California: The Highly Technical Time Frames Involved in Utilization Review

Can it be inferred that a communication of a determination 30 minutes after the deadline means the actual decision was made within that 30 minute time frame? Does the same 5 day time frame for making a UR determination also include the time to communicate the decision to the requesting physician?

By Richard M. Jacobsmeyer, Esq.

A recent WCAB panel decision has highlighted just how technical the time frames involved in Utilization Review (UR) can get when the WCAB is attempting to determine if it has jurisdiction to decide a medical treatment issue under either Dubon v. World Restoration, Inc. (2014) 79 Cal Comp Cases 1298 [79 CCC 1298] (Appeals Board en banc decision) or Bodam v. San Bernardino County/Department of Social Services (2014) 79 Cal Comp Cases 1519 [79 CCC 1519] (Appeals Board significant panel decision). The issue is crucial as timely Utilization Review determinations, properly communicated, are not reviewable by the WCAB and may only be reviewed through Independent Medical Review (IMR). However, any flaw in the timing or communication of the utilization review determination can result in WCAB jurisdiction under one of the above cited cases.

(Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.)

In Michael Green v. Elle Placement dba Golden Gate Staffing & Lumbermen’s Underwriting Alliance, 2016 Cal. Wrk. Comp. P.D. LEXIS --, a split panel decision, a number of tricky timing issues were considered by the WCJ and subsequently by the WCAB in its decision after reconsideration. The timing outlined by the WCJ and WCAB was as follows:

> A Request for Authorization (RFA) on Friday, April 17, 2015 was faxed to defendants at approximately 6:00 p.m.

> On April 24th the utilization review physician contacted the requesting physician’s office and left a message; however, the utilization review determination did not disclose the content of that method.

> On Monday, April 27, 2015, the determination to non-certify the request for surgery was faxed at approximately 6:00 p.m. to the requesting physician’s office communicating the denial of authorization for surgery.

In analyzing the time limits of the utilization review determination and communication, both the WCJ and WCAB concluded the RFA submitted on April 17, 2015 at approximately 6:00 p.m. was sent after the close of business at 5:30 and deemed received on the following business day pursuant to 8 Cal. Code Reg. § 9792.9.1(a)(1) [R 9792.9.1]. The next business day was the following Monday, April 20, 2015. Both the WCJ and WCAB further agreed that with receipt on Monday, April 20, 2015, day one of the time frame for making a determination on the RFA was the following day Tuesday, April 21. The fifth business day for making a determination on the RFA therefore fell on the following Monday, April 27, 2015.

However, at this point the analysis of the WCJ (along with the dissenting Commissioner Ronnie Caplane) diverges from that of the majority of the WCAB panel. The WCJ concluded that since the utilization review determination was communicated after 5:30 on Monday, April 27, it was not timely. She rationalized that if the time frame of 5:30 is the end of the business day for submission of the RFA, then the same time frame was the end of the business day for making the determination on the RFA, which would require it to have been completed by the end of the fifth day as set forth in Labor Code § 4610(g)(1) [LC 4610]. Defendant in the case argued that the business day for purposes of making the determination effectively ran until midnight. The WCJ rejected that analysis. She further concluded the communication of the determination on April 27 after 5:30 was also untimely at it had to be completed in the same time frame as the UR determination. On that basis the WCJ ruled the WCAB had jurisdiction to decide the medical treatment issue.

All three of the commissioners in the case appeared to adopt the WCJ’s conclusion that the end of the business day and hence the time to make the UR determination was 5:30 p.m. on Monday, April 27. The majority panel of Commissioners Zalewski and Razo concluded that, in the absence of specific information on the time of the utilization review determination by the reviewing physician, it was reasonable to infer, with communications nearly a half an hour after the end of the business day, that the actual decision was made during the business day on April 27, 2015, i.e., before 5:30 pm.. Commissioner Caplane, in her dissent, argued the reasonable inference was the decision was made after 5:30 since the communication was also made after 5:30, and, therefore, UR was untimely.

The decision next focused on the timeliness of the communication to the requesting physician. The majority of the commissioners pointed out that as long as the decision itself was made prior to the 5:30 time frame, the obligation to communicate the determination was a separate 24 hour time frame. Therefore, the utilization review provider has 24 hours after the decision is made to transmit by fax, phone or electronic means the results of the UR decision to the requesting physician. The WCJ, in her decision, had concluded the time frame for communication of the decision was within the same five business days that existed for making the determination. The WCJ argued that if additional time was tacked onto the determination process, defendants could wait until the end of the five days to make the determination and then have an additional 24 hours to communicate same. Commissioner Caplane agreed with this analysis in her dissent.

