Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Mandatory Utilization Review
Administrative Penalties. Notwithstanding Labor Code section
129.5(c)(1) through
(c)(3), the penalty amount that shall be
assessed for each failure to comply with the utilization review process
required by Labor Code section
4610, and
sections of Title 89792.6 through
9792.12 of Title 8 of the
California Code of Regulations, is:
(1) For
failure to establish a Labor Code section
4610
utilization review plan: $50,000;
(2) For failure to include all of the
requirements of section
9792.7(a) in the
utilization review plan: $5,000;
(3) For failure to file the utilization
review plan or a letter in lieu of a utilization review plan with the
Administrative Director as required by section
9792.7(c):
$10,000;
(4) For failure to file a
modified utilization review plan with the Administrative Director within 30
calendar days after the claims administrator makes a material modification to
the plan as required by section
9792.7(c):
$5,000;
(5) For failure to employ
or designate a physician as a medical director, as defined in section
9792.6 (l), of the
utilization review process, as required by section
9792.7(b):
$50,000;
(6) For issuance of a
decision to modify or deny a request for authorization regarding a medical
treatment, procedure, service or product where the requested treatment,
procedure or service is not within the reviewer's scope of practice (as set
forth by the reviewer's licensing board): $25,000;
(7) For failure to comply with the
requirement that only a licensed physician may modify, delay, or deny requests
for authorization of medical treatment for reasons of medical necessity to cure
or relieve, except as provided for in Labor Code section
4604.5(c):
$25,000;
(8) For failure of a
non-physician reviewer (person other than a reviewer, expert reviewer or
medical director as defined in section
of Title
89792.6 of Title 8 of the California Code of
Regulations), who approves an amended request without documenting the amended
request as provided under section
9792.7(b)(3) when
a physician has voluntarily withdrawn a request in order to submit an amended
request: $1,000;
(9) For failure to
communicate the decision in response to a request for an expedited review, as
defined in section
9792.6(g), in a
timely fashion, as required by section
9792.9 and section
9792.9.1: $15,000;
(10) For failure to approve the request for
authorization solely on the basis that the condition for which treatment was
requested is not addressed by the medical treatment utilization schedule
adopted pursuant to section
5307.27 of the
Labor Code: $5,000;
(11) For
failure to discuss or document attempts to discuss reasonable options for a
care plan with the requesting physician as required by Labor Code section
4610(g)(3)(B),
prior to denying authorization of or discontinuing medical care, in the case of
concurrent review: $10,000;
(12)
For failure to respond to a complete DWC Form RFA or other request for
authorization accepted by a claims administrator under section
9792.9.1(c)(2)
submitted by the injured employee's requesting treating physician, in the case
of a non-expedited concurrent review: $ 2,000;
(13) For failure to respond to a complete DWC
Form RFA or other request for authorization accepted by a claims administrator
under section
9792.9.1(c)(2)
submitted for authorization by the injured employee's requesting treating
physician, in the case of a non-expedited prospective review: $
1,000;
(14) For failure to respond
to a complete DWC Form RFA or other request for authorization accepted by a
claims administrator under section
9792.9.1(c)(2)
submitted by the injured employee's requesting treating physician, in the case
of a retrospective review: $ 500;
(15) For failure to disclose or otherwise to
make available, if requested, the Utilization Review criteria or guidelines to
the public, as required by Labor Code section
4610,
subdivision (f)(5) and section
of Title
89792.7(d) of Title 8 of the
California Code of Regulations: $100.
(16) For failure to timely serve the
Administrative Director with documentation of compliance pursuant to section
9792.11(v)(5):
$500.
(17) For failure to timely
comply with any compliance requirement listed in the Final Report if no timely
answer was filed or any compliance requirement listed in the Determination and
Order after any and all appeals have become final: $500.
(b) Additional Utilization Review Penalties
and Remediation.
(1) After conducting a
Routine or Return Target Investigation, the Administrative Director, or his or
her designee, shall calculate the investigation subject's performance rating
based on its review of the randomly selected requests. The investigation
subject's performance rating may also be calculated after conducting a Special
Target Investigation. The performance rating will be calculated as follows:
(A) The factor for failure to make and/or
provide a timely response to a request for authorization shall be determined by
dividing the number of randomly selected requests with violations involving
failure to make or provide a timely response to a request for authorization by
the total number of randomly selected requests.
(B) The factor for notice(s) with faulty
content shall be determined by dividing the number of requests involving
notice(s) with faulty content by the total number of randomly selected
requests.
