[36 Pa.B. 2913]
[Saturday, June 10, 2006]
[Continued from previous Web Page] (c) The Bureau will assign requests for recertification of treatment to the URO that previously determined that treatment was reasonable and necessary.
§ 127.842. Requests for UR---redetermination.
(a) If a request for UR resulted in a determination that prospective treatment is unreasonable or unnecessary, the employee or provider who was a party to the determination may request a redetermination of the treatment upon evidence that the employee's medical condition has changed and the treatment is now reasonable and necessary.
(b) Redetermination shall only be permitted when medical records of treatment occurring since the initial determination demonstrate that the employee's medical condition has changed.
(c) A redetermination under this section shall be prospective in effect and only address treatment rendered after the initial determination.
(d) The Bureau will assign requests for redetermination to the URO that rendered the initial determination that care was unreasonable or unnecessary. The assigned reviewer will determine if the employee's medical condition has changed and the treatment under review is now reasonable and necessary.
URO OPERATIONS § 127.851. Requesting and providing medical records.
(a) A URO shall request records from the treating providers listed on the request for UR within 5 days of the date of the Notice of Assignment.
(b) Within 5 days of the date of the Notice of Assignment, the URO shall request that the provider under review provide a complete set of records relating to the work injury. The URO shall submit the request to the provider by certified mail.
(c) The provider under review shall mail all requested medical records to the URO within 15 days of the postmark date of the URO's request.
(d) Upon a URO's request for medical records under § 127.841 and 127.842 (relating to requests for UR--recertification; and requests for UR--redetermination), the provider under review shall mail all requested medical records to the URO within 7 days of the postmark date of the URO's request.
§ 127.852. Scope of review of UROs.
(a) UROs shall decide only the reasonableness or necessity of the treatment under review.
(b) UROs shall decide the extent to which treatment subject to concurrent or prospective review will remain reasonable and necessary in the future.
(c) UROs may not decide, and reviewers may not comment upon, any of the following issues:
(1) The causal relationship between the treatment under review and the employee's work-related injury.
(2) Whether the employee is still disabled.
(3) Whether maximum medical improvement has been obtained.
(4) Whether the provider under review performed the treatment under review as a result of an unlawful self-referral.
(5) The reasonableness of the fees charged by the provider under review.
(6) The appropriateness of the diagnosis, or the diagnostic or procedural codes used by the provider for billing purposes.
(7) Other issues which do not directly relate to the reasonableness or necessity of the treatment under review, except as provided in § 127.842 (relating to requests for UR--redetermination).
§ 127.853. Extent of review of medical records.
To determine the reasonableness or necessity of the treatment under review, UROs shall attempt to obtain for review all available medical records of all treatment rendered by all providers to the employee for the work-related injury.
§ 127.854. Obtaining medical records--provider under review.
(a) A URO shall request records from the provider under review in writing. The written request for records shall be sent by certified mail, return receipt requested.
(b) The provider under review, or his agent, shall sign a verification stating that to the best of the provider's knowledge, the medical records provided constitute the true and complete medical record as it relates to the employee's work injury. When records are not accompanied by the appropriate verification, the URO shall return the records to the provider, may not consider the records in issuing its determination, and shall disregard the fact that the records were forwarded to the URO.
§ 127.855. Employee personal statement.
(a) The employee may submit a statement regarding the reasonableness and necessity of the treatment under review.
(b) Within 5 days of the date of the Notice of Assignment, the URO shall provide written notification to the employee that the employee may submit a statement regarding the reasonableness and necessity of the treatment under review within 15 days of the date of the URO's written notice.
(c) Within 15 days of the date of the written notice referenced in subsection (b), the employee may submit to the URO a personal statement regarding the reasonableness and necessity of treatment. The personal statement must meet all of the following conditions:
(1) It may contain only discussion of treatment that the injured employee has received or is receiving from the provider under review.
(2) It may not contain discussion of an independent medical examination or impairment rating evaluation that the injured employee may have had.
(3) It may not contain discussion of a workers' compensation judges' decisions or legal, payment or claims issues.
(4) It may not contain enclosures, attachments or documentation.
