BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               SB 1160      Hearing Date:    April 13,  
          2016
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          |Author:    |Mendoza                                              |
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          |Version:   |April 6, 2016                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Gideon Baum                                          |
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                Subject:  Workers' compensation:  utilization review


          KEY ISSUE
          
          Should the Legislature increase administrative penalties for  
          employers who refuse to submit injury and medical data to the  
          Workers' Compensation Information System?
          
          Should the Legislature expand existing guidelines on the  
          provision of physical therapy and occupational therapy, as well  
          as ensure that up-to-date evidence-based guidelines are used in  
          the provision of medical treatment?

          ANALYSIS
           Existing law:
          
              1)   Establishes a workers' compensation system that provides  
               benefits to an employee who suffers from an injury or  
               illness that arises out of and in the course of employment,  
               irrespective of fault.  This system requires all employers  
               to secure payment of benefits by either securing the  
               consent of the Department of Industrial Relations to  
               self-insure or by securing insurance against liability from  
               an insurance company duly authorized by the state.  









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              2)   Requires that, if an employer is found to be employing  
               individuals without workers' compensation coverage, the  
               director of the Department of Industrial Relations (DIR)  
               serves a stop order prohibiting the use of employees until  
               workers' compensation coverage is secured. An employer may  
               protest the stop order by making and filing with the  
               director a written request for a hearing within 20 days  
               after service of the stop order. The hearing shall be held  
               within five days from the date of filing the request. 
             (Labor Code §3710.1)

             3)   Provides that medical, surgical, chiropractic,  
               acupuncture, and hospital treatment, including nursing,  
               medicines, medical and surgical supplies, crutches, and  
               apparatuses, including orthotic and prosthetic devices and  
               services, that is reasonably required to cure or relieve  
               the injured worker from the effects of his or her injury  
               shall be provided by the employer.  (Labor Code §4600)

             4)   Requires the administrative director of the Division of  
               Workers' Compensation to create a Medical Treatment  
               Utilization Schedule (MTUS), which is evidence-based, peer  
               reviewed, and addresses, at a minimum, the frequency,  
               duration, intensity, and appropriateness of all treatment  
               procedures and modalities commonly performed in workers'  
               compensation cases. The MTUS is presumed to be correct,  
               unless rebutted by a preponderance of evidence. (Labor Code  
               §§5307.27 and 4604.5)

             5)   Limits injured workers to 24 chiropractic, 24  
               occupational therapy, and 24 physical therapy visits per  
               industrial injury. Employers are not prohibited from  
               granting additional visits if necessary, however. (Labor  
               Code §4604.5)

             6)   Requires that all employers create a utilization review  
               process, which is a process that prospectively,  
               retrospectively, or concurrently review and approve,  
               modify, delay, or deny, based in whole or in part on  
               medical necessity to cure and relieve, treatment  
               recommendations by physicians, prior to, retrospectively,  
               or concurrent with the provision of medical treatment  
               services.  (Labor Code §4610)

             7)   Requires that each utilization review (UR) process shall  







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               be governed by written policies and that these policies and  
               procedures, and a description of the utilization process,  
               must be filed with the administrative director and shall be  
               disclosed by the employer to employees, physicians, and the  
               public upon request.  (Labor Code §4610(c))

             8)   Provides that, in the event over a dispute over a  
               utilization review decision on or after July 1, 2014, all  
               disputes must be submitted for Independent Medical Review  
               (IMR).  The independent reviewer's information must be kept  
               confidential.  
             (Labor Code §§4610.5 and 4610.6)

             9)   Requires that, in the absence of fraud, error, or  
               illegal conduct, the IMR decision is final and binding.   
               (Labor Code §4610.6)

             10)  Requires the administrative director to create and  
               maintain a workers' compensation information system (WCIS),  
               which is used to assist DIR to manage the workers'  
               compensation system in an effective manner, as well as  
               measuring how adequately the system indemnifies injured  
               workers and their dependents. Penalties for failing to  
               report data to the WCIS are capped at $5,000 per year.  
               (Labor Code §138.6)
           
