MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT!

Transcription

1 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! Presented and Prepared by: Toney J. Tomaso Urbana, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen F-1

2 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! I. A HISTORY OF UTILIZATION REVIEW IN ILLINOIS... F-3 II. HOW DOES UTILIZATION REVIEW WORK... F-3 III. WHAT DOES THE NEW UTILIZATION REVIEW STATUTE SAY:... F-5 IV VS. 2011, WHAT ARE THE CHANGES:... F-9 V. HOW DOES THE NEW STATUTE WORK:... F-9 VI. VII. VIII. IX. THE CHAIRMAN S INTERPRETATION OF THE 2011 CHANGES...F-10 WHO HAS THE BURDEN OF PROOF...F-11 CAN AN EMPLOYEE OBJECT TO MY UTILIZATION REVIEW REPORT...F-12 TO UR, OR NOT TO UR...F-13 X. DOES THIS MEAN NO MORE IME S...F-13 XI. PRACTICAL IMPLICATIONS WITH UTILIZATION REVIEW...F-14 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. F-2

3 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! I. A HISTORY OF UTILIZATION REVIEW IN ILLINOIS Historically speaking, the concept of Utilization Review is not new. However, it is still relatively new in the State of Illinois and to the Illinois Workers Compensation Act. It was introduced in the 2005 amendment to the Illinois Workers Compensation Act (820 ILCS 305/8.7). Between 2005 and 2011, there was a significant learning curve to the use of Utilization Review (U.R.), for practitioners and insurance adjusters working within the State of Illinois. Many states outside of Illinois have been using Utilization Review for quite some time. Therefore, some readers of this material will have much more experience and a greater depth of knowledge with regard to Utilization Review in comparison to their counterparts, who only practice within the boundaries of the State of Illinois. A Utilization Review is an extension of the controls placed upon fee schedules, which were put into place to deal with the issue of cost control for reasonable and necessary medical treatment. If you have one (a medical fee schedule) without the other (Utilization Review), then both will be completely ineffective. The ways around each would be easily achieved by medical providers and facilities. Let s turn to an example in order to illustrate the point. If the Medical Fee Schedule takes a $100 doctor visit and controls the cost based upon a reasonable scale whereinafter a fee schedule review is completed, the cost of that $100 visit is lowered to $50, one would assume that would protect the costs involved for purposes of standardized treatment. However, in order to effectuate this cost savings, Utilization Review needs to be coupled with the fee schedule reduction or else you lose the benefit of that cost control. Continuing on with our example, if a medical provider learns that their bill is going to be cut in half based upon the fee schedule, then they may combat this by requiring the patient to undergo two visits at $50 each. This would make up the monetary loss that the provider suffered as a result of the fee schedule reduction. This course of action by the provider would circumvent the system and eliminate any cost savings, the general purpose behind the fee schedule to begin with. Again, as noted above, having one without the other would defeat the purpose of having controls in place. II. HOW DOES UTILIZATION REVIEW WORK The Utilization Review process is governed by URAC (Utilization Review Accreditation Commission). Let s discuss how this process actually works. In a typical circumstance, a treating physician will render an opinion as to the need for treatment concerning an injured worker. You make the decision to move forward with a Utilization Review, and the process begins. A registered nurse hired through your third party vendor handling the Utilization Review process will review all pertinent medical records. Please be aware, the review can only contain medical records which the treating physician reviewed and had access to in determining whether or not this form of treatment would be reasonable and necessary. If the review takes place months or years later for a retrospective review, updated medical records cannot be utilized to render an opinion above and beyond what the original physician had access to at the time. You must F-3

