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The utilization review process, in which an employer may challenge the reasonableness or necessity of the medical treatment of an injured employee, was at issue in County of Allegheny (John J. Kane Center-Ross) and UPMC-Work Partners v. WCAB (Geisler). The Commonwealth Court addressed the relatively common situation in which a medical provider under review failed to provide its records to a utilization review organization (URO), resulting in a determination adverse to the provider. In a case of first impression, the court held that if a peer review report is not prepared because the provider failed to produce medical records to the reviewer –and the URO consequently determines (as required by statute) that treatment is not reasonable or necessary — the workers’ compensation judge (WCJ) lacks subject matter jurisdiction to determine the reasonableness and necessity of the medical treatment, and any subsequently filed petition to review the adverse UR determination must be dismissed. Geisler involved an employee who sustained a compensable back strain in 1987. The employee received weekly indemnity benefits for almost 11 years, until the benefits were suspended in 1998 when the he failed to follow through in good faith with a job offer made by his employer. His medical benefits continued, however, and the employer filed a request for utilization review (UR) of the treatment of one of his providers, John Behm, a family practitioner. In addition to the reasonableness and necessity of office visits, the employer also sought review of Behm’s continued prescription of several drugs, including Celebrex, Oxycontin, Percocet, Ziac, Zoloft and Phenergan. The URO assigned to review by the Bureau of Workers’Compensation requested that Behm provide it with medical records relevant to his treatment of the employee, but Behm did not respond. Following the relevant bureau regulations, the URO did not assign the case to a peer physician for review, but instead issued a determination that the treatment in question was neither reasonable nor necessary based solely upon the doctor’s failure to provide records to the URO. The employee then petitioned for a WCJ’s review of the UR determination. The employer made a motion to dismiss the review petition for lack of subject matter jurisdiction, but the WCJ denied the motion and permitted the case to be litigated to a conclusion. In the end, the WCJ credited Behm’s testimony and found that his treatment was reasonable and necessary. The appeal board affirmed and the employer appealed to the Commonwealth Court, seeking review of the subject matter jurisdiction question. On appeal, the court discussed the history of the utilization review process. In 1993, the General Assembly enacted a comprehensive scheme for controlling the medical costs associated with workers’ compensation, known as Act 44. Utilization review was an integral part of Act 44 and was intended to be a fair, prompt and efficient method of reviewing medical treatment. The UR process gives employers the opportunity to seek review of medical treatment and providers the opportunity to defend their treatment of a claimant. Act 44 requires that the review of a treatment regimen be conducted by a health care professional in the same field. If past or future treatment is ultimately determined to be not reasonable or necessary, the employer is not obligated to pay for it. The utilization review process begins when an employer files with the Bureau of Workers’ Compensation a request for utilization review. The medical provider is named as a party to the proceeding, and the employee and his or her attorney of record are to receive notice of the request for UR. The bureau assigns a URO to coordinate the review, and the URO requests records from the medical provider and assigns a peer reviewer. The peer reviewer reviews the medical treatment and makes a report within 30 days of receiving documents addressing the reasonableness and necessity of the treatment. Timely review is important because an employer’s filing of a request for UR entitles the employer to withhold payment to the provider during the review process. The UR process concludes when the URO mails a copy of the peer reviewer’s report with a cover sheet indicating the peer reviewer’s conclusions to the parties and other persons entitled to notice. The Act 44 UR process is the exclusive way to challenge medical bills. In the past, an employer or insurer could file a petition to review medical treatment directly with a judge. However, since Act 44 was enacted, neither a WCJ nor the appeal board has jurisdiction to determine the reasonableness of medical treatment unless and until utilization review is completed. If the health care provider, employer, employee or insurer disagrees with the determination of the URO, that person may, within 30 days of the URO’s determination, seek review by a WCJ. This hearing before the WCJ is a de novo proceeding. The WCJ is required to consider the peer reviewer’s report as evidence, but the WCJ is not bound by its findings of fact or conclusions as to reasonableness or necessity. Further, according to bureau regulations, “[t]he utilization review report shall be part of the