The new California Utilization Review Penalty Regulations for workers’ comp are now official. We suspect that the final blessing from the Office of Administrative Law was met with a significant sigh of relief from the Division of Workers’ Compensation. Other than the level of permanent disability benefits, nothing has vexed the workers’ compensation community more than utilization review. In fact, to hear most talk about it, utilization review has almost a presumption of incorrectness. Now that is what you call ironic.
For more than a year now, all sides have decried “insurance companies” doing bad things with utilization review. Let’s not forget that a very large percentage of the state’s employees are covered by their self-insured employers and that includes most cities and counties.
One bill in the legislature, Assembly Bill 338 (Coto), which includes an increase in temporary disability benefits, would toll the running of the TD clock for the time it takes to resolve a utilization review dispute – upward of six months. Any guesses on how a judge will rule when confronted with the prospect of cutting TD off if he or she rules in favor of the claims payer?
“Guidelines? We don’t need no stinkin’ guidelines!”
Of course, there is also outrage over having UR decisions made by licensed physicians in another state. The Labor Code states that treatment guidelines are supposed to be nationally recognized and evidence based. Apparently, while ACOEM guidelines are supposed to be nationally recognized, they can be interpreted only by California doctors. Well, we do tend to do things differently here, don’t we?
Bureaucratic delays, incomplete, inaccurate, or inappropriate requests from physicians, judges who can’t be bothered with things like presumptions or evidence – all those things contribute to the friction that still exists in delivering medical care. There are certainly issues with how medical benefits are delivered in the post-SB 228/899 world, but hammering “insurance companies” isn’t going to resolve all those issues. The model for UR in workers’ compensation is taken almost verbatim from the Health and Safety Code.
There is no reason we cannot expect this process to work – provided that physicians, claims payers, and those who resolve disputes all assume their responsibilities to make it work. To date, the hammer is falling exclusively on “insurance companies” with ever increasing weight.
During the height of the workers’ compensation crisis, then-Insurance Commissioner John Garamendi presented a sweeping proposal for reforming the system. His medical treatment recommendations assigned clear obligations to all who were responsible for care of injured workers. He recommended taking resolution of medical disputes out of the hands of workers’ compensation judges (a good start), and advocated for an independent medical review system as used in group health. Physicians were required to make their requests for authorization consistent with nationally recognized evidence-based guidelines or run the risk of not getting paid.
At a time when at least two agencies – the Division of Workers’ Compensation and the Department of Insurance – can’t seem to wait to get their examiners out there and document the abuses of “insurance companies,” there seems to be very little talk about obligations all should share in delivering the benefits of SB 228 and SB 899. There is no question that it has been difficult to convince physicians to alter their practice and injured workers to adjust to a different way of treating occupational injuries.
But what is lost in the current monologue is that there was also no question that medical treatment provided prior to SB 228 was excessive to the degree of harm. We would do well to remember that, rather than incessantly hammering claims payers for not just saying “yes.”