4 review the materials from an equal footing to that which the treating physician had at the time they rendered an opinion. If the registered nurse agrees with the doctor s opinion regarding future treatment, then the Utilization Review process stops, the treatment as recommended is certified, and ultimately the injured worker will move forward with that treatment if that is their choice. If the registered nurse disagrees with this course of treatment, then the Utilization Review process continues. The next step is the review of the materials by a medical provider from the same specialty as the physician who rendered an opinion as to what treatment was reasonable and necessary. If the Utilization Review expert/physician agrees with the treatment, then the Utilization Review process ends and the treatment is certified. If that physician/expert disagrees with the treatment prescribed, then the Utilization Review process continues to the next step, which is the appeal process. The appeal process is an important step for Utilization Review purposes, and a step where clear communication is needed to obtain a valid and beneficial report. At this point, the treatment provider and the Utilization Review provider/expert must communicate, usually within a set amount of days, in order to discuss the proposed treatment and the non-certification of same. The specific case involving the injured worker is discussed and an agreement is to be reached between these two physicians as to what would be a reasonable course of treatment at this time for the patient. If no such agreement can be reached, then a third Utilization Review provider gets involved with the case by reviewing the pertinent materials and making a decision. Under URAC standards, the third reviewer s opinion is dispositive and the process will stop there. Once the appeal process is ended, you can then rely upon the opinions contained therein. The burden will shift to the employee and you can utilize the Utilization Review report to defend this case and argue what is reasonable and necessary treatment in favor of the employer. One of the key elements to a good Utilization Review process is communication. Communication is what allows for a clear understanding of the issues in question and ultimately will allow for a fair and equitable decision to be made. When you boil it down to its simplest terms, when you have more than one mind trying to identify what is best for a patient, it is always more helpful than just simply having one mind (or one physician) issuing an opinion on this subject. This does not always happen between the reviewing physician who is handling the Utilization Review process and the physician who is treating the employee. Many doctors do not like to be questioned regarding their treatment plan and recommendations for their patients. Their willingness to cooperate in the process is sometimes compromised by ego. Many physicians will admit, however, that URAC standards are universal and unless the specific facts of the individual cases being dealt with take the case and the employee s need for additional care and treatment outside the realm of normal, the URAC standards are reasonable. Utilization Review is a national standardized method of determining what is reasonable and necessary treatment, based upon a particular set of facts. One might say every set of facts is unique, but in workers compensation cases there are many patterns that have the same nucleus of common elements that help provide standards by which the Utilization Review process can F-4

5 be established and developed. Utilization Review was developed in order to create a set of standards that is nationally recognized in order to control the amount of treatment and testing conducted by the providers in any given situation. Going back once again to our example above, the Utilization Review process would be used in order to determine if the reasonable and necessary treatment for that patient can be provided in one treatment visit or would it be reasonable to allow an additional visit. If more than one visit is recommended, then a determination will be made as to how many visits would be reasonable. If we did not have Utilization Review to serve as the support mechanism behind our medical fee schedule, then we would not see any cost savings because the marketplace would simply allow the providers to schedule additional treatment and billing opportunities. The obvious question is, why would this be important? As has been discussed, the 2011 amendments were clearly driven by the costs associated with the workers compensation system that was in place in the State of Illinois. The voices of businesses, insurance companies, and the defense bar became extraordinarily loud and focused on how workers compensation costs were becoming intolerable and how it was negatively impacting the ability to run a business in the State of Illinois. There was ample proof that businesses were relocating outside of the State of Illinois in order to afford themselves the protections of more beneficial workers compensation laws and realize a monetary benefit for their companies. Although the statute defines what Utilization Review means, it might be helpful to think of Utilization Review as a way to determine what treatment is reasonable and necessary under the specific factual circumstances of your case. You can have Utilization Review conducted for treatment that has already taken place (retrospective) or for treatment that is being recommended by a treating physician (prospective). Therefore, if the facts of your case warrant questions as to the prior treatment, or plans for future treatment, set forth by a treating physician on behalf of an injured worker, then moving forward with Utilization Review is an appropriate course of action (and as will be discussed below, a necessary course of action). III. WHAT DOES THE NEW UTILIZATION REVIEW STATUTE SAY: Let s analyze the recent changes to the Utilization Review section of the new Act, which went into effect on September 1, The statute, 820 ILCS 305/8.7, reads as follows: Section 8.7. Utilization review programs. (a) As used in this Section: "Utilization review" means the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of nationally F-5