          
          This bill  would reform the penalty structure of failing to  
          comply with the data collection requirements of the WCIS.  
          Specifically, this bill would:

             1)   Increase the minimum penalty for failing to report  
               workers' compensation data to the WCIS from $5,000 to  
               $10,000;

             2)   Require the posting of a list of claims administrators  
               who are out of compliance with the WCIS data reporting  
               requirements on the DIR website;

             3)   Starting January 1, 2019, the administrative director  
               must assess an additional penalties of not less than  
               $15,000 and not more than $45,000 if the following is true:

               i)        In the immediate previous year, the claims  
                    adjuster was assessed a penalty of $8,000 or more.







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               ii)       In the current year, the claims adjuster will be  
                    assessed a penalty of $8,000 or more in the current  
                    year.

             1)   Starting January 1, 2020, the administrative director  
               may assess an additional administrative penalty against a  
               claims administrator for a pattern or practice of failing  
               to comply with the data reporting requirements adopted  
               pursuant to this section of not less than $100,000 in any  
               single year.

             2)   Permits the director of DIR, if the administrative  
               director of DWC finds that an employer of claims  
               administrator engages in a pattern or practice of failing  
               to comply with the data reporting requirements, to issue  
               and serve a stop order on that employer prohibiting the use  
               of employee labor by the employer until the employer's  
               compliance with the date reporting requirements. The stop  
               order shall become effective immediately upon service. 


           This bill  would also modify the operation of Utilization Review  
          (UR), Independent Medical Review (IMR), and the Medical  
          Treatment Utilization Schedule. Specifically, this bill would: 

             1)   Expand and recast the existing post-surgical guidelines  
               in the MTUS to cover physical medicine and rehabilitation  
               for both post-surgical treatment and return-to-work  
               treatment and require the DWC to adopt regulations to  
               effectuate this expansion on or before January 1, 2018;

             2)   Require that, for injuries covered by the MTUS, if a  
               specific clinical topic in the MTUS has not been updated in  
               5 or more years, authorized medical treatment for injured  
               workers must be in accordance with other medical treatment  
               guidelines that are recognized generally by the national  
               medical community and scientifically based if the guideline  
               is five or less years old;

             3)   Require that, if an employer requires additional  
               information in order to make UR decision to approve,  
               modify, delay, or deny medical treatment, the employer must  
               provide a physician at least 72 hours to respond to any  
               request for medical treatment;








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             4)   Require that, on or before July 1, 2018, all UR  
               processes must be accredited by an independent, nonprofit  
               organization to certify the UR process meets specified  
               criteria, including, but not limited to, timeliness in  
               issuing a utilization review decision, the scope of medical  
               material used in issuing a utilization review decision, and  
               requiring a policy preventing financial incentives to  
               doctors and other providers based on the utilization review  
               decision. UR processes would need to be re-accredited every  
               three years, or more frequently as required by the DWC.

             5)   Require the DWC to adopt rules to implement the  
               selection of an independent, nonprofit organization for  
               those certification purposes. The DWC may also adopt rules  
               to require additional specific criteria for measuring the  
               quality of a utilization review process for purposes of  
               certification.

          


          COMMENTS
          
          1.  What is Utilization Review (UR)?

            In California's workers' compensation system, an employer or  
            insurer cannot deny treatment. When an employer or insurer  
            receives a request for medical treatment, the employer or  
            insurer can either approve the treatment or, if the employer  
            or insurer believes that a physician's request for treatment  
            is medically unnecessary or harmful, the employer or insurer  
            must send the request to Utilization Review. 

