Utilization Review time frames are well known, yet easily misunderstood. It is critical for employers, insurances companies, and defense attorneys to understand the technical nature of the Utilization Review time frames so that proper denials can be issued for treatment. An untimely Utilization Review decision could result in authorization of treatment that would have otherwise been denied had it not been for the untimely Utilization Review decision.
Date of “Receipt” of DWC Form RFA:
According to California Code of Regulations, section 9792.9.1 and Labor Code section 4610(g)(1), Utilization Review has five (5) business days to issue a decision. The time frame for issuing a decision begins when the DWC Form RFA is “received”. The RFA is considered received five (5) days after it is deposited in the mail. It is important to note that an RFA that is sent via facsimile or electronic mail will not be considered to be “received” unless it is sent prior to 5:30 P.M. Pacific Time. This means that an RFA that was faxed, for example, on Monday, January 1, 2016 at 6:00 P.M. was “received” on Tuesday, January 2, 2016. Once the date the RFA was received is determined in accordance with California Code of Regulations, section 9792.9.1, the next step is to accurately count the five (5) business days thereafter.
Counting to Five with Business Days:
California Code of Regulations, section 9792.9.1(c)(1) specifies that the first day in counting any time frames requirements for Utilization Review starts on the day after receipt of the RFA form. Therefore, in the example above the first day for counting the five (5) day time frame would begin on Wednesday, January 3, 2016, as this would be the next business day after receipt. There is one more factor to consider even after the date of receipt of the RFA and the first counting day are determined, the difference between a business day and a calendar day. A business day according to California Civil Code section 7 and 9 are weekdays, not including holidays. A calendar day is any day on the calendar. To summarize, using the example above: the RFA would be “received” on Tuesday, January 2, 2016, since it was faxed after 5:30 P.M. on Monday, January 1, 2016. Therefore, the first counting would be the next business day of Wednesday, January 3, 2016, making the Utilization Review decision due on or before Tuesday, January 9, 2016, as this would be five business days after the RFA was received.
Almost all rules have exceptions, and the time frames for Utilization Review are no different. There are situations in which an expedited decision is required, as well as extensions in order to get information reasonably necessary to make the decision. According to California Code of Regulations, section 9792.9.1(c)(4) when an expedited review is requested the decision to modify, deny, or delay may not exceed 72 hours after the information necessary to make the decision is received. When the decision is required within hours, the rule above regarding the first counting day being the next business day after receipt of the RFA does not apply. The time frame would literally be counted in hours from the time the RFA was received according to California Code of Regulations, section 9792.9.1(c)(1). In order to rebut a need for an expedited review period requested by a physician as unreasonable, the defense would need to show that there was not a serious or imminent threat to the injured worker’s life or health.
The important extension to remember for the Utilization Review time frames can be found in California Code of Regulations, section 9792.9.1(f)(1) and Labor Code section 4610. This section allows for additional review time when there is a request for additional information from the physician in order to make the decision. Should additional information be requested from the physician (within 5 business days of receipt of the RFA) then the time frame for responding to the RFA can be extended to 5 business days from the receipt of the necessary information, but no later than 14 days from the receipt of the RFA. The fourteen (14) day requirement in this section seems to infer that it may not mean business days, so in order to be on the safe side the fourteen days should be considered calendar days for this exception, with counting starting on the next business day from the receipt of the RFA.
Time to Relay Utilization Review Decision:
Furthermore, any Utilization Review decision must be communicated to the physician within 24 hours according to California Code of Regulations, section 9792.9.1(e). In a recent note worthy split panel decision Michael Green v. Elle Placement dba Golden Gate Staffing & Lumbermen’s Underwriting Alliance, 2016 Cal. Wrk. Comp. P.D. LEXIS, the court found that a Utilization Review decision was timely even though the decision was communicated after 5:30 P.M. on the fifth business day after the RFA was received. The Applicant’s Attorney attempted to use the facsimile date of receipt rules to argue that the defendant’s denial was untimely since it was sent on the fifth business day after 5:30 P.M, which the court rejected. The court found that the Utilization Review denial was timely as it was sent within 24 hours of the decision that was made within five (5) business days of receipt of the RFA, despite that it was after 5:30 P.M. on the fifth business day. The court found that there was no evidence that the decision was not made within the fifth business day and simply relayed after 5:30 P.M., which is still within the 24 hour period, making the Utilization Review timely.
If a Utilization Review denial is untimely, the Workers’ Compensation Appeals Board can decide treatment disputes based on substantial evidence according to Jose Dubon v. World Restoration Inc. State Compensation Insurance Fund, 79 Cal. Comp. Cases 1298. Should the Utilization Review be timely the proper method to resolve disputes is through the Independent Medical Review process. (Ibid.) However, it is not uncommon to see an Applicant’s Attorney request an Expedited Hearing for a timely Utilization Review decision, which is improper when the Utilization Review is timely according to Labor Code sections 4610.5 and 4610.6, which outline the Independent Medical Review Process.