6 recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine based upon standards as provided in this Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment. (b) No person may conduct a utilization review program for workers' compensation services in this State unless once every 2 years the person registers the utilization review program with the Department of Insurance and certifies compliance with the Workers' Compensation Utilization Management standards or Health Utilization Management Standards of URAC sufficient to achieve URAC accreditation or submits evidence of accreditation by URAC for its Workers' Compensation Utilization Management Standards or Health Utilization Management Standards. Nothing in this Act shall be construed to require an employer or insurer or its subcontractors to become URAC accredited. (c) In addition, the Director of Insurance may certify alternative utilization review standards of national accreditation organizations or entities in order for plans to comply with this Section. Any alternative utilization review standards shall meet or exceed those standards required under subsection (b). (d) This registration shall include submission of all of the following information regarding utilization review program activities: (1) The name, address, and telephone number of the utilization review programs. (2) The organization and governing structure of the utilization review programs. (3) The number of lives for which utilization review is conducted by each utilization review program. (4) Hours of operation of each utilization review program. (5) Description of the grievance process for each utilization review program. (6) Number of covered lives for which utilization review was conducted for the previous calendar year for each utilization review program. (7) Written policies and procedures for protecting confidential information according to applicable State and federal laws for each utilization review program. (e) A utilization review program shall have written procedures to ensure that patient-specific information obtained during the process of utilization review will be: (1) kept confidential in accordance with applicable State and federal laws; and F-6

7 (2) shared only with the employee, the employee's designee, and the employee's health care provider, and those who are authorized by law to receive the information. Summary data shall not be considered confidential if it does not provide information to allow identification of individual patients or health care providers. Only a health care professional may make determinations regarding the medical necessity of health care services during the course of utilization review. When making retrospective reviews, utilization review programs shall base reviews solely on the medical information available to the attending physician or ordering provider at the time the health care services were provided. (f) If the Department of Insurance finds that a utilization review program is not in compliance with this Section, the Department shall issue a corrective action plan and allow a reasonable amount of time for compliance with the plan. If the utilization review program does not come into compliance, the Department may issue a cease and desist order. Before issuing a cease and desist order under this Section, the Department shall provide the utilization review program with a written notice of the reasons for the order and allow a reasonable amount of time to supply additional information demonstrating compliance with the requirements of this Section and to request a hearing. The hearing notice shall be sent by certified mail, return receipt requested, and the hearing shall be conducted in accordance with the Illinois Administrative Procedure Act. (g) A utilization review program subject to a corrective action may continue to conduct business until a final decision has been issued by the Department. (h) The Department of Insurance may by rule establish a registration fee for each person conducting a utilization review program. (i) Upon receipt of written notice that the employer or the employer's agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines. (1) The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer's agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome. (2) Written notice of utilization review decisions, including the clinical rationale for certification or non-certification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee. F-7

8 (3) An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section. (4) When a payment for medical services has been denied or not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of his or her injury. (5) The medical professional responsible for review in the final stage of utilization review or appeal must be available in this State for interview or deposition; or must be available for deposition by telephone, video conference, or other remote electronic means. A medical professional who works or resides in this State or outside of this State may comply with this requirement by making himself or herself available for an interview or deposition in person or by making himself or herself available by telephone, video conference, or other remote electronic means. The remote interview or deposition shall be conducted in a fair, open, and cost-effective manner. The expense of interview and the deposition method shall be paid by the employer. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party's expense; provided, however, that a party attending a deposition shall give written notice of that party's intention to appear at the deposition to all other parties within a reasonable time prior to the deposition. An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12. (j) When an employer denies payment of or refuses to authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program F-8

