October 17th, 2023
Sure Log
Attorney of Counsel, Michael Sullivan & Associates, LLP
An employer must conduct utilization review (UR) to determine whether to approve, modify or deny a request for treatment. If the medical services have not been provided, Labor Code 4610(i)(1) normally requires the UR determination to be made within “five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.” California Code of Regulations § 9792.9.1(c)(3) generally requires prospective or concurrent UR decisions to be made within five business days from the date of receipt of the completed DWC form RFA (request for authorization).
Sometimes, employers might be required to conduct UR on an expedited basis. LC 4610(i)(3) requires an expedited review when the employee faces an “imminent and serious threat to his or her health, … or the normal timeframe for the decisionmaking process … would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function.” In those situations, the UR decision must be made in a timely fashion “not to exceed 72 hours after receipt of the information reasonably necessary to make the determination.”
CCR 9792.9.1(c)(4) reiterates the requirements for an expedited review. “Prospective or concurrent decisions to approve, modify, delay, or deny a request for authorization related to an expedited review shall be made in a timely fashion appropriate to the injured worker’s condition, not to exceed 72 hours after the receipt of the written information reasonably necessary to make the determination.”
CCR 9792.9.1(c)(4) states, “The requesting physician must certify in writing and document the need for an expedited review upon submission of the request. A request for expedited review that is not reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the timeframe for utilization review under subdivision (c)(3) would be detrimental to the injured worker’s condition, shall be reviewed by the claims administrator under the timeframe set forth in subdivision (c)(3).” So, an expedited review requires a requesting physician not only to certify in writing the need for it, but to support the request with evidence.
In Diaz v. Pacific Coast Framers Inc., 2023 Cal. Wrk. Comp. P.D. LEXIS 211, the WCAB held that a defendant’s UR determination was timely, and that the board did not have jurisdiction to determine the medical dispute when the applicant failed to establish that the treatment request was subject to expedited review. The treating physician requested multiple services, including a 30-day inpatient stay, which was requested on an expedited basis. A UR decision was issued five days after it was received by the defendant, and certified the requested treatment except for the inpatient stay. The applicant argued that the UR decision was untimely because the treating physician’s request for authorization called for expedited review.
The WCAB found that none of the reports from the requesting physician established that the applicant’s condition was an imminent and serious threat to his health that would warrant the 72-hour expedited review delineated in CCR 9792.9.1(c)(4). Although the RFA sought review on an expedited basis, the WCAB concluded that the request for a 30-day inpatient stay was not subject to an expedited review, but was subject to review under the time frame established for a regular review under CCR 9792.9.1(c)(3). So the WCAB did not have jurisdiction to determine whether the inpatient stay was reasonably required to cure or relieve the applicant from the effects of his industrial injury.
Diaz possibly represents a change in the WCAB’s position on this issue. Previously, in Hall v. Western Medical, 2017 Cal. Wrk. Comp. P.D. LEXIS 581, the WCAB dealt with a similar situation, and the defendant argued that the requesting physician did not document the need for an expedited review. The WCAB stated, “These arguments fail because defendant is not authorized to disregard the treating physician’s characterization of an RFA. No statute or case allows a defendant to ignore the statutory and regulatory time frames for acting by simply declaring that the RFA did not meet the criteria for expedited treatment.”
The Hall decision, however, is arguably flawed, because the WCAB did not discuss the requirements of CCR 9792.9.1(c)(4). In Hall, the WCAB alternatively found that the requesting physician’s concerns that the request should be expedited were justified by the record.
The conclusion, pursuant to CCR 9792.9.1(c)(4), is that a requesting physician must certify in writing the need for an expedited review, and the request also must be reasonably supported by the evidence. The current RFA form simply allows a physician to check a box if he or she believes that an expedited review is necessary. Checking the box alone would not be sufficient for an expedited review, but the WCAB has authority to review the medical evidence to determine whether a request for expedited review is “reasonably supported by evidence” pursuant to CCR 9792.9.1(c)(4).
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