Current through Register Vol. 63, No. 3, March 1, 2024
(1)
General.
(a) An independent
medical exam (IME) means any medical exam (including a physical capacity or
work capacity evaluation or consultation that includes an exam) that is
requested by the insurer under ORS
656.325,
except as provided in section (13) of this rule. A worker requested medical
exam (WRME) is an exam available to a worker under ORS
656.325.
An IME or WRME is completed by a medical service provider other than the
worker's attending physician or authorized nurse practitioner.
(b) The insurer may obtain three IMEs for
each opening of the claim without authorization by the director. These IMEs may
be obtained before or after claim closure. For the purpose of determining the
number of IMEs, any IME scheduled but not completed does not count as one of
the three IMEs. A claim for aggravation, Board's Own Motion, or reopening of a
claim when the worker becomes enrolled or actively engaged in training under
OAR 436-120 (Vocational Assistance to Injured Workers) allows a new series of
three IMEs. Refer to section (12) of this rule to request additional
IMEs.
(c) The IME may be conducted
by one or more providers of different specialties, generally performed at one
location. If the providers are not at one location, the IME must be at
locations reasonably convenient to the worker. IMEs completed within a 72-hour
period count as one IME.
(d) The
insurer must choose the medical service provider from the director's list of
authorized IME providers online at
www.oregonwcdoc.info. If a provider is not
on the director's list of authorized IME providers at the time of the IME, the
insurer may not use the IME report and the report may not be used in any
subsequent proceedings.
(e) The
provider will determine the conditions under which the IME will be conducted.
The IME should be performed in a professional setting that is primarily used
for conducting exams. If an IME is not performed in a professional setting that
is primarily used for conducting exams, the IME location should be a safe and
secure environment, including a place for the worker to disrobe in private, and
allow for confidentiality.
(f) IMEs
must be scheduled at times and intervals reasonably convenient to the worker
and must not delay or interrupt medical treatment that the worker has
scheduled.
(g) The insurer must
comply with the notification and reimbursement requirements under OAR
436-009-0025 and 436-060-0095.
(h)
A medical service provider must not unreasonably interfere with the right of
the insurer to obtain an IME by a medical service provider of the insurer's
choice.
(i) A medical provider who
unreasonably fails to provide diagnostic records for an IME under OAR
436-010-0240 may be assessed a penalty under ORS
656.325.
(j) The worker may complete an online survey
at
www.wcdimesurvey.info or make a
complaint about the IME on the division's website. If the worker does not have
access to the Internet, the worker may call the division at
800-452-0288.
(2)
IME and WRME Provider Authorization and Removal.
(a) Medical service providers can perform
IMEs, WRMEs, or both once they are on the director's list of authorized IME
providers.
(b) To be on the
director's list of authorized IME providers, a medical service provider must:
(A) Complete the online application available
at
www.oregonwcdoc.info;
(B) Hold a current license with the
provider's professional regulatory licensing board;
(C) Be in good standing as determined by the
division. For the purpose of this paragraph, the division determines good
standing to mean the provider is not currently, or within the past two years
has not been subject to, a disciplinary action or stipulated agreement with the
provider's regulatory licensing board that the division determines to be
detrimental to performing IMEs; and
(D) Complete the director's Training Guide to
Performing Independent Medical Exams including the corresponding quiz both of
which are available at
www.oregonwcdoc.info; or
(E) Complete a director-approved training
course regarding IMEs provided by an outside vendor.
(c) By submitting the application to the
division, the medical service provider agrees to abide by:
(A) The standards of professional conduct for
performing IMEs adopted by the provider's regulatory licensing board or the IME
standards of professional conduct published in Appendix B [See attached] if the
provider's regulatory licensing board does not have standards of professional
conduct for performing IMEs; and
(B) All relevant workers' compensation laws
and rules.
(d) A provider
may be removed from the director's list of authorized IME providers after the
director finds that the provider:
(A)
Violated the standards of either the professional conduct for performing IMEs
adopted by the provider's regulatory licensing board or the IME standards
published in Appendix B if the provider's regulatory licensing board does not
have IME standards;
(B) Has a
current restriction on their license or is under a current disciplinary action
from their professional regulatory licensing board; or
(C) Has entered into a voluntary agreement
with their regulatory licensing board that the director determines is
detrimental to performing IMEs.
