Rule 16 Review vs Utilization Review

By: Attorney Alissa Peashka

Under the Colorado Workers’ Compensation Act, insurers and employers (Respondents) are required to provide medical treatment to cure and relieve an employee from the effects of a work injury. Does this mean Respondents are liable for all treatment recommended by authorized treating providers (ATPs)? The answer is no. Respondents only are liable for treatment that is reasonable, necessary, and related to the work injury.

Often, treatment requests go through an insurer or TPA’s internal Utilization Review process. There, physicians or nurses recommend approval or denial based on whether the treatment is medically necessary. (They also may discuss whether it is reasonable.) UR does not determine if the employee’s need for the treatment is related to the work injury. Relatedness is important when the employee has a prior injury involving the same body part.

Let’s imagine that, in 2015, the employee has a successful right knee surgery. By 2017, his symptoms return. The surgeon tells the employee that he really needs a total knee replacement right now, but they can try to postpone surgery through injections; the employee agrees. In 2018, the employee sustains a compensable work injury to the same knee. An ATP refers the employee to an orthopedist, who recommends a total knee replacement and submits a proper Rule 16 request (with all required information and documentation) for prior authorization. The insurer has 7 business days from the date it received the request to approve or deny it. The insurer can choose one of two different strategies to address the request:

Strategy #1: The insurer automatically sends the request through Utilization Review, just like any other treatment request. The request goes to an occupational medicine physician who is licensed to practice in Colorado (among other states) and is neither Level I nor Level II accredited with the Colorado Division of Workers’ Compensation. On the day of the deadline, the insurer receives the physician’s written report, which states:
         – Scenario A: Surprise!: Surgery is medically necessary. Relatedness is not addressed; that’s not UR’s job. Now what? There’s no time left to obtain a supplemental report addressing relatedness, and surgery can’t be denied only on relatedness without a supporting medical opinion. The insurer may have to authorize surgery.
         – Scenario B: Surgery is not medically necessary: Great! The insurer mails the denial letter and report to the requesting physician and opposing counsel. Opposing counsel notices that the physician (i) is an occupational medicine physician, not an orthopedist, and (ii) is neither Level I nor Level II accredited. Opposing counsel files an Application for Hearing asserting that the denial is invalid. A judge likely would find that the surgery was not properly denied within the 7 business days, so surgery is authorized by default.

Strategy #2: The insurer quickly retains an expert (a Level I- or II-accredited orthopedist, just like the requesting provider) to review the medical records and issue a written report within the 7-business-day deadline. The insurer sends the expert pre-injury records of the prior surgery and asks the expert to address relatedness. On the day of the deadline, the insurer receives the expert’s written report opining that surgery is reasonable and necessary, but the need for the surgery is not related to the work injury. The insurer sends the report to its attorney, who drafts a proper written Rule 16 denial letter and sends it, with the expert’s report, to the requesting provider and opposing counsel.

What’s the lesson? If you are concerned about whether the need for treatment is related to the work injury, the best practice is to choose a Rule 16 records review or an IME instead of relying on Utilization Review. It potentially may cost more, but it may afford greater protection from litigation. Moreover, promptly contacting an attorney to assist with the denial process will help ensure that the denial letter includes all the requirements under Rule 16 and that the denial is valid.

Do you have further questions or concerns? Please contact the attorneys at Thomas Law Firm, LLC, and we will be happy to help.

Maria DiManna

About Maria DiManna