(5) It may identify providers who treated the employee for the work injury which were not identified on the request for UR.
(6) It shall be signed by the injured employee.
(d) The URO shall redact any portion of the employee's statement that provides information prohibited under subsection (c) before sending the statement to the reviewer. The URO or the reviewer may not use any information prohibited under subsection (c) in formulating a determination.
(e) The URO and reviewer may utilize the employee's statement in formulating a report and determination subject to the restrictions of this subchapter.
§ 127.856. Insurer submission of studies.
Within 10 days of the date of the Notice of Assignment, the insurer may submit peer-reviewed, independently funded studies and articles and reliable medical literature which are relevant to the reasonableness and necessity of the treatment under review to the URO.
§ 127.857. Obtaining medical records--other treating providers.
(a) A URO shall request medical records from other treating providers in writing.
(b) A provider or his agent who supplies medical records to a URO under this section shall sign a verification stating that to the best of the provider's knowledge the medical records provided constitute the true and complete medical chart as it relates to the employee's work injury. When records are not accompanied by the appropriate verification, the URO shall disregard the records and return the records to the provider.
§ 127.858. Obtaining medical records--independent medical exams.
A URO may not request and a party may not supply reports of examinations or evaluations performed at the request of an insurer, employee or attorney for the purposes of litigation. Only the medical records of actual treating providers, and the personal statement and studies referenced in §§ 127.855 and 127.856 (relating to employee personal statement; and insurer submission of studies), may be requested by or supplied to a URO.
§ 127.859. Obtaining medical records--duration of treatment.
A URO shall attempt to obtain records from all providers for the entire course of treatment rendered to the employee for the work-related injury that is the subject of the UR request, regardless of the period of treatment under review.
§ 127.860. Obtaining medical records--reimbursement of costs of provider.
(a) A provider seeking reimbursement of copying and postage costs shall submit an itemized bill for the copying and postage costs to the URO.
(b) Within 30 days of receiving medical records, the URO shall reimburse the provider for the requested record-copying costs at the rate specified by Medicare and for actual postage costs. The Bureau will publish changes to the Medicare rate in the Pennsylvania Bulletin.
(c) Reproduction of radiologic films shall be reimbursed at the usual and customary charge. The cost of reproducing the films shall be itemized separately in the URO's bill for performing the UR.
§ 127.861. Provider under review's failure to supply medical records.
(a) If the provider under review fails to mail medical records to the URO within 15 days of the date of the URO's request for the records under § 127.851 (relating to requesting and providing medical records), the URO shall render a determination that the treatment under review is unreasonable and unnecessary.
(b) A provider's failure to supply records under this section shall constitute a waiver of its opportunity to participate in the UR process relating to the treatment under review.
(c) A provider that fails, without reasonable cause or excuse, to supply records under this section may not introduce evidence regarding the reasonableness and necessity of the treatment in an appeal under § 127.901 (relating to petition for review of UR determination).
§ 127.862. Requests for UR--deadline for URO determination.
(a) A request for UR shall be deemed complete upon the URO's receipt of the medical records or 18 days from the date of the notice of assignment, whichever is earlier.
(b) A URO shall complete its review and render its determination within 20 days of a completed request for UR except as provided in subsection (c).
(c) A URO shall complete its review and render its determination with 10 days of a completed request for UR filed under §§ 127.841 and 127.842 (relating to request for UR--recertification; and request for UR--redetermination).
§ 127.863. Assignment of UR request to reviewer.
(a) Upon receipt of the medical records, the URO shall forward the medical records, the request for UR, the notice of assignment and a Bureau-prescribed instruction sheet to reviewers licensed by the Commonwealth in the same profession and having the same specialty as the providers under review.
(b) The URO shall redact any material that does not reflect the evaluation and treatment of the patient before forwarding the material to the reviewer. The URO shall forward only medical records and documentation required by this subchapter to the assigned reviewer.
§ 127.864. Duties of reviewers--generally.