             Utilization Review (UR)  is the review process for medical  
            treatment recommendations by physicians  to see if the request  
            for medical treatment is medically necessary  . The full UR  
            process varies by vendor, but it generally involves initial  
            review by a non-physician, with higher level review(s) being  
            conducted by a physician or physicians. Only a licensed  
            physician who is competent to evaluate the specific clinical  
            issues involved in the medical treatment services may modify,  
            delay, or deny a request for medical treatment.  If the UR  
            physician does modify, delay, or deny the medical treatment,  
            then the injured worker can appeal the decision to Independent  
            Medical Review (IMR), but without the UR decision there cannot  







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            be an IMR decision.
            
            This process is triggered by the physician submitting a  
            Request for Authorization for Medical Treatment (RFA), which  
            is a Division of Workers' Compensation (DWC) form where the  
            physician details his or her diagnosis and treatment, and must  
            include an additional form which provides a narrative and  
            substantiates the need for treatment.  As was discussed above,  
            an employer or insurer cannot contest or in any way delay or  
            deny treatment without sending the RFA through UR. (see State  
            Compensation Insurance Fund v. WCAB (Sandhagen), 44 CAL. 4TH  
            230 (2008)).
           
           2.  Recent Research on UR:

            Recently, UR has come under some scrutiny by stakeholders,  
            many of whom argue that it is leading to a significant number  
            of injured workers being denied care. This claim, however, is  
            not currently supported by the data. As was discussed at the  
            Committee's March 25th oversight hearing, a recent study by  
            the California Workers' Compensation Institute (CWCI) found  
            that only approximately 25% of medical treatment requests go  
            through UR, with approximately 75% of the medical treatment  
            requests approved.  Once the approvals from UR and Independent  
            Medical Review (IMR) are included, more than 94% of treatment  
            is approved OVERALL in California's workers' compensation  
            system.  
           
            HOWEVER, there appear to be discrepancies between payors at  
            the rate they approve, modify, delay, or deny treatment  
            through UR. For example, in a recent RAND presentation before  
            the Commission on Health and Safety and Workers' Compensation,  
            a sample of payor data showed that a public self-insured  
            employer with an in-house UR process approved treatment at the  
            initial claims adjuster level about 90% of the time, while a  
            Third Party Administrator who also had an in-house UR process  
            approved treatment at the initial claims adjuster level about  
            50% of the time. While that same TPA eventually approved a  
            similar level of treatment, it is unclear why the TPA would  
            send more treatment through the full UR process. While the  
            RAND study is preliminary and the numbers above may change as  
            the study is finalized, these numbers suggest that the UR  
            process discrepancies between payors may explain stakeholder  
            concerns surrounding the UR process, and require exploration  
            to explain.







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          3.  The Goals of SB 1160:

            SB 1160 is an evolving reform bill that seeks to address  
            stakeholder concerns with varies components of the workers'  
            compensation system. These components will be discussed in  
            detail below.

            WCIS Penalties

            The Workers' Compensation Information System (WCIS) is a  
            database that is run by the Division of Workers' Compensation  
            (DWC) that is populated by employer data on workplace injuries  
            and medical bills. Through this data, the DWC is able to  
            monitor and measure how well the workers' compensation system  
            is operating. Additionally, researchers use the WCIS to study  
            the system in order to better understand how laws and  
            regulations impact injured workers and employers. Without this  
            system, the DWC is reduced to educated guesses and anecdotes  
            in regulating and improving the workers' compensation system.

            Unfortunately, according to several stakeholders, compliance  
            and data quality remain an issue with the WCIS. While  
            significant improvements have occurred in the past few years,  
            the system may still have holes in its data collection,  
            particularly among public entities. This creates blind spots  
            in our data that disproportionately impact public sector  
            employees, such as police officers, fire fighters, and other  
            first responders.

            Under current law, the maximum penalty for not providing data  
            to the WCIS is $5,000 per year. Compared to other states, this  
            penalty amount is quite low. In Texas, for example, the  
            penalties are $25,000 per day. It is likely that the higher  
            penalty amounts have assisted Texas in the development of  
            their database. SB 1160 seeks to strike a balance by doubling  
            the penalty to $10,000 per year, which is still far lower than  
            Texas, but then create a gradually increasing penalty schedule  
            designed to encourage non-compliant employers to comply with  
            the data requirements. In order to reach maximum penalties  
            allowed under SB 1160, an employer would need to be  
            significantly out of compliance for at least three years and  
            not showing any improvement in a pattern or practice of  
            refusing to provide data to the WCIS.







