Employers and insurance companies can evaluate the medical necessity of proposed or previously provided medical treatment with a process called utilization review (“UR”).
Section 8.7 of the Illinois Workers’ Compensation Act governs the use of utilization review, which it defines as:
the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards.
The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of nationally recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine based upon standards as provided in this Act.
Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005).
Utilization review programs must be properly registered with the Illinois Department of Insurance. 820 ILCS 305/8.7(b) Illinois General Assembly | IWCC PDF. These organizations must certify compliance with relevant URAC standards or similar standards approved by the Department. You can find a list of approved utilization review organizations (“UROs”) on the Department’s website.
If the claimant’s treating physician has already provided the medical treatment, the utilization review program undertakes a “retrospective review,” which the Act requires must be based “solely on the medical information available to the attending physician or ordering provider at the time the health care services were provided.” 820 ILCS 305/8.7(e) Illinois General Assembly | IWCC PDF.
Medical providers are required to submit to the utilization review process once invoked:
Upon receipt of written notice that the employer or the employer’s agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines.
The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer’s agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome.
Copies of utilization review decisions must be provided to the medical and employee:
Written notice of utilization review decisions, including the clinical rationale for certification or non-certification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee.
820 ILCS 305/8.7(i)(2) Illinois General Assembly | IWCC PDF. The evidence-based medical guidelines referred to here include the Official Disability Guidelines (“ODG”) and the American College of Occupational and Environmental Medicine (“ACOEM”) Guidelines.
Denial of Treatment
Section 8.7 provides:
An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section.
If the utilization review denies treatment, the injured worker has a difficult burden to overcome:
When a payment for medical services has been denied or not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of his or her injury.
However, an employer or insurance company might still authorize the treatment due to the claimant’s right to depose the medical professional conducting the utilization review, which can be extremely costly:
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, video conference, 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. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.
If the utilization review finds that treatment is not medically necessary, the employer has legal cover to deny the treatment without likely being subjected to penalties for unreasonable conduct:
When an employer denies payment of or refuses to authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this Section and does not comply with all other requirements of this Section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act.
These utilization review rules and guidelines are designed to limit treatment. Unfortunately, some injured workers are overtreated – at least according to the guidelines – and they can get stuck with the unpaid medical bills.
For example, in Centeno v. Illinois Workers’ Compensation Commission, 2016 IL App (2nd) 150575WC-U Illinois Courts PDF (this order was filed under Supreme Court Rule 23 and cannot be cited as precedent), the claimant suffered a back injury and visited his chiropractor 88 times. The employer sent the bills to utilization review, which found that only 6 visits were medical necessary. Based on the UR denial, the Illinois Workers’ Compensation Commission found that the employer was not required to pay $30,461.68 in medical bills.
These unpaid bills do not disappear and they remain the responsibility of the injured worker to pay. 820 ILCS 305/8.2(e-20) (“Payment for services deemed not covered or not compensable under this Act is the responsibility of the employee unless a provider and employee have agreed otherwise in writing.) Illinois General Assembly | IWCC PDF.
In Tiburzi Chiropractic v. Kline, 2013 IL App (4th) 121113 Google Scholar | Illinois Courts PDF, a chiropractor successfully sued an injured worker for the unpaid bills following a UR denial in his workers’ compensation case.