(a) A reviewer shall issue reports that address the reasonableness and necessity of the treatment under review by reference to the best available clinical evidence regarding the treatment. The reviewer shall apply generally accepted treatment protocols, independently funded peer-reviewed studies and articles, and reliable medical literature appropriate for the review. The reviewer shall specifically reference the protocols, studies, articles and literature in the reviewer's report.
(b) A reviewer shall decide only the issue of whether the treatment under review is reasonable or necessary for the diagnosis of the employee, as rendered by the provider under review.
(c) A reviewer shall assume the existence of a causal relationship between the treatment under review and the employee's work-related injury. The reviewer may not consider or comment upon whether the employee is still disabled, whether maximum medical improvement has been obtained, quality of care, reasonableness of fees or an issue that is not directly relevant to the reasonableness and necessity of treatment rendered to the employee.
(d) In a determination in which the reviewer determines that prospective treatment is reasonable and necessary, the reviewer shall clearly provide a time frame not to exceed 180 days within which the treatment remains reasonable and necessary. The review shall specifically cite to generally accepted treatment protocols, independently funded peer-reviewed studies and articles, and reliable medical literature that support the determination and the time frame in question.
(e) A reviewer shall make a definite determination as to whether the treatment under review is reasonable or necessary. A reviewer may not render advisory opinions regarding whether additional diagnostic tests are needed. In determining whether the treatment under review is reasonable or necessary, a reviewer may consider whether other courses of treatment exist. A reviewer may not determine that the treatment under review is unreasonable or unnecessary solely because other courses of treatment exist.
(f) If the reviewer is unable, after reviewing all relevant information, to determine whether the treatment under review is reasonable or necessary, the reviewer shall resolve the issue in favor of the provider under review.
§ 127.865. Duties of reviewers--conflict of interest.
A reviewer shall return a review to the URO for assignment to another reviewer if any of the following exist or potentially exist:
(1) The reviewer has a previous involvement with the patient or with the provider under review regarding the same underlying claim except as permitted by §§ 127.841 and 127.842 (relating to requests for UR--recertification; and requests for UR--redetermination).
(2) The reviewer has provided case management services in a matter involving the patient whose treatment is under review.
(3) The reviewer has provided vocational rehabilitation services in a matter involving the patient whose treatment is under review.
(4) The reviewer has a contractual relationship with a party in the matter.
§ 127.866. Duties of reviewers--content of reports.
A reviewer's written report must contain the following elements:
(1) A listing of the medical records reviewed.
(2) The reviewer's findings and conclusions.
(3) A detailed explanation of the reasons for the conclusions reached by the reviewer. The explanation must cite all applicable generally accepted treatment protocols, independently funded peer-reviewed studies and articles, and reliable medical literature used to support the determination and time frame under review.
§ 127.867. Duties of reviewers--signature and verification.
(a) A reviewer shall sign a report. A signature stamp may not be used.
(b) A reviewer shall sign a verification under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) that the reviewer personally reviewed the records and that the report reflects the medical opinions of the reviewer.
§ 127.868. Duties of reviewers--forwarding report and medical records to URO.
A reviewer shall forward a report and all medical records reviewed to the URO upon completion of the report.
§ 127.869. Duties of UROs--review of report.
(a) A URO shall examine the reviewer's report to ensure that the reviewer has complied with this subchapter.
(b) A URO shall ensure that all records have been returned by the reviewer.
(c) A URO may not contact a reviewer and attempt to persuade the reviewer to change the medical opinions expressed in a report.
§ 127.870. Form and service of determinations.
(a) A determination rendered by a URO shall include a medical treatment review determination face sheet on a Bureau-prescribed form and include the reviewer's report. An authorized representative of the URO shall sign the determination face sheet.
(b) When a determination is rendered against the provider under review because the provider under review failed to comply with § 127.851 (relating to requesting and providing medical records), the determination shall consist only of the face sheet. The face sheet must state that the basis for the decision is the provider under review's failure to supply medical records to the URO.
(c) The URO shall serve the determination upon the Bureau, all parties identified on the Notice of Assignment and their attorneys, if known.
(d) The URO shall serve a copy of a ''Petition for Review of Utilization Review Determination'' on all parties identified on the Notice of Assignment and their attorneys, if known.