9 registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this Section and does not comply with all other requirements of this Section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act. The changes to this Section made by this amendatory Act of the 97th General Assembly apply only to health care services provided or proposed to be provided on or after September 1, (Source: P.A , eff ; , eff. 11/16/05; P.A , eff ) IV VS. 2011, WHAT ARE THE CHANGES: In comparing the original version of the Utilization Review section of the Act (amended November 26, 2005) to the most recent amendment, there are not significant changes to the actual wording of the statute. There is only one section which was substantively changed, and that is subsection (i). Therefore, our focus will turn to this section. We will discuss general concepts as it relates to everyday practice and procedure utilizing the power of Utilization Review. V. HOW DOES THE NEW STATUTE WORK: The medical provider, upon receiving written notification from the employer, employer s agent, or insurance carrier invoking the Utilization Review process, must submit to Utilization Review and follow accredited procedural guidelines including: Provider shall make reasonable efforts to provide timely and complete reports of clinical information; If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable or collectible by the provider or employee from the employer, the employer s agent, or the employee; The reporting obligations of these providers shall not be unreasonable or unduly burdensome; and Once a Utilization Review has been done and findings are made (certification or noncertification of treatment), said decisions, including the clinical rationale, shall be furnished to the provider and employee (it would also be our recommendation to provide these findings to the employee s attorney if he has counsel of record). F-9

10 VI. THE CHAIRMAN S INTERPRETATION OF THE 2011 CHANGES This next section is the most important aspect to the changes in Section 8.7(i)(3). The statute as it reads limits an employer from denying payment of medical services (rendered or proposed to be rendered) based upon an accredited Utilization Review opinion. Meaning, if you, the employer, are going to question whether the medical treatment as previously undertaken or proposed is unreasonable or unnecessary, you will need to have that proven through the use of the Utilization Review process. You can no longer simply rely upon an IME or records review opinion from a physician. The statute, when strictly interpreted, only allows for a Utilization Review to deny medical treatment. We recently met with Mitch Weisz, Chairman of the Illinois Workers Compensation Commission and several other attorneys to discuss the topic of Utilization Review. It was the Chairman s position that this statute should be strictly interpreted (and it is our understanding he has passed along this directive to his commissioners and arbitrators). He wants all interested parties, when reading this section of the statute, to understand Utilization Review should be the only vehicle by which an argument can be made as to whether a course of treatment, or prior course of treatment, is reasonable and necessary under the factual circumstances of an individual case. One must be wary of an employee s attorney using this as a gotcha situation during the course of handling a claim. Beware of the employee s attorney who has no objection to your IME/records review opinion report that renders favorable opinions to your position on what would be considered reasonable and necessary medical treatment. At the time of trial this same attorney may object to the foundation of those opinions, arguing that an accredited Utilization Review was never conducted and therefore, any opinions regarding reasonable and necessary medical treatment by any employer-retained expert should be stricken. The arbitrators and/or commissioners, if they follow the instructions of the Chairman correctly, would have to sustain such an objection made by the employee s attorney, and strike the expert opinions the employer is attempting to rely upon as previously disclosed. This is exactly the situation any good employer s attorney would want to avoid, and this is an obvious pitfall to be cognizant and aware of in the future. Based upon this interpretation of the statute, one might conclude this is a major victory for the third parties which conduct Utilization Reviews. Generally speaking, when conducting independent medical examinations pursuant to Section 12 of the Act, one would typically spend $1,000 to $2,000 on an expert opinion, depending upon the physician who was asked to perform the work on behalf of the employer. If the purpose of your IME/records review was to make a determination regarding what would be considered reasonable and necessary medical treatment, then you should properly be seeking a Utilization Review opinion. Utilization Review opinions can be provided for a fee ranging between $300 and $600. This range will depend upon the extent of the medical records necessary to review. By and large, Utilization Review opinions can be obtained rather quickly in comparison to their IME counter-parts. As we all know, setting up an IME with a highly regarded physician, coordinating that appointment with the employee, and then actually getting your hands on that report can take anywhere between F-10

