California: The Critical Distinction Between the “Prospective” and “Concurrent” UR Determinations

Recently, a panel of Workers’ Compensation Appeals Board (WCAB) commissioners addressed a Utilization Review (UR) denial of a medical treatment prescription involving an employee who had suffered a traumatic brain injury. The employee was already in an “in-patient” facility, and the request for treatment was for continued in-patient care (Hector Garcia v. Barrett Business Services, ADJ8844834). The panel concluded that the UR determination was not timely because it did not issue within 72 hours, the time allowed for a “concurrent” UR determination.

In reaching its conclusion, the panel first cited to the recent California Supreme Court case, King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 83 Cal. Comp. Cases 1532. The panel then cited to Labor Code Section 4610(i)(3) and stated that where the employee faces an imminent and serious threat to his or her health, a “concurrent” UR decision shall be made in a timely fashion “but not to exceed 72 hours” after receipt of information reasonably necessary to make the determination.

The panel, however, improperly conflated Labor Code Section 4610(i)(3) and Labor Code Section 4610(i)(1). Section 4610(i)(1) specifically provides that “prospective and concurrent” determinations must “not be exceed five working days” from receipt of the request for treatment but “in no event more than fourteen days” from the request for treatment. The 72-hour timeframe, however, pursuant to Section 4610(i)(3), applies only to those situations where the employee faces an “imminent and serious threat” to his or her health. This section further states that this shorter timeframe will be applicable to those requests made by physicians “prior to, or concurrent with, the provision of medical treatment services…” Thus, this shorter 72-hour timeframe may apply to both “prospective” or “concurrent” treatment requests.

This case begs the question of what treatment should be considered “prospective” or “concurrent”? California Code of Regulations, Section 9792.6.1(c) provides that “concurrent” review means utilization review conducted during an inpatient stay. However, in King, the Supreme Court concluded that a continuing medication request constituted a “concurrent” request to the extent the Court there specifically indicated that the fact the disputed medical care could not be discontinued until his physician had been notified and a care plan had been agreed upon were specific “safeguards” that were provided to the employee by the workers’ compensation process (Section 4610(i)(4)(C). Is California Code of Regulations, Section 9792.6.1(c)’s attempt to restrictively define what constitutes a “concurrent” review under Labor Code Section 4610(i)(4)(C) valid?

This also raises an additional issue: If the treatment request is deemed “concurrent”, and if the UR reviewer has not notified the employee’s physician or where a care plan has not been completed, can it be argued that the UR determination was not complete and therefore not timely?

In conclusion, the rules applicable to UR can be extremely confusing. When evaluating UR denials of treatment, the first question should be asked is whether the request falls under the “concurrent” or “prospective” category. If the treatment request falls under the “concurrent” category, the next question may be whether the UR determination has complied with the five- or fourteen-day timeframe. If “concurrent”, the next question is whether the determination was timely communicated to the treating physician and whether a care plan “that is appropriate for the medical needs of the employee” has been established. Finally, if the request involves an “imminent and serious” threat, whether “concurrent” or “prospective”, the 72-hour timeframe should be applied and it must be determined if the UR determination was timely under the shorter timeframe.

The PDF for Garcia is set forth at the end of this post.

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