§ 127.871. Determination against insurer--payment of medical bills.
(a) If the UR determination finds that the treatment reviewed was reasonable or necessary, the insurer shall pay the bills submitted for the treatment in accordance with § 127.208 (relating to time for payment of medical bills).
(b) Interest continues to accrue under section 306 (f.1)(1) of the act (77 P. S. § 511 (1)) during the UR process. The insurer shall pay interest on bills for treatment that is eventually determined to be reasonable and necessary. The filing of a request for UR tolls the payment requirements of § 127.208 only during the consideration of UR. The insurer's failure to timely pay any amount due under this section may result in the imposition of penalties under section 435 of the act (77 P. S. § 991).
UR--PETITION FOR REVIEW § 127.901. Petition for review of UR determination.
A party aggrieved by a UR determination may file a ''Petition for Review of Utilization Review Determination.''
§ 127.902. Petition for review--time for filing.
The petition for review shall be filed with the Bureau within 30 days of the date of the URO's determination.
§ 127.903. Petition for review--notice of assignment and service.
(a) The Bureau will assign the petition for review to a workers' compensation judge when there is a UR determination relating to the petition for review.
(b) The Bureau will mail the notice of assignment and the petition for review to the URO, the employee, the insurer, the provider under review, and the attorneys for the parties, if known. The Bureau may mail the notice of assignment to other providers listed on the request for UR.
§ 127.904. Petition for review--no answer allowed.
The Bureau will not accept an answer to the petition for review.
§ 127.905. Petition for review--transmission of records.
(a) When a petition for review has been filed, the Bureau will forward the URO report to the workers' compensation judge assigned to the case.
(b) Upon the workers' compensation judge's own motion, or motion of any party to the proceeding, the workers' compensation judge may order the URO to forward all medical records obtained for its review to the workers' compensation judge. The URO shall forward all medical records within 10 days of the date of the workers' compensation judge's order.
(c) An authorized agent of the URO shall sign a verification stating that, to the best of the agent's knowledge, the medical records forwarded to the workers' compensation judge is the complete set of medical records obtained by the URO.
(d) When records are provided under subsection (b), the URO shall transmit its itemized bill for record-copying costs to the manager of the Bureau's Medical Treatment Review Section, together with a copy of the workers' compensation judge's order directing the URO to provide the records. The Bureau will reimburse the URO actual postage costs and record-copying costs at the rate specified by Medicare. Reproduction of radiologic films shall be reimbursed at the usual and customary rate.
§ 127.906. Petition for review by Bureau--hearing and evidence.
(a) The hearing before the workers' compensation judge shall be a de novo proceeding.
(b) The URO report shall be part of the record before the workers' compensation judge and the workers' compensation judge will consider the report as evidence.
(c) The workers' compensation judge will not be bound by the URO report. The workers' compensation judge may request additional review of the treatment under review under section 420 of the act (77 P. S. § 831).
(d) The workers' compensation judge may disregard evidence offered by any party who has failed to respond to a URO's request for records in the same UR matter, as set forth in § 127.861 (relating to provider under review's failure to supply records).
PEER REVIEW § 127.1001. Peer review--availability.
(a) A workers' compensation judge may, on the workers' compensation judge's own motion or upon the motion of any party, obtain an opinion from an authorized PRO concerning the necessity or frequency of treatment rendered under the act when one of the following exist:
(1) A petition for review of a UR determination has been filed.
(2) The opinion is necessary or appropriate in other litigation proceedings before the worker's compensation judge. Peer review is not necessary or appropriate if there is a pending UR of the same treatment.
(b) A workers' compensation judge is not required to grant a party's motion for peer review under subsection (a).
§ 127.1002. Peer review--procedure upon motion of party.
(a) A party may not file a request for UR while a motion for peer review regarding the same treatment is pending.
(b) If the workers' compensation judge does not rule on the motion for peer review within 10 days, the motion shall be deemed denied.
(c) If the motion for peer review is denied, a party may file requests for UR as permitted in this subchapter.
(d) If the motion for peer review is granted, the workers' compensation judge will proceed under § 127.1004 (relating to peer review--forwarding request to Bureau).
