What the statutes mean

The Necessity of Treatment Dispute process was created in the early 90’s to deal with biased IME decisions rendered by worker’s compensation carriers. Instead of decisions by medical doctors, nurses or individuals without health care backgrounds, this process guarantees that the final review will be done by a chiropractor appointed by the state.

Employers do not necessary need a worker’s compensation carrier. The law allows an employer to be self insured for worker’s compensation claims. Self insured employers, however, must follow the same statutes and rules as WC carriers. In order to use the Necessity of Treatment Dispute Process, both the treating chiropractor and the worker’s compensation carrier have to follow specific procedures. Before describing the procedures it is important to note the following:

• Once a worker’s compensation carrier has accepted liability for a case, a chiropractor may never charge a patient or their group health carrier for services related to the WC injury. The determining factor as to when the WC injury ends is the written documentation of the chiropractor. Until the chiropractor’s notes state that the patient has reached maximum chiropractic improvement or that the patient has returned to their pre-injury status, all charges must be made to the WC carrier.

• A chiropractor does not have to use the Necessity of Treatment Dispute process. However, once a case has been submitted for review a chiropractor is bound by the final decision of the Worker’s Compensation Division.

• The necessity of treatment rules only cover those instances when a WC carrier pays nothing (0) for a service. If they merely pay less than the chiropractor charged for the service the chiropractor may have a right to appeal the decision based on the “Reasonableness of Fee Dispute Process” (please see index).

Do these rules apply if liability is at issue?

No. Perhaps the biggest WC error made by chiropractors and their staff is assuming the carrier is automatically liable just because a patient reports that their injury occurred as a result of their job. A claim is not a worker’s compensation claim until the WC carrier or employer accepts liability for the injury. Delaying the acceptance of liability is a strategy that unprofessional WC carriers use regardless of the circumstances surrounding the injury.

WC carriers that use unnecessary delays as part of their strategy hope that insured workers will not take the time to understand their rights or, that they will be able to intimidate them. If a worker is injured as a result of their employment and the WC carrier refuses to accept liability for the injury the injured worker is entitled to immediately request a hearing before an administrative law judge (ALJ). The hearing is more like a meeting than a trial. The ALJ will listen to the insurance company and the injured worker. If necessary, the employer or doctor will also be asked for information. Then the ALJ decides if the injury was the result of the employees’ work.

Intimidation can be blatant as in the case of the WC carrier that accuses the injured worker of fraud or, more subtle, as in the case of a carrier that teams up with an employer to put pressure on the injured worker to report the claim to group health in order to keep their safety record intact. Either type of intimidation is wrong because it can deny the injured worker of important rights including time off of work and long term disability. An injured worker has every right to expect the WC carrier to pay for all care related to the injury.

What notice must a worker’s compensation carrier give to a chiropractor is it disputes the necessity of any of the care that was provided to the injured worker?

When may a chiropractor file for a default order from DWD?

An insurer or self-insured employer is required to pay a chiropractor within 60 days for a worker’s compnesation claim or provide them notice as described in the above chart. If they provide the notice after the 60-day period, the chiropractor may immediately request DWD to issue a default order requiring the insurer or self-insured employer to pay the full amount in dispute.

There is a major exception. The WC carrier is allowed all the time they need to investigate whether or not they are liable for the injury. While they are theoretically required to tell you, in writing, that they need more than 60 days to complete their investigation; the state generally accepts a late explanation. There are two methods to limit your financial risk. The first is to be in continuous contact with the WC carrier. The second is to collect from the patient or their group health carrier until liability is accepted. At the point liability is accepted all payments must be immediately refunded to the patient or group health carrier. The WC carrier is then billed for the services.

If a WC carrier refuses to pay for care because it claims it was not “medically necessary”, what must a chiropractor do before they are allowed to file a “Necessity of Treatment Dispute”?

After receiving notice from the insurer or self-insured employer

the chiropractor must:

• Write to the WC carrier DWD and explain why the treatment was necessary to cure and relieve the effects of the injury. The letter must include a diagnosis of the condition for which treatment was provided.

• The letter must be sent at least 30 days prior to filing a dispute with DWD.

• The letter should state that you are appealing their decision and that you intend to file a “Necessity of Treatment Dispute with DWD if the case is not resolved satisfactorily.

• You improve your chances of winning the appeal and/or the dispute by providing a plain English narrative along with a copy of your clinical documentation. The narrative is most effective if each point that is clearly indexed to the appropriate section of the clinical documentation.

Within 30 days from the date you send your letter the WC carrier or self-insured employer must notify you whether or not it accepts your explanation regarding the necessity of treatment. If they accept your explanation, your fee must be paid within 30 days.

What must be sent to the Department of Workforce Development (DWD) when filing a “Necessity of Treatment Dispute” and how does DWD handle the request?