(e) A provider may appeal the director's
decision to remove the provider from the director's list within 60 days of the
mailing date of the order under ORS
656.704(2)
and OAR 436-001-0019.
(3)
IME Complaint Process.
(a) A
complaint about an IME may be submitted to the division for
investigation.
(b) The division
reviews IME complaints to determine the appropriate action under the director's
jurisdiction.
(c) The division
investigates IME complaints to determine if there is a violation of one or more
of the standards of professional conduct or workers' compensation laws or
rules.
(d) If the division
determines additional information is needed the division will contact the IME
provider regarding the allegations in the complaint and request:
(A) A written response regarding the
allegations;
(B) A copy of the IME
report;
(C) Contact information for
scribes, chaperones, or other people attending the IME at the IME provider's
request; or
(D) A copy of a video
or audio recording of the IME, if the IME was recorded.
(e) If the division does not receive a
response to information requested under subsection (d) within 14 days from the
date of the request, the division may make a decision based on available
information.
(f) The division may
contact any person who may have information or view any documentation or items
regarding the IME or complaint.
(g)
The division will notify the IME provider and complainant in writing of the
outcome of the IME investigation.
(h) When investigating a new complaint
regarding an IME provider, the division will review all complaints about that
provider received in the past two years, excluding complaints where the
director found no violation, to determine if there is a pattern of behavior
involving the IME provider. If there is a pattern of behavior, the director may
take additional action, up to and including removal of the provider from the
director's list of authorized IME providers.
(i) An order issued by the director to remove
an IME provider from the director's list of authorized IME providers will
include a notice of appeal rights under ORS
656.704(2)
and OAR 436-001-0019.
(4)
IME Training. An outside vendor may provide initial IME training
to providers wanting to become an IME provider, as long as the training is
approved by the director before it is provided.
(5)
IME Related Forms.
(a) When scheduling an IME, the insurer must
ensure the medical service provider has:
(A)
Form 3923, "Important Information about Independent Medical Exams, "available
to the worker before the exam; and
(B) Form 3227, "Invasive Medical Procedure
Authorization," if applicable.
(b) The IME provider must make Form 3923 with
the attached observer Form 3923A available to the worker.
(6)
IME Observer.
(a) A worker may choose to have an observer
present during the IME. An observer is not allowed to be present during a
psychological examination unless the IME provider approves.
(b) The worker's observer must not be paid to
attend the IME. The worker's attorney or any representative of the worker's
attorney may not be an observer.
(c) If the observer interferes with or
obstructs the IME, the IME provider may ask the observer to leave and continue
the IME with the worker's consent or end the IME.
(d) If the worker chooses to have an observer
present, the provider must verify that the worker has signed Form 3923A, "IME
Observer Form," acknowledging that the worker understands:
(A) The IME provider may ask sensitive
questions during the exam in the presence of the observer;
(B) If the observer interferes with the exam,
the IME provider may stop the exam, which could affect the worker's benefits;
and
(C) The observer must not be
paid to attend the exam.
(7)
Invasive Procedure.
(a) For the purposes of this rule, an
invasive procedure is one that breaks the skin or penetrates, pierces, or
enters the body using a surgical or exploratory procedure (e.g., by a needle,
tube, scope, or scalpel). If an IME provider intends to perform an invasive
procedure, the provider must explain to the worker the risks involved in the
procedure and the worker's right to refuse the procedure. The worker must check
the applicable box on Form 3227, "Invasive Medical Procedure Authorization,"
either agreeing to the procedure or declining the procedure and sign the form.
The IME provider must make a copy of the signed Form 3227 for the worker and
send the original to the insurer.
(b) An IME provider may be sanctioned under
OAR 436-010-0340(1) for failing to follow this section.
(8)
Recording the IME. With the
IME provider's approval, the worker may use a video camera or other device to
record the IME.
(9)
Objection
to the IME Location. When a worker objects to the location of an IME,
the worker may request review before the director within six business days of
the mailing date of the appointment notice.