§ 127.1003. Peer review--interlocutory ruling.
The ruling on a motion for peer review is interlocutory.
§ 127.1004. Peer review--forwarding request to Bureau.
(a) A workers' compensation judge may request peer review by submitting a request to the Bureau on a Bureau-prescribed form. The workers' compensation judge will serve a copy of the request upon all parties and their attorneys, if known.
(b) In cases other than petitions for review of a UR determination, the worker's compensation judge will sign and attach subpoenas to the request for peer review. The assigned PRO shall use the subpoenas to obtain medical records.
§ 127.1005. Peer review--assignment by the Bureau.
(a) The Bureau will assign a properly filed request for peer review to an authorized PRO.
(b) The Bureau will send a Notice of Assignment of Peer Review to the PRO, the workers' compensation judge, all parties and their attorneys, if known.
§ 127.1006. Peer review--reassignment.
(a) If a PRO is unable to perform a request peer review assigned to it by the Bureau, the PRO shall return the request for peer review to the Bureau for reassignment within 5 days of the PRO's receipt of the Notice of Assignment.
(b) A PRO may not reassign a request for peer review to another PRO.
(c) A PRO shall return requests for peer review assigned to it by the Bureau if the PRO has a conflict of interest with the request under § 127.1007 (relating to peer review--conflicts of interest).
(d) A PRO shall be deemed to have received a Notice of Assignment on the date that the Bureau transmits the notice to the URO by electronic means or by facsimile.
§ 127.1007. Peer review--conflicts of interest.
A PRO shall have a conflict of interest and shall return a request for peer review to the Bureau for reassignment for any of the following reasons:
(1) The PRO has a previous involvement with the patient or with the provider under review regarding the same underlying claim.
(2) The PRO has provided case management services in a matter involving the patient whose treatment is under review.
(3) The PRO has provided vocational rehabilitation services in a matter involving the patient whose treatment is under review.
(4) The PRO is owned by or has a contractual arrangement with a party to the review.
(5) The PRO has assigned UR or Peer Review matters to the provider under review in the provider under review's capacity as a reviewer.
§ 127.1008. Peer review--withdrawal.
(a) A request for peer review shall be withdrawn only upon the written order of the workers' compensation judge. The workers' compensation judge will serve a copy of the order upon the Bureau.
(b) The Bureau will promptly notify the PRO of the withdrawal. The Bureau will pay the costs of the peer review from the Workmen's Compensation Administration Fund.
§ 127.1009. Obtaining medical records.
(a) When peer review has been requested on a petition for review of a UR determination, the workers' compensation judge may order the URO to forward to the assigned PRO all medical records received and reviewed for the purposes of the UR.
(b) In all other cases, the PRO shall use the subpoenas supplied under § 127.1004(b) (relating to peer review--forwarding request to Bureau) to obtain medical records from all providers for the entire course of treatment rendered to the employee for the work-related injury. The PRO shall request the medical records within 10 days of the date of the Notice of Assignment.
§ 127.1010. Obtaining medical records--independent medical exams.
A PRO may not request and a party may not supply reports of examinations or evaluations performed at the request of an insurer, employee or attorney for the purposes of litigation. Only the medical records of actual treating providers may be requested by or supplied to a PRO.
§ 127.1011. Provider under review's failure to supply medical records.
(a) If the provider under review fails to comply with a subpoena issued under this subchapter, the PRO shall report the provider's noncompliance to the workers' compensation judge.
(b) If the provider under review fails to supply medical records, the PRO may not assign the matter to a reviewer, and may not make a determination concerning the necessity or frequency of treatment.
§ 127.1012. Assignment of peer review request to reviewer by PRO.
Upon receipt of the medical records, the PRO shall forward the medical records, the request for peer review and the Notice of Assignment to a reviewer licensed by the Commonwealth in the same profession and having the same specialty as the providers under review.
§ 127.1013. Duties of reviewers--generally.
A reviewer shall adhere to the requirements of § 127.864 (relating to duties of reviewers--generally).
§ 127.1014. Duties of reviewers--conflict of interest.