record before the workers’ compensation judge.” The content of a peer reviewer’s written report is prescribed by regulation. Pursuant to 34 Pa. Code � 127.472, the written reports of reviewers “shall contain, at a minimum, the following elements: a listing of the records reviewed; documentation of any actual or attempted contacts with the provider under review; findings and conclusions; and a detailed explanation of the reasons for the conclusions reached by the reviewer, citing generally accepted treatment protocols and medical literature as appropriate.” In Geisler, the court held that the employer requested utilization review in accordance with the above-described process. The URO then properly requested Behm’s records with respect to his treatment of the employee, but Behm did not provide them. Behm’s failure to provide records triggered � 127.464 of the regulations, which requires that “if the provider under review fails to mail records to the URO within 30 days of the date of request of the records, the URO shall render a determination that the treatment under review was not reasonable or necessary.” The regulations further provide that a URO may not assign the request to a peer reviewer in such circumstances. Because Behm did not forward his medical records to the URO, the URO did not assign a peer reviewer to examine the reasonableness or necessity of his treatment, and the URO issued a determination under � 127.464 that Behm’s treatment was not reasonable or necessary without a report containing the elements prescribed in the regulations. The Commonwealth Court agreed with the employer’s argument that the determination of the URO was “final, binding and nonreviewable,” further holding that it was error for the WCJ to conduct a hearing on the URO determination. The court reasoned that, although a WCJ is not bound by a reviewer’s report, there must be a report in the record in order for the de novo hearing to take place. Utilization review under Act 44 is a mandatory first step in determining whether a provider’s treatment is reasonable and necessary, and that first step did not occur in this instance. In clear language, the court held “that if a report by a peer physician is not prepared because the provider has failed to produce medical records to the reviewer, the WCJ lacks jurisdiction to determine the reasonableness and necessity of medical treatment. To hold otherwise would allow a provider to do indirectly what cannot be done directly: Confer jurisdiction on the WCJ without following the mandatory utilization review.” Although limited in its scope, the holding in Geisler will have great impact. There are undoubtedly hundreds of review petitions currently pending before WCJs in Pennsylvania where the provider, like Behm, simply ignored the request of the URO for records. Until now, WCJs routinely permitted the review petitions to go forward. Indeed, such cases were often seen as situations sympathetic to the employee because the treatment at issue was never truly peer reviewed, yet the employer was relieved of paying for that treatment, at least until the review petition was decided. After Geisler, employers will not be responsible for payment for treatment by providers who lose a UR because of a failure to participate in the UR process. If the UR request sought review of future treatment, the employer may never again be responsible for payment of that provider’s bills. Claimants may have to seek treatment with a different provider, or seek other types of treatment different from that which was the subject of the UR. Claimants’ counsel would be well advised to become more involved in the UR process (if they are aware of it) at the beginning to ensure that their clients’providers are abiding by the mandates of Act 44 and its regulations. Defense counsel should, of course, move to dismiss any UR review petitions currently pending where the provider under review failed to timely provide its records to the URO. Admittedly, the res judicata effect of a UR determination based solely upon a provider’s failure to cooperate in the UR process may be debatable. For example, employers and insurers will want to take the position that a UR determination finding that future physical therapy treatment is unreasonable/unnecessary forever bars a claimant from seeking such treatment in the future without paying for it themselves. Claimants will argue that the UR decision based upon a provider’s failure to respond was never “fully litigated” and, in any case, was never decided by a judge. Employers and insurers should, nonetheless, be on the lookout for bills submitted for similar treatment by the same or other providers in the future, and consider rejecting them based upon the favorable UR determination. Matthew S. Wynn is a shareholder at Littler Mendelson’s Philadelphia office and heads the firm’s Pennsylvania workers’compensation practice group. He is the defense co-chairman of the workers’ compensation section of the Philadelphia Bar Association and has represented employers, insurers and third-party administrators in workers’ compensation litigation since 1991. He can be contacted via e-mail at [email protected] or via telephone at 267-402-3015.

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