(C) The factor for
failure to issue notice(s) to all appropriate parties shall be determined by
the number of requests involving the failure to issue notice(s) to all
appropriate parties by the total number of randomly selected
requests.
(D) The investigation
subject's investigation performance rating will be determined by adding the
factors calculated pursuant to subsections (b)(1)(A) through (b)(1)(C),
dividing the total by three, subtracting from one, and multiplying by
one-hundred.
(E) If the
investigation subject's performance rating meets or exceeds eighty-five
percent, the Administrative Director, or his or her designee, shall assess no
penalties for the violations listed in this subdivision. If the performance
rating is less than eighty-five percent, the violations shall be assessed as
set forth below in (b)(2) through (b)(5):
(2) For the types of violations listed below
in (b)(4) and (b)(5), each violation shall have a penalty amount, as specified
of $100 in (b)(4) or $50 in (b)(5). The penalty amount specified in (b)(4) and
(b)(5) shall be waived if the investigation subject's performance rating meets
or exceeds eighty-five percent, or if following a Routine Investigation the
claims administrator or utilization review organization agrees in writing to:
(A) Deliver to the Administrative Director,
or his or her designee, within no more than thirty (30) calendar days from the
date of the agreement or the number of days otherwise specified, written
evidence, tendered with a declaration made under penalty of perjury, that
explains or demonstrates how the violation has been abated in compliance with
the applicable statute or regulations and the terms of abatement specified by
the Administrative Director; and
(B) Grant the Administrative Director, or his
or her designee, entry, upon request and within the time frame specified in the
agreement, to the site at which the violation was found for a Return Target
Investigation for the purpose of verifying compliance with the abatement
measures reported in subdivision
9792.12(b)(1)(A)
above and agree to a review of randomly selected requests for authorization;
and
(C) Reinstatement of the
penalty amount previously waived for each such instance, in the event the
violative condition is not abated within the time period specified by the
Administrative Director, or his or her designee, or in the event that such
abatement measures are not consistent with abatement terms specified by the
Administrative Director, or his or her designee.
(3) In the event the Administrative Director,
or his or her designee, returns for a Return Target Investigation, after the
initial violation has become final, and the subject fails to meet the
performance standard of 85%, the amount of penalty shall be calculated as
described below and in no event shall the penalty amount be waived:
(A) The penalty amount for each violation
shall be multiplied by two for a second investigation, but in no event shall
the total penalties for the violations exceed $100,000;
(B) The penalty amount for each violation
shall be multiplied by five for a third investigation, but in no event shall
the total penalties for the violations exceed $200,000;
(C) The penalty amount for each violation
shall be multiplied by ten for a fourth investigation, but in no event shall
the total penalties for the violations exceed $400,000.
(4) For each of the violations listed below,
the penalty amount shall be $100.00 for each instance found by the
Administrative Director, or his or her designee:
(A) For failure to immediately notify all
parties in the manner described in section
9792.9(h)(2) and
section 9792.9.1(f)(2) of
the basis for extending the decision date for a request for medical
treatment;
(B) For failure to
document efforts to obtain information from the requesting party prior to
issuing a denial of a request for authorization on the basis of lack of
reasonable and necessary information;
(C) For failure to make a decision to approve
or modify or deny the request for authorization, within five (5) working days
of receipt of a complete DWC Form RFA or other request for authorization
accepted by a claims administrator under section
9792.9.1(c)(2)
submitted by the injured employee's requesting treating physician, or receipt
of the requested information for prospective or concurrent review, and to
communicate the decision as required by section
9792.9(h)(3) and
section 9792.9.1(f)(3) and
section 9792.9.1(f)(4);
(D) For failure to make and communicate a
retrospective decision to approve, modify, or deny the request, within thirty
(30) working days of receipt of a complete DWC Form RFA or other request for
authorization accepted by a claims administrator under section
9792.9.1(c)(2)
submitted by the injured employee's requesting treating physician, or receipt
of the requested information, as required by section
9792.9(h)(4) and
section 9792.9.1(e)(4), and
(f)(6);
(E) Except as provided in subdivision (a),
for failure to include in the written decision that modifies, delays or denies
authorization, all of the items required by section
9792.9(k)
and(l), and section
9792.9.1(e);
(F) For failure to disclose or otherwise to
make available, if requested, the Utilization Review criteria or guidelines, to
the injured employee whose case is under review, as required by Labor Code
section
4610(f)(5)
and section
9792.8(a)(3) Title
8 of the California Code of Regulations.
