BILL ANALYSIS Ó SB 1160 Page 1 Date of Hearing: June 22, 2016 ASSEMBLY COMMITTEE ON INSURANCE Tom Daly, Chair SB 1160 (Mendoza) - As Amended June 20, 2016 SENATE VOTE: 26-12 SUBJECT: Workers' compensation: utilization review SUMMARY: Requires utilization review entities to be certified; increases penalties for the failure to comply with data filing requirements; and modifies a statutory treatment guideline. Specifically, this bill: 1)Requires a utilization review (UR) entity to be accredited by July 1, 2018, and every 3 years thereafter. 2)Authorizes the Administrative Director (AD) of the Division of Workers' Compensation (DWC) to require more frequent re-accreditation if he or she deems it necessary. 3)Specifies criteria that the accrediting organization will use to evaluate UR processes. 4)Requires the AD to adopt rules governing the organization that SB 1160 Page 2 will provide the acreditation, and authorizes the AD to expand the criteria that the organization will apply. 5)Modifies the 24-visit cap on chiropractic, physical therapy and occupational therapy visits, by specifying that in cases involving physical medicine rehabilitative services to the extent the cap is inconsistent with evidence-based treatment guidelines to be adopted by the AD, the guideline adopted by the AD prevails. 6)Requires the AD to adopt regulations designed to create a more efficient workers' compensation claim information system, including specifying the data elements to be collected. 7)Requires the AD to publicly post the identities of those who fail to submit the claims data as required by law. 8)Establishes enhanced penalties for the failure to comply with workers' compensation claim data filing requirements, as follows: a) Increases the basic fine for failure to file appropriate data from up to $5000 to up to $10,000. b) Establishes enhanced penalties of between $15,000 and $45,000 for mandated data filers that have incurred more than $8000 in fines in successive years. EXISTING LAW: SB 1160 Page 3 1)Establishes a comprehensive system to provide benefits, including medical treatment, to employees who are injured or suffer conditions that arise out of or in the course of employment. 2)Requires treatment to be evidence-based, as detailed in a Medical Treatment Utilization Schedule adopted and maintained by the Administrative Director AD. 3)Limits the number of chiropractic, physical therapy, or occupational therapy visits to no more than 24. 4)Provides for a Workers' Compensation Information System (WCIS), and mandates that specified claims data be filed by entities that pay workers' compensation claims. 5)Authorizes the AD to impose a fine of up to $5000 per year for a failure of a required filer to comply with the law. 6)Requires every employer or insurer to maintain a UR process, which is the mechanism for the employer or insurer to review, delay, modify or deny treatment requested by a treating medical provider. FISCAL EFFECT: According to the Senate Appropriations Committee, the DWC indicated, with respect to a much broader version of this bill, that it would incur first-year costs ranging from $932,000 to $1.8 million (special fund) to administer the bill. Ongoing costs would likely range from $900,000 to $1.2 million annually. Additionally, the bill would likely result in increased penalty revenue, the magnitude of which is unknown. SB 1160 Page 4 COMMENTS: 1)Purpose. According to the author, 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. 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 only 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. 2)WCIS. It has recently become apparent that some entities that are required to submit data to WCIS have simply decided to pay the annual $5000 fine and ignore filing requirements. WCIS is SB 1160 Page 5 an important data base because it allows researchers to sort and analyze claim data in the ongoing effort to improve efficiency the workers' compensation system, ensure better care for injured workers, and control costs for employers. The failure to submit the required data can create a substantial impediment to that ongoing work. This is why the bill proposes increased and, for ongoing recalcitrant employers, stepped up penalties. 3)Physical medicine. The bill proposes a change to the 24-visit cap on physical medicine. There is already an exception to the cap for post-surgical care. In that case, the AD has adopted specific treatment guidelines that control over the hard caps in cases where the guidelines apply. The bill proposes a similar approach for a broader scope of rehabilitation treatment. The caps would remain in place, but be supplanted only to the extent that an evidence-based treatment guideline adopted by the AD is applicable. 4)Opposition. The bill has substantial opposition. In response, the author has recently made substantial amendments to the bill, deleting several provisions of the greatest concern to the opposition. While it may not be true for every opponent, a number of the opposing organizations have indicated that even though they cannot change their position, they are comfortable working with the author as the bill moves to the Assembly Floor. REGISTERED SUPPORT / OPPOSITION: Support SB 1160 Page 6 California Labor Federation California Professional Firefighters (CPF) Small Business California Opposition California Chamber of Commerce Acclamation Insurance Management Services Allied Managed Care ALPHA Fund American Insurance Fund Association of California Healthcare Districts Association of California Insurance Companies California Asian Pacific Chamber of Commerce SB 1160 Page 7 California Association of Joint Powers Authorities California Coalition on Workers' Compensation California Farm Bureau Federation California Grocers Association California League of Food Processors California Manufacturer and Technology Association California Professional Association of Specialty Contractors California Restaurant Association California Retailers Association California State Association of Counties California Chamber of Commerce Desert Hot Springs Chamber of Commerce El Dorado County Chamber of Commerce SB 1160 Page 8 Employers Group Greater Conejo Valley Chamber of Commerce Greater Fresno Area Chamber of Commerce Grimmway Enterprises League of California Cities Metro Risk Management National Association of Mutual Insurance Companies National Federation of Independent Business North Orange County Chamber of Commerce Safeway, Inc. (Albertsons Companies) Santa Maria Chamber of Commerce Visitor & Convention Bureau Schools Insurance Authority Sedgwick Claims Management Services, Inc. Southwest California Legislative Council SB 1160 Page 9 The Chamber of the Santa Barbara Region The Cheesecake Factory UPS Valley Industry & Commerce Association Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086