KEY PROVISIONS OF SB 1160

This summer, there were numerous workers’ compensation bills being considered in the legislature, but the one which has emerged is the 8/31/2016 passage of SB 1160. This fifty eight page bill is now on the Governor’s desk for his awaited and expected signature.

As you probably know very well by now, legislative reform enactments, however promising, have their own “stages.”

We will provide a much more detailed analysis of the bill later on this fall, but right now these are the key provisions:

• Present UR statute remains in effect until 1/1/2018, unless deleted or extended by a later enacted statute.
• 1/1/2018: [4610(b)]: Prospective UR will not be required within the initial 30 days of injury, for both emergency treatment and Labor Code § 4600 medical care for accepted condition(s) or body part(s), provided: (1) Treatment is compliant with the MTUS; and (2) It is provided by the MPN, HCO or the pre-designated physician. Prospective UR is required for noted exceptions, which include surgery, psychological treatment, home health care, imaging and radiology (excluding X-rays), durable medical equipment and pharmaceuticals, unless exempted from UR or not authorized under the drug formulary.
• NO UR FOR DRUGS ON THE FORMULARY: Those drugs which are listed on the Preferred Drug List (“PDL”) are pre-authorized and need not go through UR. The new drug formulary is required to be adopted by 7/1/2017 and will contain the Preferred Drug List. No UR is required, provided the doctor is otherwise in compliance with the MTUS. UR will be required, however, for drugs on the Non-Preferred List and those not otherwise covered. While opioids will not be on that list, there will likely be an exception for a “first fill” for no more than 4 days.
• Required telephone access during California business hours now includes peer-to-peer.
• Physician’s First Report: Failure to provide timely report may form basis upon which to remove the ability to treat the employee – removal from MPN or HCO.
• 1/1/2018: Retrospective review permitted to determine whether 4610(b) treatment is in compliance with MTUS, including drug formulary. If it is found there is pattern and practice of physician provider failing to provide care in compliance with MTUS, including drug formulary, employer may remove physician (pre-designated, MPN, HCO employer-selected) from ability to treat any employee that is exempt from UR. Employer may file a petition for order changing treating physician.
• On or before 1/1/2018: All UR process must be accredited by an independent non-profit organization certifying UR process meets certain criteria. AD to implement rules to select the organization; in the meantime, AD shall use URAC as the accrediting organization.
• Prohibition against financial incentives or consideration to a physician based upon number of modifications or denials.
• Neither insurer nor third-party administrator shall refer for UR services to an entity in which the referring party has a financial interest, unless disclosure is made to the Administrative Director. AD has authority to review underling financial documents, otherwise deemed confidential.
• UR denial decision based upon incomplete or insufficient information shall also specify not only what is needed, but also the date(s) and time(s) of attempts made to contact physician to obtain necessary information.
• Final decisions to approve, modify or deny requests (RFA) shall be communicated to requesting physician within 24 hours of the decision by telephone, facsimile or, if agreed to by the parties, secure Email.
• 3/1/2019: AD to contact outside independent research organization to evaluate impact of the first 30 days of medical treatment for claims filed between 1/1/2017 and before 1/1/2019.
• AD to develop mandatory system of electronic reporting of documents for every UR performed.

• Employee requests for IMR: time shortened to 10 days for formulary disputes (these will be for non-preferred drugs).
• All other disputes remain at 30 days.
• Claims administrator required to notify Maximus if there is a change in the claims administrator responsible for the claim.
• IMR decisions from Maximus are required within 30 days of receipt of supporting documentation. For disputes over medication per the Formulary, the time is shortened to five (5) working days from receipt of supporting documentation.

• Any lien filed either for treatment or medical-legal charges, as well as any accrual of interest related to the lien, will be automatically stayed upon the filing of criminal charges against the physician or provider for an offense involving fraud against the workers’ compensation system, medical billing fraud, insurance fraud, or fraud against the Medicare or Medi-Cal program. Stay remains in effect from the filing of criminal charges until disposition of criminal proceedings.
• AD shall post names of physicians or providers whose liens have been stayed.
• 1/1/2017: Liens filed on or after 1/1/2017 shall contain a declaration that dispute is not subject to IBR and IMR and that lien claimant must satisfy one of the following: (A) Is the PTP through an MPN; (B) Is the AME or QME; (C) Has provided treatment per Labor Code § 4610; (D) After diligent search, no MPN in place; (E) Documentation that medical treatment was neglected or unreasonably refused; (F) Emergency treatment; (G) Is a certified interpreter or copy service. Lien claimants have until 7/1/2017 to file this declaration for any lien filed before 1/1/2017. Failure to file a signed declaration shall result in dismissal of lien with prejudice by operation of law. Filing of false declaration shall be grounds for dismissal with prejudice, after notice.
• 1/1/2017: Liens filed on or after 1/1/2017 must be accompanied by an original bill, in addition to a full statement or an itemized voucher supporting the lien.
• Order for payment to lien holder only and not to assignee, unless the person has ceased doing business. All liens to be filed in name of lien holder only, and no payment to be made without evidence that he or she is owner of lien.

• Evidence-based updates to the MTUS can be made without formal, administrative rule-making process, but AD required to provide 30 day comment period and a public hearing.

• On or before 7/1/2018, the Administrative Director shall determine the range of reasonable fees to be paid under Labor Code § 5710.

• By no later than 1/1/2018: AD to promulgate regulations establishing criteria to verify identity and credentials of individuals who provide interpreting services.

• 5 day report will require additional items: diagnosis, employee’s description of how injury or illness occurred, treatment rendered at time of examination (if any), work restrictions resulting (if any), and treatment plan.
• Form to be electronically filed with the DWC and the employer, or if insured, with employers’ insurer, within 5 days of the initial examination.