How to Stay on the Safer Side of the River When UR Laws Conflict

| | Evidence Based Medicine, Technology & Integration, Utilization Review

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Karas Oct 2012 Article Staying on the Safer Side of the River
At the 2016 CWC & Risk Conference,“Inconsistent Laws being Passed by N. Cal. and S. Cal. Judges” drew much interest. It prompted us to do our own article about conflicting utilization review (UR) laws. Here are our thoughts on what to do when state UR laws and regulations conflict.

When Practicing UR in Tennessee Watch Those Turn Around Times

In Tennessee, the Department of Insurance regulates UR time frames. For prospective review, the deadline for response is two business days from the day you receive the request and the necessary information reasonably needed to process the request. But wait, the Tennessee Workers’ Compensation Bureau also has a time frame. That time frame is five business days for prospective review.

As you might imagine, we have had more than one client ask us what they are supposed to do. Our advice, as always, is to stay on the safer side of the river bank. In this instance, we advise that our clients use the 2-day turnaround time per the Department of Insurance. Obviously, one of the considerations we analyze is cost. If, for example, the choice was five business days (as seen above) or 24 hours, then maybe we push back against the 24 hours as that would be an expedited request, considerably increasing costs.

In Texas, for a Long Time the “Peer-to-Peer Reasonable Opportunity” was a Mystery

For many years, the rule in Texas was that UR physicians had to allow the requesting provider a “reasonable opportunity” to have a peer-to-peer phone call. But the “reasonable opportunity” was not defined in the Texas Labor Code, Texas Administrative Code, or Texas Insurance Code. So what did it mean? Did it mean that UR physicians had to tell the requesting provider exactly what hours they would be available for a call back? Did UR physicians have to pick up the phone on the first or second ring? It simply wasn’t clear.

At UniMed Direct, we developed a policy based on URAC (we are URAC accredited) that said that prior to a UR physician denying a request for treatment, the UR physician had to make two separate calls on two separate days. For example, if a UR physician was going to deny a request for lumbar surgery, he or she needed to call the requesting provider at least the day before the denial was due to request a peer-to-peer conversation. If no contact was made, he or she needed to call the requesting provider again the next day. Two different calls on two different days. Luckily, in 2012, Texas amended the rule and defined “reasonable opportunity” as a phone call at least one working day prior to the day before the decision was to be rendered for prospective review. This, in theory, would give the requesting provider a chance to call the UR physician and have a peer to peer if she felt the UR physician was wrong.

In Mississippi Watch Out for the Physician Same State Requirement

For a long time Mississippi had a fee schedule that said UR could be performed by a physician not licensed to practice medicine in Mississippi. But in order to do UR in Mississippi, you must have a certificate by the Department of Health. The Department of Health public health code has a requirement that any physician doing UR on a Mississippi case must have a license from the Mississippi Board of Medical Licensure.

In this instance, some of our clients thought they could venture to the unsafe side of the river bank, namely advocating the use of non-Mississippi licensed UR physicians. After all, it would be cheaper to have a larger pool of physicians from which to select, right? But we counseled them that, giving the conflicting nature of laws in Mississippi, they would be smart to use Mississippi licensed physicians. In 2013, the fee schedule was amended. The amended version specifically requires the use of Mississippi licensed physicians for UR. So in retrospect, we felt good about our position.

When laws conflict, even after seeking clarification from our in-state agency contacts, it’s better to err on the side of safety; stay on the safer side of the river bank. But as we do so, we also want to be mindful of costs, as neither we, nor our clients, have unlimited resources.

Kara Larson, Regulatory Manager at UniMed Direct