11 two and three months, if not longer, under normal circumstances. Utilization Review reports can typically be obtained (assuming the medical reports are available for review) within a couple of weeks. You can see how monies, which would typically go into an IME specialist s pocket for purposes of having an expert report obtained, are being taken out of that pocket and placed squarely into the coffers of third party Utilization Review experts. VII. WHO HAS THE BURDEN OF PROOF The other significant change which came about as a result of the recent amendments was the burden of proof for the Utilization Review reports. If a payment for medical services has been denied, or a request for medical treatment non-certified by an employer following a Utilization Review, then the burden of proof will shift to the employee to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the Utilization Review... is reasonably required to cure or relieve the effects of his or her injury. 820 ILCS 305/8.7(i)(4). Meaning, the burden shifts to the employee once the employer provides a Utilization Review report which denies the treatment is reasonable and necessary. At this point, it is up to the employee and his treatment provider or physician to establish why his specific factual circumstance is outside the realm of normal, therefore making the additional care and treatment undertaken by the provider (or proposed by the provider) reasonable and necessary. This burden shift is exactly what the employers bargained for during the course of the negotiations involving the most recent amendments to the Act. Previously, there was no such burden shifting when a valid Utilization Review report was obtained and disclosed by the employer. At our seminar in 2011, we discussed the latest results and case law concerning how effective Utilization Review had been for the employer. A majority of the cases clearly showed the arbitrator and/or commissioner considered the Utilization Review report, but disregarded it in favor of the treating physician s opinion as to what would be reasonable and necessary treatment. There were a select few cases wherein the Utilization Review report was heralded as the defining opinion as to what was reasonable and necessary, but those came in the form of cases dealing with chiropractic care, acupuncture, and physical therapy. The reality of Utilization Review following the 2005 amendment was that it was playing second fiddle to the treating physician s opinions regarding what treatment was required for the employee. Through the bargaining process, which brought about the 2011 amendments, teeth were put into the Utilization Review process. That comes in the form of the burden shifting the employee being required to overcome such a burden when a valid report is obtained and disclosed following a Utilization Review process. This beneficial change is something the employer should take advantage of at every turn. F-11

12 VIII. CAN AN EMPLOYEE OBJECT TO MY UTILIZATION REVIEW REPORT Once a Utilization Review report is disclosed which is favorable to the employer s position, it is still part of the discovery process in a workers compensation case. As you have probably heard many times before, there is no formal discovery process in workers compensation in the State of Illinois. However, the parties do have subpoena power and can collect medical records. Also, if an expert opinion is rendered regarding key issues such as accident, medical causal connection, or reasonable and necessary medical treatment, then a party has the right to object to that expert opinion in order to force the expert who rendered such an opinion to undergo cross examination at an evidence deposition. In the case of a Utilization Review report being disclosed, the employee s attorney has the right to object to the foundation of that report, thereby necessitating the evidence deposition of the physician who reviewed the medical evidence and issued the Utilization Review report. Pursuant to the new statutory language, the medical professional who was responsible for reviewing the records and issuing a Utilization Review opinion must be made available in the State of Illinois for a deposition (either in person, by telephone, videoconferencing, or other remote electronic means). This expense will be borne by the employer. Therefore, when you begin setting up the process of having a Utilization Review report/opinion obtained, you will want to identify who will be the reviewing physician, where their office is located, and confirm that they will be made available within the State of Illinois pursuant to the terms of the statute. At the very least, you need to make this defense expert aware of what the statute states and what obligations he will be forced to comply with if an objection to the foundation is made by the employee s attorney. If that Utilization Review expert will not travel to the State of Illinois, nor will they agree to conduct a deposition by phone or other electronic means, then you will not want to retain their services for that project or in the future. This is something that you must be wary of as you continue to use Utilization Reviews to protect your clients. An accredited Utilization Review report which is relied upon by an employer at the time of trial in a workers compensation hearing is one piece of evidence in an otherwise giant puzzle which needs to be put together by an arbitrator after all the evidence is heard. Meaning, the Utilization Review report will be considered along with all other admissible pieces of evidence in determining the reasonableness and necessity of medical bills and/or treatment. Nothing within Section 8.7 diminishes the employee s right to reasonable and necessary medical treatment or his choice of health care pursuant to Section 8(a) of the Act. If an employer reasonably relies upon a Utilization Review report from an accredited medical expert, and the necessary protocols and procedures are followed by that medical expert, then there is a rebuttable presumption in favor of the employer, regarding the reasonableness and necessity of the treatment, protecting the employer from penalty petitions. If an employee files a penalty petition pursuant to Section 19(k) of the Act, wherein they claim the employer was unreasonable or vexatious in their delay of payment of benefits, you will be protected from same if you have a Utilization Review report to rely upon in your defense against authorizing or payment of said medical benefits. The simple monetary advantage of spending at or around $500 on a Utilization Review report becomes readily apparent when it can be used as a shield to F-12

