Fourth Quarter 2018
By: Bridget A. Zeier
Question: Under what circumstances do you recommend a Utilization Review (UR) or an Independent Medical Examination (IME) in an otherwise compensable claim?
Short Answer: In Indiana for a compensable claim, we do not recommend using utilization review as it is not recognized by the Board as a basis for denying treatment. As the employer chooses the treating doctor in Indiana, we caution obtaining a second opinion IME out of concerns that it will appear that the employer is “doctor shopping.”
Utilization Review (UR)
The Indiana Worker’s Compensation Board has made it clear that they do not believe that utilization review (UR) is proper in determining whether medical treatment is appropriate. Therefore, it should not be used as a basis to deny treatment.
However, new legislation passed that is effective on January 1, 2019, indicates that it may be appropriate to use UR to deny certain opioid prescriptions. Indiana has adopted the Drug Formulary, which can be accessed for free at https://www.odgbymcg.com/state-formulary. This Drug Formulary includes all of the most popularly prescribed drugs in worker’s compensation and designates them as a “Y” or “N” drug. “N” Drugs are listed in the ODG Appendix A. Under this new law, if an authorized medical provider prescribes medication that is a non-referred drug, also known as a “N” drug, and the injured worker wants the employer/carrier, or “Payer,” to pay for the drug, the Payer must approve the prescription. If the N drug is not approved, the injured worker can still fill the prescription, but will have to pay for it out of pocket.
If a doctor prescribes an “N” drug, the employer can send the request to an accredited UR/URAC Worker’s Compensation Utilization Management Certification or a Worker’s Compensation Pharmacy Benefit Management Certification for review and notify the prescriber and the injured worker of initial denial and Review. The notice should be in writing. Within 5 days of receiving the prescription request, the employer must notify the employee and the prescribing physician whether the prescription is approved or denied. If notice is not given within 5 days, it is considered approved. The “N” drug cannot be denied based on lack of information from the prescribing physician. Rather, questions should be directed to the physician and the time frame set out in IC 22-3-3-4.7(e)(2)/22-3-7-17.6(e)(2) shall not run until sufficient answers are received. (5 day clock doesn’t start to run until additional information is received from treating doctor). If the UR denies the “N” drug, you can deny the prescription. However, the claimant will then have the ability to request an emergency hearing with the Board to appeal the denial and the Hearing Member will have the final say as to whether the prescription must be authorized.
Approval of a prescription for an “N” drug is only effective for that single prescription order. If the medical provider wishes to prescribe the same “N” drug again for the same injured worker, the same request and review process is necessary with additional support. There is a Grandfathering provision in IC 22-3-3-4.7(c)/22-3-7-17.6(c), however, it does not apply to prescriptions of “N” drugs prescribed after July 1, 2018. An appeal will be necessary for such prescriptions after January 1, 2019.
As this does not go into effect until January 1, 2019, we do not know the impact it will have on claims. If the Board overrides denials by UR routinely, this portion of the Act may turn out to be a costly addition for employers/carriers who will pay for the UR and then litigating the appeals.
Independent Medical Examination (IME)
Pursuant to I.C. 22-3-3-4, the employer chooses the treating provider for the injured worker. When an employer wants to obtain a second opinion IME, the Board often looks at it as “doctor shopping.” However, there are times when a second opinion is warranted and our Indiana team is happy to discuss with you specific cases to determine whether a second opinion may be warranted.
Since the employer does choose the treating the provider, the only true “IMEs” are ordered by the Worker’s Compensation Board. There are two instances where IMEs are ordered by the Board. The first is pursuant to I.C. 22-3-3-7(c). This IME is triggered when TTD benefits are terminated and the employee disagrees with the termination. When TTD benefits are terminated, and State Form 38911 is filed, the employee has 7 days upon receipt of Form 38911 to notify the Board in writing of his/her disagreement and request for an IME. This IME cannot be administratively granted by the Board when the employee has returned to work. The IME will only address the issue of maximum medical improvement and whether additional treatment is needed for the accepted body parts. It does not address PPI. The employer must pay for the IME. When this IME is granted, the employer must pay an additional 2 weeks of TTD benefits when the IME is granted as well as mileage for the appointment. If the IME finds that plaintiff is not at MMI, the 2 week advance covers the first two weeks of additional disability – dating back to the termination of TTD. If the employee is at MMI, the two weeks of TTD benefits are taken as a credit at the time of settlement.
The second type of IME that may be ordered by the Board is pursuant to I.C. 22-3-4-11. This IME can be granted upon application of either party or by the Board’s own motion. A reasonable physician fee and traveling expenses are paid by the State. The 2 additional weeks of TTD are not owed under this Section. This type of IME is rarely used.
We have seen a rise in requests from employees and their counsel for an IME in situations where the employee is placed at MMI but no 38911 was ever filed as no TTD had been paid. We routinely object to these requests as an IME is not proper in these situations. The employee is allowed to go out and obtain an alternative opinion at their own expense. When such motions for an IME are filed, it is up to the individual hearing member whether he/she will order the IME.
Practice Tip: Choose your treating doctor wisely for Indiana claims. If you need a recommendation for a doctor in Indiana, please contact one of our Indiana attorneys.