(5) For each of the violations listed below,
the penalty amount shall be $50.00 for each instance found by the
Administrative Director, or his or her designee:
(A) For failure by a non-physician or
physician reviewer to timely notify the requesting physician, as required by
section 9792.9(c)(2) or
section 9792.9.1(f)(2),
that additional information is needed in order to make a decision in compliance
with the timeframes contained in section
9792.9(c) or
section 9792.9.1(c);
(B) For failure to communicate the decision
to approve to the requesting physician in the case of prospective or concurrent
review, by phone or fax within 24 hours of the decision, as required by Labor
Code section
4610(g)(3)(A)
and in accordance with section
9792.9(c)(3) or
section 9792.9.1(d)(2);
(C) For failure to send a written notice of
the decision to modify, delay or deny to the requesting party, and to the
injured employee and to his or her attorney if any, within twenty four (24)
hours of making the decision for concurrent review, or within two business days
for prospective review, as required by Labor Code section
4610(g)(3)(A)
and section
9792.9(c)(4) or
section 9792.9.1(e)(3);
(D) For failure to send a written notice of
the decision in the case of retrospective review as required by section
9792.9(d) or
section 9792.9.1(d)(3) and
(e)(4) within thirty (30) days of receipt of
the medical information that was reasonably necessary to make the
determination;
(E) For failure to
document that one of the following events occurred prior to the claims
administrator providing written notice for delay under Labor Code section
4610(g)(5):
(1) the claims administrator had not received
all of the information reasonably necessary and requested;
(2) the employer or claims administrator has
requested a consultation by an expert reviewer;
(3) the physician reviewer has requested an
additional examination or test be performed;
(F) Reserved.
(G) For failure to explain in writing the
reason for delay as required by section
9792.9(h)(2) or
section of
Title 89792.9.1(f)(2) of
Title 8 of the California Code of Regulations when the decision to delay was
made under one of the circumstances listed in section
9792.9(h)(1) or
section 9792.9.1(f)(1).
(6) After the time to file an answer to the
Order to Show Cause Re: Assessment of Administrative Penalties has elapsed and
no answer has been filed or after any and all appeals have become final, the
Administrative Director, or his or her designee, shall post on the website for
the Division of Workers' Compensation the performance rating and summary of
violations for each utilization review investigation.
(c) Independent Medical Review Administrative
Penalties. Notwithstanding Labor Code section
129.5(c)(1) through
(c)(3), the penalty amount that shall be
assessed for each failure to comply with the independent medical review process
required by Labor Code sections
4610.5 and
4610.6, and
sections 9792.6 through
9792.10.8 of this Article is:
(1) For the failure to provide the
Application for Independent Medical Review, DWC Form IMR, set forth at section
9792.10.2, with a written decision
modifying, delaying, or denying a treatment authorization under sections
9792.9 (l) or
9792.9.1: $2,000.
(2) For the
failure to complete all applicable fields on the Application for Independent
Medical Review, DWC Form IMR, set forth at section
9792.10.2, that is provided with a
written decision modifying, delaying, or denying a treatment authorization
under sections
9792.9 (
l) or
9792.9.1:
(A) $500 for a failure to provide
the Employee Name, Address, Phone Number, and Date of Injury;
(B) $500 for a failure to provide the
Requesting Physician Name, Address, Specialty, and Phone Number;
(C) $500 for a failure to provide the Claims
Administrator Name, Adjustor/Contact Name, Address, and Phone Number;
(D) $500 for a failure to complete any field
under the section heading "Disputed Medical Treatment;"
(E) $100 for a failure to provide any field
not identified above.
(3)
For the failure to include in a written decision modifying, delaying, or
denying a treatment authorization under sections
9792.9 (l) or
9792.9.1 a clear statement that advising the injured employee that any dispute
shall be resolved in accordance with the independent medical review provisions
of Labor Code section
4610.5 and
4610.6, and
that an objection to the utilization review decision must be communicated by
the injured worker, the injured worker's representative, or the injured
worker's attorney on behalf of the injured worker on the Application for
Independent Medical Review, DWC Form IMR, set forth at section
9792.10.2, within 30 days of
service of the utilization review decision: $1,000.
(4) For the failure to include in a written
decision modifying, delaying, or denying a treatment authorization under
sections 9792.9 (l) or
9792.9.1 a statement detailing the claims administrator's internal utilization
review appeals process for the requesting physician, if any, and a statement
that the internal appeals process is a voluntary process that neither triggers
nor bars use of the dispute resolution procedures of Labor Code section
4610.5 and
4610.6, but may
be pursued on an optional basis: $1,000.