13 protect your client from a 19(k) penalty petition, which can become quite costly even if you have a reasonable basis for disputing ongoing medical treatment. These penalty petitions, which employee s attorneys are so fond of filing as a way of rattling their swords, can be disarmed through the use of a Utilization Review report. Again, as noted above, if the arbitrators and commissioners follow the instructions of Chairman Weisz wherein Utilization Review is the only means by which an employer can dispute reasonable and necessary medical treatment, then failing to do so may in turn subject your client, the employer, to Section 19(k) penalties. IX. TO UR, OR NOT TO UR Under what circumstances should you decide to pursue and obtain a Utilization Review report? Some typical questions which you would want to have addressed, based upon the factual circumstances of your case, would include (but not be limited to) the following: How much physical therapy is appropriate, and how much would be considered excessive? What is a reasonable amount of chiropractic care/treatment when dealing with adjustments? Do the patient s symptoms warrant MRI testing at this time? Are epidural steroid injections reasonable and necessary at this time? Is the patient a surgical case at this time, or should conservative measures be continued? Here are some situations you deal with on a regular basis where Utilization Review would not be reasonable or necessary for defense handling purposes: Is the injured party s current medical condition causally related to the alleged accident? Is this a compensable workers compensation claim? Can the injured worker return to the work place, and if so, should that worker be placed on any restrictions? What is the diagnosis and prognosis for the injured worker? X. DOES THIS MEAN NO MORE IME S It may be helpful once you have your Utilization Review report in place to also have your IME expert take it (Utilization Review report) into consideration during their review of the medical records. You may have more than one defense to present during the course of the litigated claim. Therefore, your Utilization Review report can be relied upon by other experts and your IME specialist can add to the credibility of your Utilization Review physician who reviewed the records by agreeing with the findings and adding some additional weight and credibility to those opinions. This would be characterized as a belts and suspenders approach, but as we all F-13