The majority panel rejected the WCJ’s analysis, pointing out that the time frames involving determination of utilization review is set forth in Labor Code § 4610(g)(1), whereas the time reference for communication to the requesting physician is contained in Labor Code § 4610(g)(3) and 8 Cal. Code Reg. § 9792.1.9(3)(A)*. That regulation requires initial communication within 24 hours of the actual decision followed up by communication in writing within two business days. Similarly, 8 Cal. Code Reg. § 9792.9.1(e) [R 9792.9.1] provides the same time frame. As noted by Commissioner Zalewski, the time frame for making the determination and the time frame for communicating the determination are separate, with the communication time frame commencing upon completion of the actual UR determination.

The majority of the WCAB panel in its decision after reconsideration upheld the utilization review determination as timely issued and timely communicated.

COMMENTARY:

This case clearly represents a very close call that very likely could have gone either way depending on the make-up of the WCAB panel issuing the decision. The entire case turns on the willingness to infer when the actual determination to deny authorization for the RFA was made. Commissioner Caplane argued that the communication of the determination 30 minutes after the 5:30 deadline infers that the actual decision was made within that 30 minute time frame. The majority panel was unwilling to make that inference, and, in indeed, it does seem rather farfetched to assume that the UR doctor could make the determination, communicate the decision with the necessary documentation in support of the decision to the Nurse case manager (NCM) and then have the NMC generate the UR determination and fax it all within a period of one half hour.

The interpretation of the WCJ and the dissenting Commissioner that the 24 hours to communicate the UR decision is within the same 5 day time frame as the time for making the determination is puzzling. Labor Code § 4610(g)(1) clearly indicates the UR decision is what triggers the obligation to communicate the result. The Legislature could have included the language requiring communication of the UR determination within the same time frame by adding the requirement into Labor Code § 4610(g)(1), but it did not and instead created a separate requirement triggered by the actual UR decision. If the WCJ’s and dissent’s position was adopted, it could mean for all practical purposes that UR would have to be completed before the end of the five day time frame in order to shoehorn in the communication. That interpretation is simply not consistent with either the statutory or regulatory requirements.

One piece of factual information that might have helped to resolve this issue is frequently contained in the utilization review vendor’s files, which is the log of when specific events occur. It is likely that such information, which is generally communicated electronically between the physician and ultimately the party generating the utilization review report, is documented fairly carefully with email or other electronic transmission. The reality is, given the Dubon and Bodam decisions of the WCAB, applicants’ attorneys, judges and even commissioners appear to be looking for ways to get around the bar to having the WCAB decide medical treatment issues. From a defense standpoint, careful preparation of the records to show the timing becomes critical. Certainly, from the applicant's bar viewpoint, careful review of the factual information contained in the RFA as well as making certain they have copies of the actual faxes forwarded to the physician will help make a decision as to whether a successful outcome can be obtained at the WCAB in challenging the utilization review determination.

An additional little nugget in this case is language in the WCAB’s majority panel decision regarding the five day time frame for issuing a decision. The board noted as follows:

“The WCJ correctly concludes that the UR decision was timely made within the five ‘working days’ period described in Labor Code section 4610(g)(1). However, the statute provides for the issuance of a prospective UR decision like the one in this case within 14 days of receipt of the RFA, not five working days as indicated in the Report (Lab. Code, § 4610(g)(1).) Instead, the ‘five working days’ time period under section 4610(g)(1) begins to run when the UR reviewer is in ‘receipt of the information reasonably necessary to make the determination.’ (Id, italics added.)”

The panel goes on to note that there’s no evidence as to when the UR reviewer received the information reasonably necessary to make the determination as there is no indication of when the medical records identified in the UR determination report were actually received as the RFA submitted by the requesting physician did not appear to contain those reports. It goes on to note that even if the UR reviewer received the reports at the same time the RFA was received, the UR determination that issued five working days thereafter was timely.

There is very little discussion in existing case law on the concept of receipt of information reasonably necessary to make the determination and how that plays into the UR determination time frames. Several cases have noted the decisions are to be made within 5 days but in no later than 14 days of receipt of the RFA. The requirement of having the necessary information could end up being a determining factor in making a utilization review determinations particularly if the only thing received with the RFA is the actual RFA itself and no supporting documentation. The lack of supporting documentation could end up being a critical factor in the viability of a utilization review determination in proceedings before the WCAB.

Read the Green noteworthy panel decision.

* Publisher's Note: There is no Rule 9792.1.9(3)(A) in the California Code of Regulations. It is unclear which rule and subsection contain the quoted language on page 5, third full paragraph, of the WCAB's decision. Note that the WCJ cited a statute -- Labor Code Section 4610(g)(3)(A) -- in her Report, and that statute contains the language quoted on page 5 of the WCAB's decision.

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