(5) For the failure to timely provide
information requested by the Administrative Director under section
9792.10.3(b):
$500.00 for each day the response is untimely under section
9792.10.3(c), up
to a maximum of $5,000.00.
(6) For
the failure to timely provide all information required by section
9792.10.5(a) and
(c): $500.00 for each day the response is
untimely up to a maximum of $5,000.00.
(7) For the failure to authorize services
found to be medically necessary by the independent medical review organization
in the final determination issued under section
9792.10.6 within either five (5)
business days of receipt of the determination, or sooner if appropriate for the
employee's medical condition, or five (5) business days from the date the
determination is final, if an appeal of the determination has been filed under
Labor Code section
4610.6(h):
$1,000.00 for each day up to a maximum of $5,000.00.
(8) For the failure to reimburse for services
already rendered that has been found to be medically necessary by the
independent medical review organization in the final determination issued under
section 9792.10.6 within twenty (20) days
after receipt of the final determination, or within twenty (20) days from the
date the determination is final if an appeal of the determination has been
filed under Labor Code section
4610.6(h),
subject to resolution of any remaining issue of the amount of payment pursuant
to Labor Code sections
4603.2 to
4603.6,
inclusive: $500.00 for each day up to a maximum of $5,000.00
(9) For the failure to timely pay an invoice
sent from the designated independent medical review organization under section
9792.10.8(c):
$250.
(d) The
Administrative Director, or his or her designee, may assess both an
administrative penalty under either Labor Code sections
4610.5 and
4610.6, and a
civil penalty under Labor Code section
129.5(e),
based on the same violation(s).
(e)
The penalty amounts specified for violations under this section may, in the
discretion of the Administrative Director, be reduced after consideration of
the factors set out in section
of Title
89792.13 of Title 8 of the California Code of
Regulations. Failure to abate a violation found under section
9792.12(b)(4) and
(b)(5), in the time period or in a manner
consistent with that specified by the Administrative Director, or his or her
designee, shall result in the assessment of the full original penalty amount
proposed by the Administrative Director for that violation.
1. New
section filed 6-7-2007; operative 6-7-2007 pursuant to Government Code section
11343.4 (Register 2007, No. 23).
2. Amendment of section heading and
subsections (a), (a)(7) and (a)(9), new subsections (a)-(18)-(25), amendment of
subsections (b)(4)(A), (b)(4)(C)-(E), (b)(5)(A)-(B) and (b)(5)(D), repealer of
subsection (b)(5)(E), subsection relettering, amendment of subsection (b)(5)(G)
and amendment of NOTE filed 12-31-2012 as an emergency; operative 1-1-2013
pursuant to Government Code section 11346.1(d) (Register 2013, No. 1). A
Certificate of Compliance must be transmitted to OAL by 7-1-2013 or emergency
language will be repealed by operation of law on the following
day.
3. Amendment of section heading and subsections (a), (a)(7) and
(a)(9), new subsections (a)-(18)-(25), amendment of subsections (b)(4)(A),
(b)(4)(C)-(E), (b)(5)(A)-(B) and (b)(5)(D), repealer of subsection (b)(5)(E),
subsection relettering, amendment of newly designated subsection (b)(5)(F) and
amendment of NOTE refiled 7-1-2013 as an emergency; operative 7-1-2013
(Register 2013, No. 27). A Certificate of Compliance must be transmitted to OAL
by 9-30-2013 or emergency language will be repealed by operation of law on the
following day.
4. Amendment of section heading and subsections (a),
(a)(7) and (a)(9), new subsections (a)-(18)-(25), amendment of subsections
(b)(4)(A), (b)(4)(C)-(E), (b)(5)(A)-(B) and (b)(5)(D), repealer of subsection
(b)(5)(E), subsection relettering, amendment of newly designated subsection
(b)(5)(F) and amendment of NOTE refiled 9-30-2013 as an emergency; operative
10-1-2013 (Register 2013, No. 40). A Certificate of Compliance must be
transmitted to OAL by 12-30-2013 or emergency language will be repealed by
operation of law on the following day.
5. Certificate of Compliance
as to 9-30-2013 order, including amendment of section and NOTE, transmitted to
OAL 12-30-2013 and filed 2-12-2014; amendments effective 2-12-2014 pursuant to
Government Code section 11343.4(b)(3) (Register 2014, No.
7).
Note: Authority cited: Sections
133, 4610, 4610.5, 4610.6 and
5307.3, Labor Code. Reference: Sections 129, 129.5,
4062,
4600, 4600.4, 4604.5, 4610, 4610.5,
4610.6 and 4614, Labor Code.