14 know, this never hurts in increasing our chances of prevailing with our defenses. You may want to take a conservative approach when asking your IME expert s opinion as to whether or not he agrees with the Utilization Review report findings. Meaning, if you already have a beneficial Utilization Review report, you do not want to potentially circumvent it by having your IME expert provide contradictory findings. Therefore, it might be advisable to request a records review opinion from your IME expert. Then, if there is a contradiction in findings on the subject matter which was dealt with in the Utilization Review report, you do not have an obligation to disclose your records review opinion. It is only at the time you receive a consistent finding from your IME expert conducting the records review that you can disclose it in order to lend credence and support to your Utilization Review report. In that same vein, if you are dealing with a case today wherein you have a beneficial IME opinion which outlines what would be reasonable and necessary medical treatment that clearly contradicts what the employee s treating physician is doing (or has done), it would be our recommendation to get a Utilization Review report to comply with the statute as noted above and also bolster the defense you have asserted and established based upon the IME opinions. XI. PRACTICAL IMPLICATIONS WITH UTILIZATION REVIEW Although a Utilization Review report is not dispositive in and of itself, the obvious benefit of obtaining such a report is that the burden will shift in favor of the employer. As noted above, that burden shift places a rather heavy burden on the employee to obtain an opinion report from his treating physician which asserts why the Utilization Review report de-certified the need for additional treatment. Do not underestimate the power of shifting the burden. For too many years that burden has clearly been on the employer. Now, with the changes in the 2011 amendment, we have some teeth that are finally going to allow the arbitrators and commissioners to rule in favor of the employers regarding what should be considered reasonable and necessary treatment. This should be one of your first lines of defense when dealing with this issue. Although we know our Utilization Review expert must make himself available in the State of Illinois for a deposition (either in person or by phone), this in and of itself should not be detrimental or a reason why you avoid obtaining such a report. It is becoming commonplace for doctors to have their evidence depositions conducted by phone or other electronic means. Employees attorneys may attempt to push you into not obtaining and using Utilization Review reports because they object on a regular basis to these reports. Do not be adversely affected by this obvious tactic to force you into using this defense mechanism less and less as time goes on. Do not allow them to bully you into giving up this statutory right, which is of excellent benefit to the employers. A great deal of time and effort was placed into negotiating this aspect of the Act and to avoid using it because some employee s attorney is going to force you to take a deposition is not a good reason to avoid using this statute. We need to establish right here and right now, the use of Utilization Review and its importance in defending claims so that for today and tomorrow, this vehicle, in order to call into question reasonable and necessary medical F-14

15 treatment, is something available to you and accepted by the arbitrators and commissioners on a regular basis. We are on the forefront of educating arbitrators and commissioners in the State of Illinois as to the usefulness of a Utilization Review and the URAC standards by which they are measured. This is an excellent opportunity to explain to the arbitrators and commissioners precisely what these standards are, why they have been in place for so many years in other states, and the obvious benefit these standardized practices have as they are applied in our everyday handling of claims in the State of Illinois. If we simply ignore this opportunity, then the arbitrators and commissioners will simply go on conducting business as usual and allowing the treating physician to dictate what is reasonable and necessary for the injured worker. A better plan of action is to call into question this treatment plan if it deviates from the normal course. If you are dealing with an exceptional case wherein a deviation from the normal course is understandable, then the process will allow for such a circumstance. However, do not let your claimant take advantage of you and your client. Stand your ground; use the statute which was brought about and negotiated for to your benefit. I believe it is essential that we begin the process of educating these arbitrators and commissioners as to why these standardized procedures are in place through URAC in order to show why the Utilization Review experts are even more credible than their treating physician counterparts. Now is the time to seize the day and take advantage of the statutory amendment providing us with a powerful tool in the form of Utilization Review. F-15

16 Toney J. Tomaso - Partner Toney is a partner in the Urbana office who concentrates his practice in the areas of workers' compensation, third-party defense of employers, asbestos class action litigation, insurance coverage issues and automobile liability claims. Toney has successfully defended hundreds of workers' compensation claims before various arbitrators throughout the State of Illinois, as well as before all panels of the Illinois Workers' Compensation Commission. Toney was a member of a three attorney trial team which handled a class action lawsuit arising out of a medical malpractice class action which lasted approximately eight weeks in East Central Illinois. During the course of this litigation, he was required to depose approximately one-half of the class, prepare defense experts, and participate in all phases of the eight-week trial. Professional Associations Champaign County Bar Association Illinois State Bar Association American Bar Association Will County Bar Association Illinois Trial Lawyers Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor, Louisiana State University, 1995 Bachelor of Arts (Golden Key Honor Society), University of Illinois, 1992 Significant Cases Land v. Montgomery - Eight week medical malpractice class action lawsuit. Public Speaking Case Study: Respondent Attorney Trial Strategy Perspective SafeWorks Illinois 17th Annual Work Injury Conference, Champaign, IL (2009) Workers Compensation Law Update Lorman Seminar (2008) Arising Out of Issue Do They Really Have All the Facts They Need Heyl Royster (2008) Recent Developments In Workers Compensation Risk and Insurance Management Society (2007) F-16 Learn more about our speakers at