A reviewer shall return a review to the PRO for assignment to another reviewer if one or more of the following exist or potentially exist:
(1) The reviewer has a previous involvement with the patient or with the provider under review regarding the same underlying claim.
(2) The reviewer has provided case management services in a matter involving the patient whose treatment is under review.
(4) The reviewer has provided vocational rehabilitation services in a matter involving the patient whose treatment is under review.
(5) The reviewer has a contractual relationship with a party in the matter.
§ 127.1015. Duties of reviewers--finality of decisions.
(a) A reviewer shall make a definite determination as to the necessity and frequency of the treatment under review. A reviewer may not render advisory opinions on whether additional diagnostic tests are needed. In determining whether the treatment under review is necessary, a reviewer may consider whether other courses of treatment exist. However, a reviewer may not determine that the treatment under review is unreasonable or unnecessary solely because other courses of treatment exist.
(b) If the reviewer is unable, after reviewing all relevant information, to determine whether the treatment under review is necessary or of appropriate frequency, the reviewer shall resolve the issue in favor of the provider under review.
§ 127.1016. Duties of reviewers--content of reports.
A reviewer's written report must contain the following elements:
(1) A listing of the medical records reviewed.
(2) The reviewer's findings and conclusions.
(3) A detailed explanation of the reasons for the conclusions reached by the reviewer. The reviewer shall cite all applicable generally accepted treatment protocols, independently funded peer-reviewed studies and articles, and reliable medical literature used to support the determination and timeframe under review.
§ 127.1017. Duties of reviewers--signature and verification.
(a) A reviewer shall sign a report. Signature stamps may not be used.
(b) A reviewer shall sign a verification under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) that the reviewer personally reviewed the records and that the report reflects the medical opinions of the reviewer.
§ 127.1018. Duties of reviewers--forwarding report and records to PRO.
A reviewer shall forward the reports and all medical records reviewed to the PRO upon completion of the report.
§ 127.1019. Duties of PRO--review of report.
(a) A PRO shall examine the reviewer's report to ensure that the reviewer has complied with the requirements of this subchapter.
(b) A PRO shall ensure that all records have been returned by the reviewer.
(c) A PRO may not contact a reviewer and attempt to persuade the reviewer to change the medical opinions expressed in a report.
§ 127.1020. Peer review--deadline for PRO determination.
A PRO shall complete its review and render its determination within 15 days of its receipt of the medical records.
§ 127.1021. PRO reports--filing with judge and service.
(a) The PRO shall forward its report to the workers' compensation judge.
(b) The PRO shall mail copies of the report by certified mail, return receipt requested, to all parties listed on the Notice of Assignment and their attorneys, if known.
§ 127.1022. PRO reports--evidence.
The PRO report shall be a part of the record of the pending case. The workers' compensation judge will consider the report as evidence but is not bound by the report.
§ 127.1023. PRO reports--payment.
The PRO shall submit a bill for services relating to its review and report to the workers' compensation judge for approval.
URO/PRO AUTHORIZATION § 127.1051. Authorization of UROs/PROs.
(a) The Bureau may authorize UROs/PROs to perform reviews under this chapter through an award of contracts under 62 Pa.C.S. (relating to Commonwealth Procurement Code). The Bureau will award contracts on a competitive sealed basis in accordance with the Commonwealth Procurement Code.
(b) The request for proposal (RFP) issued by the Bureau will set forth the specific minimum requirements that an offeror's proposal must address The RFP must require the offeror to describe the specific means by which it will conduct UR/Peer Review operations and comply with this chapter and any other information that the BWC may request. Proposals must demonstrate that the offeror has the ability to meet the requirements set forth in this chapter.
(c) The Bureau is not required to award a contract to every offeror that submits a proposal that meets the minimum requirements established by the RFP.
§ 127.1052. UROs/PROs authorized prior to (the effective date of these amendments).
UROs/PROs authorized before ______ (Editor's Note: The effective date of adoption of this proposed rulemaking.) shall continue to be authorized until the expiration date set forth on the authorization issued by the Bureau.
[Pa.B. Doc. No. 06-1056. Filed for public inspection June 9, 2006, 9:00 a.m.]
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