Within 9 months of the final correspondence with the WC carrier or self insured employer in which they refused to pay for care because it was not “medically necessary,” a chiropractor must send all of the following to DWD.

• A properly completed Necessity of Treatment Form.

• A copy of all of the correspondence related to the dispute.

• A copy of all of the clinical documentation related to the case

At the same time it files the application for the dispute, with DWD, the chiropractor must also send the insurer or self-insured employer a copy of all of the materials submitted to DWD.

When DWD recieves the application for the dispute, it notifies the WC carrier or self insured employer that is has 20 days to either pay the bill in full for the treatment in dispute or to file an answer. The carrier or self insured employer also supplies DWD with a copy of all of the correspondence relating to the dispute and any other material that responds to the chiropractor’s application. Their answer must include the name of the organization and the credentials of any individual whose review of the case has been relied upon in reaching the decision to deny payment.

Expert review process

After it receives all of the records from both parties, DWD provides a copy of all of the materials to a chiropractic expert that DWD employs who will prepare a written opinion on the necessity of treatment in the case.

• The expert reviewer must be licensed to practice in Wisconsin.

• When it is necessary the expert may contact the chiropractor, the WC carrier, or the self-insured employer for clarification of issues raised in any of the written materials that have been submitted. This most often involves the clarification of clinical issues. When the contact is in writing, the expert must provide the WC carrier and all the doctors with a copy of the request for clarification and a copy of any responses he or she receives. Where the contact is by phone, the expert must arrange a conference call to give the WC carrier and the doctor an opportunity to participate simultaneously.

• Within 90 days of receiving the material from DWD, the expert must provide DWD with his or her written opinion regarding the necessity of treatment, including a recommendation regarding how much of the chiropractor’s bill the insurer or self-insurer should pay. At the same time that it provides an opinion to DWD, the expert must send a copy of the opinion to the chiropractor and the WC carrier or self-insured employer.

• The chiropractor, WC carrier or self-insured employer has 30 days from the date the expert’s opinion is received by DWD to present written evidence to DWD that the expert’s opinion is in error. Unless DWD receives clear and convincing written evidence that the opinion is in error, it must adopt the written opinion of the expert as their determination on the issues covered in the written opinion. Clear and convincing evidence has specific evidentiary meaning and for all practical purposes means the decision of the expert is final unless he or she has made a grievous error.

• If the necessity of treatment dispute involves a claim for which an application for hearing is filed or an injury for which the carrier or self insured employer disputes their liability, the extent of the disability, or other issues, DWD may delay resolution of the necessity of treatment dispute until a hearing is held or an order is issued resolving the dispute.

• The first time a chiropractor uses the Necessity of Treatment Dispute Process DWD must charge the insurer or self-insured employer the full cost of the expert review regardless who wins the dispute. After the first dispute, DWD charges the full cost of obtaining the experts opinion to the losing party.

• In addition to a chiropractor’s right to submit a dispute to DWD, DWD may initiate resolution of a dispute on necessity of treatment when requested to do so by an injured worker, an insurer or a self-insured employer. DWD must notify the insurer or self-insured employer of its intention to initiate the dispute resolution process and must direct them to provide information necessary to resolve the dispute. DWD must allow up to 60 days for the parties to respond, but may extend the response period at the request of either party.

What are the qualifications to serve on DWD’s expert panels?

DWD has the authority to establish expert panels to determine necessity of treatment dispute issues. They also have the authority to set the terms and conditions for membership

on the panel. In making appointments to a panel DWD must consider:

• An individuals training and experience, including the number of years of practice the individual has been in practice, the extent to which the individual currently derives his or her income from an active practice and, certification by boards or other organizations.

• The recommendation of organizations that regulate or promote professional standards in the discipline for which the panel is being created.

• Any other factors that DWD may determine are relevant to an individual’s ability to serve fairly and impartially as a member of an expert panel.

Must a WC carrier or self insured employer pay interest on late payments?

Yes. In the case of late payment, the insurer or self-insured employer must pay simple interest on the late payment amount at the annual rate of 12 percent, from the day after the 30-day period lapses to the date of actual payment to the provider.

DWD 80.73 Health service necessity of treatment dispute resolution process.

(1) Purpose. The purpose of this section is to establish the procedures and requirements for resolving a dispute under s. 102.16 (2m), Stats., between a health service provider and an insurer or self-insurer over the necessity of treatment rendered by a provider to an injured worker.

(2) Definitions. In this section:

(a) Dispute means a disagreement between a provider and an insurer or self-insurer over the necessity of treatment rendered to an injured worker where the insurer or self-insurer refuses to pay part or all of the providers bill.

(b) Expert means a person licensed to practice in the same health care profession as the individual health service provider whose treatment is under review, and who provides an opinion on the necessity of treatment rendered to an injured worker for an impartial health care services review organization or as a member of an independent panel established by the department.

