11-7-11; Does UR-Peer Review for an IL WC claim have to occur in Illinois? Will such determinations be more “effective” in this state?

We had a reader ask this question and want you to get our thoughts on the topic and send us yours. Utilization review is a medical cost control concept brought to the IL WC system as part of the 2005-2006 Amendments to our WC Act. In our view, at the time of those Amendments, the claimant bar and claimant-friendly hearing officers didn’t truly know what UR was or how it works. When they found out what it was and how it worked, they immediately tried to create “games” or devices to counter its value and impact.

On the other side of the trench, please remember most doctors and surgeons hate, abhor, despise and dislike UR. In our view, lots of docs think they are gods or at least demi-gods and can never be questioned by other mere mortals. Kidding aside, we always wonder how doctors and surgeons can get along with UR on the group health side of their practices but complain so stridently if there is any limitation on their scalpels on the WC side.

Either way, last week at a major confab, a claimant attorney of some note and a defense attorney participated in a panel discussion. Our reader indicated the plaintiff attorney on the panel said the UR rules in this state mandate a Peer Reviewer who is looking at proposed WC care in this state needs to “be in IL.”  On a preliminary note, we have advised lots and lots of defense clients it is a treacherous path to follow if you are going to listen to and then closely follow controversial legal advice from claimant attorneys whose appropriate goals are to maximize recovery for their clients while also maximizing payout from your claim reserves.

For those of you have attended our presentations or webinars about the changes to the IL WC that were signed off by Governor Quinn on June 28, 2011 at 10am, you may note we didn’t say UR rules require the UR doctors be from, in, over or near Illinois—in our view, they only have to be licensed doctors who are URAC-compliant. They are not required to hover over Illinois in an ultralight when they sign their Peer Review reports to somehow impart efficacy to their work.

Our reader went to the top-notch IWCC website which contains the House Bill 1698 reforms, i.e., http://www.iwcc.illinois.gov/act080811.pdf. She astutely noted Page 74 contains Section 8.7, the UR rules. She was nice enough to copy and paste the provisions that addressed the issue.

(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, videoconference, 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.

Neither our reader nor any of the defense attorneys at our firm see where it says the Peer Reviewer has to reside in IL or perform the review in IL nor does it indicate in which state the Peer Reviewer has to hold their license to practice medicine. It isn’t in the provision above or anywhere else in the WC Act or Rules that we can find. If any of you are aware of a provision as to the requisite situs of an Illinois WC UR-Peer Review, please send it along.

Basically, she wanted to see if the defense attorneys at this firm or any of our other readers have an opinion on

ü  Whether the initial Peer Reviewer and the Appeal Peer Reviewer must have an IL license to practice medicine AND reside in IL (if indeed, an initial denial determination is made and the UR denial is appealed);

ü  She also asked if we feel or our readers feel using a UR-Peer Reviewer with an IL license and/or residing in IL would make UR more legally or technically effective?

ü  Was this claimant attorney handing her a “pig in a poke?” For those of you unfamiliar with this term, we mean was he trying to get the audience members to accept a questionable idea or plan without a full understanding of its basis.

As veteran defense observers it remains our view, the Plaintiff/Petitioner WC bar hates UR. What they hate the most about the concept is its finality and the fact the medical or surgical decision-making process is being taken from their control.

We assure all our readers as licensed lawyers and adjunct professors of workers’ compensation law, there is no requirement in our law indicating UR analysis has to be in IL or the nurses and docs have to be residents of this state. The nurses and docs providing peer-review have to follow appropriate medical guidelines and national and international medical research. We are sure they all do—it doesn’t make any difference whether they do it in Tennessee, California or Oklahoma. The section of the IL WC Act cited above mandates any question of a peer reviewer will result in a deposition being conducted at the IL employer’s cost and the doc has to be available via “remote electronic means.” Our impression of the UR doc-location question is the legislature must have contemplated out of state UR physicians or they would not have bothered to insert all of the provisions for phone deps or other electronic means.

As to whether it is more “effective” for a UR-Peer Reviewer to be in or from or over IL when they reach their determination, we assert if the UR provider certifies care, it won’t make any difference if they are in IL. If the UR-Peer Review provider non-certifies care, the claimant bar and a few of our pro-Plaintiff hearing officers may blame it on whatever they can scramble up to attack the decision. One of those multifarious attacks will be the fact the Peer Reviewer might not be in IL, making their determinations somehow suspect. We are sure the claimant bar also may similarly assert UR-Peer Review reports they disagree with have to be on purple paper with pixie dust on it because if the reports aren’t on such paper, they may not be quite as “effective.”

We consider it a completely “IL WC” phenomenon that anyone cares the slightest bit whether the UR analysis is conducted in Paris, IL or Paris, France. In our view, it is “crazy-making” of the highest sort. We consider this an unneeded diversion to get you to find new things to worry about in managing IL WC claims. Please remember this sort of “crazy-making” came from the same minds that brought us:

o   Vocational rehabilitation somehow turned into a medical benefit, thereby mystically stripping Illinois employers of the right to defend themselves in the most expensive of IL WC claims—this one hasn’t reached the Appellate Court yet and we hope it doesn’t;

o   The creation of “Odd-lot” or what we call “Lazy-Lot” total and permanent disability awards from a ruling named E.R. Moore v. Commission—the words “odd-lot” don’t appear in any Section of the IL WC Act or Rules;

o   A witness fee to attend a hearing in response to a WC subpoena that magically was transformed into an unlimited copying requirement for medical records in Clayton v. Ingalls Memorial Hospital;

o   “Maximum medical improvement” as a legal concept in Mechanical Devices v. IWCC that could mysteriously require TTD to be paid even after the injured worker returned to light or full work—for legal scholars, the words “maximum medical improvement” don’t appear in any section of the IL WC Act or Rules.

We assure everyone if the situs of the UR-Peer Review becomes an issue and our shiny-new Arbitrators and Commissioners want it to be, it might be. If they don’t want UR to be effective, they will list it as another reason to ignore UR. As to every aspect of the 2011 Amendments to the IL WC Act, it is truly impossible to tell what the “professional, transparent and fair” hearing officers will do. We hope they closely adhere to the letter of the law. If they follow the law as written, it shouldn’t make any difference where UR-Peer Reviews take place. If they are going to make up new and unprecedented rules, as we have been advised this claimant attorney might be doing, we will all have to adjust.

We appreciate your thoughts and comments. We thank our reader for her research and writing on this important topic.