(a) The request may be made in-person, by
telephone, fax, email, or mail.
(b)
The director may facilitate an agreement between the parties regarding
location.
(c) If necessary, the
director will conduct an expedited review and issue an order regarding the
reasonableness of the location.
(d)
The director will determine if travel is medically contraindicated or
unreasonable because:
(A) The travel exceeds
limitations imposed by the attending physician, authorized nurse practitioner,
or any medical conditions;
(B)
Alternative methods of travel will not overcome the limitations; or
(C) The travel would impose undue hardship
for the worker that outweighs the right of the insurer to select an IME
location of its choice.
(10)
Failure to Attend an IME.
If the worker fails to attend an IME and does not notify the insurer before the
date of the IME or does not have sufficient reason for not attending the IME,
the director may impose a monetary penalty against the worker for failure to
attend.
(11)
IME
Report.
(a) After the IME is complete,
the IME provider must send the insurer a report that includes, but is not
limited to the following:
(A) Clear and
accurate documentation of all tests performed;
(B) Who performed the IME;
(C) Who dictated the report;
(D) A signed quality assurance statement
acknowledging that to the best of the IME provider's ability all statements
contained in the report are true and accurate; and
(E) A copy of the observer Form 3923A, the
invasive procedure Form 3227, or both, if applicable.
(b) The IME provider must communicate with
the insurer if the IME provider is unable to provide the report within the
insurer's requested time period and provide a date when the report will be
sent.
(c) The insurer must forward
a copy of the signed report to the attending physician or authorized nurse
practitioner within three business days of the insurer's receipt of the
report.
(12)
Request for Additional IME.
(a)
When the insurer has obtained the three IMEs allowed under section (1) of this
rule, the insurer must request authorization from the director before
scheduling the worker for an additional IME. An insurer that fails to request
authorization from the director may be assessed a civil penalty.
(b) The insurer must submit a request for
authorization to the director for an additional IME by using Form 2333,
"Insurer's Request for Director Approval of an Additional Independent Medical
Examination." The insurer must send a copy of the request to the worker and the
worker's attorney, if represented.
(c) The director will review the request and
determine if additional information from the insurer or the worker is needed.
(A) Upon receiving a written request for
additional information from the director, the parties have 14 days to
respond.
(B) If the parties do not
provide the requested information within the timeframes in paragraph (A), the
director will issue an order approving or disapproving the request based on
available information.
(d) The director, when making a determination
to approve or deny the request for an additional IME, will consider, but is not
limited to, whether:
(A) An IME involving the
same disciplines or review of the same condition has been completed within the
past six months;
(B) There has been
a significant change in the worker's condition;
(C) There is a new condition or compensable
aspect in the claim;
(D) There is a
conflict of medical opinions about a worker's medical treatment, medical
services, impairment, stationary status, or other issues critical to claim
processing or benefits;
(E) The IME
is requested to establish a preponderance for medically stationary
status;
(F) The IME is medically
harmful to the worker, and
(G) The
IME is requested for a condition for which the worker has sought treatment or
services, or the condition has been included in the compensable
claim.
(e) Any party that
disagrees with the director's order to approve or disapprove a request for an
additional IME may request a hearing by the board under ORS
656.283
and OAR chapter 438.
(13)
Other Exams - Not Considered IMEs. The following exams are not
considered IMEs and do not require approval as outlined in section (12) of this
rule:
(a) An exam, including a closing exam,
requested by the worker's attending physician or authorized nurse
practitioner;
(b) An exam requested
by the director;
(c) An elective
surgery consultation requested under OAR 436-010-0250(2)(b);
(d) An exam of a permanently totally disabled
worker required under ORS
656.206(5);
(e) A closing exam that has been arranged by
the insurer at the attending physician's or authorized nurse practitioner's
request; and
(f) An exam requested
by the managed care organization (MCO) for the purpose of clarifying or
refining a plan for continuing medical services as provided under the MCO's
contract.
To view attachments referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
656.726(4)
Statutes/Other Implemented: ORS
656.252,
ORS
656.325,
ORS
656.245,
ORS
656.248,
ORS
656.260
& ORS
656.264