claimant had failed to object prior to the hearing. The employer does not argue that the report was not hearsay or that it fell within a hearsay exception. Accordingly, the Commission's decision to exclude the report was not an abuse of discretion.”

Recent Commission Decisions• Redmon v. GSI, 13IWCC0262 (3-18-13): A Peer Review Report was prepared on March 2, 2012, by Dr. Darryl

Thomas, a Texas board certified orthopedic surgeon, with regard to the medical necessity of a left De Quervain's release. Dr. Thomas reviewed various treatment records pertaining to Petitioner and was of the opinion Petitioner sustained an injury on September 15, 2007, secondary to repetitive trauma. Dr. Thomas determined that the proposed surgery was not necessary as Petitioner had not first attempted a three month trial of conservative care and splinting as recommended by Official Disability Guidelines. According to Dr. Thomas, Petitioner had been non-compliant with splinting and there was no evidence of recent conservative care other than an injection in November of 2011. (Res. Ex. 10)…Respondent is ordered to authorize and pay for three months of conservative treatment (splinting and injections) as recommended by Dr. Thomas, Respondent's peer review physician. Should conservative treatment not resolve Petitioner's symptoms (as Dr. Thomas acknowledged it is generally only successful in the majority of cases), Respondent is ordered to authorize and pay for surgery to Petitioner's left hand and wrist as recommended by Dr. Baker, including all necessary and reasonable pre-surgical and post-surgical care.

• Dicanio v. Cook County, 13IWCC0208 (2-27-13): Utilization review was performed by both an orthopaedic surgeon and a chiropractor, and neither found any reason to continue the treatments beyond the initial six visits. Upon review of the medical record, the Arbitrator notes no evidence of improvement, either subjective or objective in nearly eighteen months of treatment…The Arbitrator finds that any treatment by Rehabilitation, Inc. after 06/06/08, the last date for which there is any objective evidence of improvement to be unreasonable and unnecessary, and Respondent is not liable for those bills. The bills for which Respondent is liable shall be paid pursuant to the medical fee schedule and Respondent shall receive credit for all amounts paid.

Recent Commission Decisions• Hernandez v. Tyson, 13IWCC0182 (2-20-12): Respondent submitted a Coventry utilization review regarding

the medical necessity of Dr. Ramirez's treatment. Chiropractic treatment and physical therapy from September 27, 2007 through November 8, 2007 was not certified. Dr. Ramirez filed a three page appeal of the non certification. Coventry responded with another non certification (RX1)…Although he was injured at work, and although his current condition of ill-being is causally related to the accidental injury, he received excessive unnecessary medical treatment …. Petitioner's testimony regarding that treatment was unconvincing. Dr. Ramirez's testimony was unpersuasive. Respondent has previously authorized payments of $ 10,738.01 of $34,583.00 in billings. Based upon the foregoing, $ 10,738.01 of Neck and Back Clinic billing is awarded, but no more…Respondent has relied upon medical opinions from Physicians Immediate Care, thereafter from utilization review, and thereafter from Dr. Phillips in its denial of benefits. Petitioner has not met his burden of proof on this issue. Based upon the foregoing, the Arbitrator finds that Petitioner's claim for penalties and attorneys' fees is denied.

• Escoto Lopez v. Hilton, 13IWCC0152 (2-1513): Pursuant to her attorney's direction, the petitioner saw Dr. Giri Gireesan on September 30th, whose assessment was discogenic back pain. ..She returned to Dr. Gireesan on November 1st and on the 7th, at which time he opined that an MRI of her lumbar spine revealed a mild diffuse disc bulge with a superimposed small, shallow central disc protrusion with annular fissure at L4-5 and mild bilateral facet degenerative changes. Dr. Gireesan recommended lumbar epidural steroid injections. Utilization reviews by Dr. Lisa Gill on November 16th and December 23rd was a denial of certification of the epidural injections because of the negative radicular findings and studies…The petitioner failed to prove that the lumbar epidural steroid injections recommended by Dr. Gireesan are reasonable medical care necessary to relieve the effects of the work injury.

Recent Commission Decisions• Santoyo v. Scelebrations, 13IWCC0129 (2-7-13): While the Commission finds that Petitioner's

lumbar and knee conditions were related to her work accident, the Commission is not prepared to award medical expenses. The Commission notes that because the Arbitrator found no causation, he did not address the issue of the reasonableness or necessity of the medical charges, which at least on first glance appear to be unusually high. This case was tried under Section 19(b). Therefore, the case has to be remanded in any event for a determination of any additional temporary total disability benefits and/or permanent partial disability benefits, perhaps with the benefit of a utilization review analysis. Therefore, the Commission remands the case to the Arbitrator to consider the appropriate award of medical expenses.

• English v. Cook County, 13IWCC0109 (2-7-13): The Commission affirms the Arbitrator's granting of the § 8(a) Petition, but modifies the amount awarded. Dr. Markarian made a blanket opinion that the post-operative treatment is entirely appropriate, medically necessary and within the standard of care, but he did not opine why. The GENEX Utilization Reviewers, Physician Advisors Dr. Trotter and Dr. Kraft, base their opinions on guidelines and reviewed medical records as noted in their reports. The Commission gives more weight to the opinions of Dr. Trotter and Dr. Kraft than those of Dr. Markarian regarding Petitioner's post-operative care. For those charges before June 2009, the Commission awards 24 physical therapy sessions from October 17, 2008 through December 10, 2008 and 10 work conditioning sessions from March 23, 2009 through April 3, 2009, as per the GENEX Utilization Review reports.