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            UR/IMR Process Reforms and MTUS Enhancements

            In talking to medical stakeholders throughout California, one  
            common area of friction between physicians and payors that  
            generally led to UR and IMR is physical therapy/occupational  
            therapy, and one common area of friction after medical  
            treatment was elevated to UR was a lack of peer-to-peer  
            communication and unclear policies and procedures. SB 1160  
            seeks to address these challenges in three ways.

            First, SB 1160 expands an existing chapter within the MTUS on  
            post-surgical physical medicine, which provides specific  
            physical/occupational therapy duration guidelines for  
            recovering from surgeries. By expanding this guideline to  
            include pre-surgical and return-to-work physical medicine, SB  
            1160 would provide additional guidance to employers and  
            medical providers on appropriate physical/occupational therapy  
            treatments. Further, by placing this guideline in the MTUS and  
            excluding the physical medicine guidelines from the 24 visit  
            caps, SB 1160 provides the DWC with the opportunity to craft  
            regulations that would specify the application of UR to this  
            new physical medicine guideline.

            Second, SB 1160 requires that, if a UR process needs  
            additional information in order to approve or deny a  
            treatment, the medical provider must be given at least 72  
            hours to respond to the request for additional information.  
            Currently, a medical provider can be given as little as 24 or  
            48 hours to respond to a voicemail asking for additional  
            information, which can be difficult for a medical provider  
            seeing a full complement of injured workers each day. Without  
            the information in question, a UR vendor could deny treatment,  
            leading to delays in medical treatment for injured workers. By  
            requiring 72 hours, SB 1160 will hopefully encourage  
            peer-to-peer communication among medical providers and speed  
            up high quality medical care for injured workers.

            Finally, this bill requires all UR processes to be accredited  
            by an independent, nonprofit entity to certify that the UR  
            process meets specified criteria. SB 1160 explicitly includes  
            both timeliness in issuing UR decisions and policies  
            preventing financial incentives to doctors based on medical  
            decisions as criteria for review. One existing accreditation  
            entity, URAC, currently measures UR processes against those  







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            criteria, as well as more than 70 other components. 

            Additionally, SB 1160 would require that, for injuries covered  
            by the MTUS, if a specific clinical topic in the MTUS has not  
            been updated in 5 or more years, medical treatment needs to be  
            in accordance with other, more current medical treatment  
            guidelines that are recognized generally by the national  
            medical community and scientifically based. This will ensure  
            that medical treatment is based on the latest in medical  
            research, as well as ensure that out-of-date medical treatment  
            guidelines are not granted the imprimatur of being presumed  
            correct.

          4.  Proponent Arguments  :
            
            Proponents argue that SB 1160 will help ensure timely and  
            appropriate care for injured workers. Specifically, proponents  
            argue that SB 1160 will improve compliance with the WCIS  
            through higher penalties, allowing for reliable data to  
            improve efforts to prevent workplace injuries. Proponents also  
            note that SB 1160 will help improve the provision of medical  
            care for injured workers by ensuring that only up-to-date  
            medical guidelines are used in the treatment of injured  
            workers. Finally, proponents note that SB 1160 will create a  
            physical medicine guideline, which will hopefully reduce  
            medical disputes and ensure that injured workers receive the  
            occupational therapy and physical therapy they require to  
            return to work.

          5.  Prior Legislation  :

            SB 228 (Alarcon), Chapter 639, Statutes of 2003, required  
            employers to implement a utilization review process, as well  
            as required the administrative director to create the MTUS.


          


          SUPPORT
          
          California Professional Firefighters (Sponsor)
          California Labor Federation, AFL-CIO









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          OPPOSITION
          None on file. 



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