CMS Considering IMR Determinations More Favorably

CMS, Medicare Set-Aside Blog, Medicare Set-Asides, State Regulations on February 5, 2016
Posted by Jean S. Goldstein, JD, CMSP

An interesting and exciting turn of events has occurred within the last week, and we are pleased to report that we have begun to notice a change in the manner by which CMS is considering Independent Medical Review determinations (IMRs).  Over the last two years, MEDVAL has played an instrumental role in assisting in educating the reviewers at the CMS Review Contractor and San Francisco CMS Regional Office about the utilization review and IMR processes in California.  Workers’ compensation reform SB 863, was first introduced in California in 2012, and initiated fundamental changes in the workers’ compensation system in order to address the largest cost drivers in workers’ compensation claims, medical treatment costs. The IMR review process was implemented with the intention of making the system more efficient, reducing unnecessary legal recourse based upon disputes about treatment, while also helping to reduce costs drivers. The bill took effect on January 1, 2013, requiring that as of July 1, 2013, all medical treatment disputes for all dates of injury were to be resolved by physicians through the IMR process rather than the court system.  In California, a request for medical treatment within the workers’ compensation system must go through a utilization review process to determine whether it is medically necessary.  If the utilization review denies, delays, or modifies the physician’s request for medical treatment because the treatment is not medically necessary, the IMR process then comes into play, if requested by an employee.  An independent medical review organization then conducts a review of the case and the medical information at the heart of the dispute.  The decision issued is an IMR, and is deemed by California Code to be binding.  Unfortunately, as we have been advising our clients, over the last two years, CMS has not consistently been responsive to the IMR documentation provided with a Medicare Set Aside Allocation, often reverting back to their usual customary practice of relying on the opinions and recommendations of primary treating physicians, despite the binding nature of the IMR.

Over the last two years, we have advocated rigorously with respect to CMS’ interpretation of IMR determinations, often submitting requests for re-review of approved Medicare Set Side Allocations, if CMS failed to consider the IMR documentation provided.   In doing so, we have asserted the well-defined and significant nature for which the IMR determination process was created.  We have further contended that in many cases, CMS was in fact allocating for treatment for which a carrier/payer would not otherwise be obligated under state law to fund.  Moreover, we have directed CMS to the very language that makes the IMR determination binding, specifically, as outlined in California Labor Code, 4610.6(i),

 “[i]n no event shall a workers’ compensation administration law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”

While, an IMR determination can be appealed within 35 days of mailing, the grounds for an appeal are somewhat limited and are based on the standard of clear and convincing evidence that:

The administrative director has acted without or in excess of the administrative director’s powers;

The determination of the administrative director was procured by fraud;

The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5;

The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color or disability; and

The determination was the result of plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted…and not a matter that is subject to expert opinion.

California Labor Code 4610.6(h).

Despite providing CMS with the compelling statutory language, and confirmation that an IMR was not appealed, CMS still often refused to apply the IMR determination, and included future medical care that was very subject of the IMR, which documented that such treatment was deemed medically unnecessary.  In doing so, CMS often reasoned that absent a judicial determination, the IMR findings would not be applied.  Many of our clients were then faced with the decision of not settling their claims based on inclusion of the unnecessary medical treatment, or the decision to obtain a court order specifically addressing the unnecessary medical treatment.  As such, what was once meant to be a quick non-judicial way to resolve disputes about medical treatment was becoming an arduous, drawn out process resulting in no resolution of the claim in settlements involving Medicare Set Asides.

Just recently, we have observed a trend which appears to indicate that CMS has begun to apply deference to IMR determinations.  This is very exciting trend, as it appears that both the San Francisco CMS Regional Office and the CMS Review Contractor have begun to understand the nature and purpose of IMR determinations.  As such, we will continue to apply and utilize IMR determinations within our MSA in order to obtain a favorable outcome for our clients.  We also have some tips to ensure continued success with respect to IMRs, while we continue to monitor this emerging trend:

  • Provide all IMR determinations with the MSA referral, if possible.

If a utilization review is pending, or in the process, please let us know, and we will be able to advise of the next best possible steps with respect to preparing the MSA, and possibly submitting the MSA to CMS in the near future.

  • We would also suggest waiting until the 35 day IMR appeal period has passed to ensure that no appeal has been made, and being further able to document this to CMS.

Note, of recently, CMS appears be responding favorably to IMRs, whether or not an appeal was filed.  However, because CMS has only recently begun to respond more favorably to IMRs, we would suggest erring on the side of caution, during this emerging trend period.

  • Payments for medical treatment, which is the subject of the IMR, should cease.

Again, CMS appears to only be concerned with the actual IMR, and not whether medical treatment has been paid or whether recommendations for the treatment has been made after the IMR determination date.  While, we continue to monitor CMS’ response to cases with IMR determinations, we would suggest not paying for the treatment which is the basis of the IMR.  If continuing payments were made for the item(s) in question, our team will be in touch with specific questions and concerns, based upon current CMS trends.

Overall, based on this new trend, CMS appears to be considering IMRs more favorably and applying the determinations to CMS’ recommended allocations.  We will continue to monitor this trend, and report back on any inconsistences.  However, we are thrilled at the prospect that CMS is properly and justly applying IMRs, such that our clients will be more likely to achieve a favorable outcome and resolution to their claims.