One of the most significant recent developments in limiting unnecessary medical care costs in California workers’ compensation came with the July 1, 2013, implementation of the Independent Medical Review (IMR) process. The IMR statute allows workers’ compensation claimants to appeal Utilization Review (UR) denials of medical care with the resulting IMR determination binding upon the parties. Initially, the Centers for Medicare and Medicaid Services (CMS) refused to recognize IMR determinations as providing a basis for limiting medical care in a Medicare Set Aside (MSA), thus maintaining their normal practice of largely relying upon the opinions and recommendations of the treating physician to allocate future medical care. More recently, ExamWorks Clinical Solutions (ECS) has identified favorable trends in CMS recognition of IMRs in MSA submissions.
Section 4610.5-.6 of the California Labor Code created a process by which a UR denial of medical care is reviewed outside the judicial process by a physician relying upon evidence-based treatment guidelines. The IMR determination is considered a final determination:
The determination of the independent medical review organization shall be deemed to be the determination of the administrative director and shall be binding on all parties. Section 4610.6(g) (emphasis added).
While the determination can be appealed within 30 days of mailing, the bases for appeal are limited. Consequently, in most cases this is indeed a final determination on the appropriateness of the medical care.
Following the July 1, 2013 implementation of the IMR process, the initial response from CMS was rejection of IMR determinations as a basis to exclude medical care from the MSA. When pressed for a reason for their rejection, CMS representatives provided the following statements:
- It is not a judicial decision and can be appealed, thus it should not be considered a final determination for which CMS should give deference.
- The treating physician can renew the request after one-year post-IMR determination, again resulting in the IMR not being a final determination.
There may also have been some reluctance by CMS to recognize IMR determinations given pending litigation challenging the constitutionally of the IMR process. Nonetheless, the California First District Court of appeal upheld the constitutionality of the process in the case of Stevens v. W.C.A.B., A143043, decided on 10/28/2015. While challenges remain to the IMR statute, this is a significant decision supporting the law.
On behalf of clients, ECS has responded to these explanations with reasoned positions on why, in most cases, the IMR determination should be considered a final determination subject to deference by CMS in the allocation of the MSA. Similar arguments have been made by other MSA submitters and CMS trends in IMR recognition continue to become more favorable.
CMS Trends in IMR Recognition
CMS representatives have gone from complete refusal to recognize IMRs, to inconsistent recognition of IMRs, to now recognizing IMRs to limit medical care in certain consistent circumstances. The following provides current trends in CMS recognition of IMRs with circumstances supporting such recognition:
- IMR determination with no subsequent medical records or prescription history: If, following the IMR determination, there is an absence of medical treatment records or prescription history, then CMS will abide by the IMR determination as effectively the final word on medical care.
Example: IMR determination dated 12/15/2015 upholds UR denial of Oxycodone and there are no medical records or prescription history post 12/15/2015 documenting ongoing Oxycodone use.
- IMR determination with subsequent medical records or prescription history confirming IMR determination: If, post-IMR determination, medical records and/or prescription history affirmatively indicate the treatment or medication is no longer being recommended or undertaken, then CMS will abide by the IMR determination.
Example: IMR determination dated 12/15/2015 upholds UR denial of Oxycodone and medical treatment records post 12/15/2015 confirm the claimant has discontinued Oxycodone.
- IMR determination with subsequent medical records or prescription history contrary to IMR determination: If, following the IMR determination, the medical records and/or prescription history demonstrate the treating physician continues to recommend the denied treatment or medications; CMS will include the treatment or medications in the MSA, even when the carrier is not paying for the treatment or medication.
Example: IMR determination dated 12/15/2015 upholds UR denial of Oxycodone, but medical treatment records post-12/15/2015 document the treating physician continues to prescribe Oxycodone.
- IMR determination obtained post-MSA determination: ECS managed a recent case on behalf of a client where more than one year after the MSA was submitted for review and CMS issued its determination, our client obtained and IMR determination regarding the medications included in the MSA. We submitted the IMR determination to CMS with a request the MSA be reconsidered (re-reviewed). CMS responded by removing the denied medications from the MSA and issuing a revised MSA determination letter.
Example: MSA determination issued by CMS on 12/15/2014 which included three medications: (Insert medications). IMR determination of 12/15/2015 upholds UR denials of these medications.
When legally applicable, ECS utilizes IMR determinations to limit medical care in the MSA. Upon submission of the MSA to CMS we will submit the IMR determination along with statutory language supporting that the IMR determination is binding upon the parties.
The only exception to this policy is if the carrier demonstrates non-compliance with the IMR determination by continuing to pay for the denied treatment or medications. Also, if ECS is still within the 30-day window in which an IMR determination can be appealed we need to wait for the expiration of that period before submitting the MSA to CMS. Failure to wait for the expiration of the 30-day period could result in CMS failing to treat the IMR as a final determination on the issue of medical care.
Based upon these trends, ECS recommends the following procedures to provide the best chance of CMS abiding by an IMR determination:
- Make sure ECS receives the IMR determination.
- Request submission of the MSA to CMS shortly after obtaining an IMR determination upholding a denial. ECS can submit once the 30 day appeal period has expired.
- Do not issue payments for UR/IMR denied medical care.
In all, trends show a willingness by CMS to recognize this California statutory requirement that may operate to limit the cost of MSAs going forward. ECS continues to monitor trends in CMS’ recognition of IMRs and will assert the appropriateness of IMRs in limiting medical care in the MSA. If you have any questions, the ECS MSP Compliance team of attorneys is available to assist.