(c) Licensed to practice in the same health care profession means licensed to practice as a physician, psychologist, chiropractor, podiatrist or dentist.

(d) Provider includes a hospital, physician, psychologist, chiropractor, podiatrist, or dentist, or another licensed medical practitioner who provides treatment ordered by a physician, psychologist, chiropractor, podiatrist or dentist whose order of treatment is subject to review.

(e) Review organization or impartial health care services review organization means a public or private entity not owned or operated by, or regularly doing medical reviews for, any insurer, self-insurer, or provider, and which, for a fee, can provide expert opinions regarding the necessity of treatment provided to an injured worker.

(f) Self-insurer means an employer who has been granted an exemption from the duty to insure under s. 102.28 (2), Stats. (g) Treatment means any procedure intended to cure and relieve an injured worker from the effects of an injury under s. 102.42, Stats.

(3) Notice to the provider.

(a) An insurer or self-insurer which refuses to pay for treatment rendered to an injured worker because it disputes that the treatment is necessary shall, in a case where liability or the extent of liability is not an issue, give the provider written notice within 60 days of receiving a bill which documents the treatment provided to the worker. The notice shall specify:

1. The name of the patient-employe;
2. The name of the employer on the date of injury;
3. The date of the treatment in dispute;
4. The amount charged for the treatment and the amount in dispute;
5. The reason that the insurer or self-insurer believes the treatment was unnecessary, including the organization and credentials of any person who provides supporting medical documentation;
6. The providers right to initiate an independent review by the department within 9 months under sub. (6), including a description of how costs will be assessed under sub.(8);
7. The address to use in directing correspondence to the insurer or self-insurer regarding the dispute; and
8. That pursuant to s. 102.16 (2m) (b), Stats., once the notice required by this subsection is received by a provider, the provider may not collect a fee for the disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

(b) At the request of an insurer or self-insurer, the department may extend the 60-day period in par. (a) where the insurer or self-insurer is unable to obtain the supporting medical documentation within the 60-day period, or where the department determines other extraordinary circumstances justify an extension.

(c) Except as provided in par. (b), if an insurer or self-insurer

provides the notice after the 60-day period, the provider may immediately request the department to issue a default order requiring the insurer or self-insurer to pay the full amount in dispute.

(4) Notice to the insurer or self-insurer. After receiving notice from the insurer or self-insurer under sub. (3) and, except as provided in sub. (3) (b) and (c), at least 30 days prior to submitting a dispute to the department, the provider shall explain to the insurer or self-insurer in writing why the treatment was necessary to cure and relieve the effects of the injury, including a diagnosis of the condition for which treatment was provided.

(5) Response by the insurer or self-insurer. (a) Within 30 days from the date on which the provider sent or delivered notice under sub. (4), an insurer or self-insurer shall notify the provider whether or not it accepts the providers explanation regarding necessity of treatment. (b) If the insurer or self-insurer accepts the providers explanation, the providers fee must be paid in full, or in an amount mutually agreed to by the provider and insurer or self-insurer, within the 30-day period specified in par. (a). In the case of late payment, the insurer or self-insurer shall pay simple interest on the amount mutually agreed upon at the annual rate of 12 percent, from the day after the 30-day period lapses to the date of actual payment to the provider.

(6) Submitting disputes to the department.

(a) For the department to determine whether or not treatment was necessary under s. 102.16 (2m), Stats., a provider shall, after the 30-day notice period in sub. (4) has elapsed, apply to the department in writing to resolve the dispute. The provider shall apply to the department within 9 months from the date it receives notice under sub. (3) from the insurer or self-insurer refusing to pay the providers bill.

(b) The providers application to the department shall include copies of all correspondence related to the dispute.

(c) At the time it files the application with the department, the provider shall send or deliver to the insurer or self-insurer which is refusing to pay for the treatment in dispute a copy of all materials submitted to the department.

(d) When an application to resolve a dispute is submitted, the department shall notify the insurer or self-insurer that it has 20 days to either pay the bill in full for the treatment in dispute or to file an answer under par. for the department to use in the review process in sub. (7).

(e) The answer shall include copies of any prior correspondence relating to the dispute which the provider has not already filed, and any other material which responds to the providers application. The answer shall include the name of the organization, and credentials of any individual, whose review of the case has been relied upon in reaching the decision to deny payment.

(f) The department may develop and require the use of forms to facilitate the exchange of information. For information regarding forms contact the workers compensation division, medical cost dispute unit, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707.

(7) Review process.

(a) After the 20-day period in sub. (6) (d) for the insurer or self-insurer to answer has passed, the department shall provide a copy of all materials in its possession relating to a dispute to an impartial health care services review organization, or to an expert from a panel of experts established by the department, to obtain an expert written opinion on the necessity of treatment in dispute.

(b) In all cases where the dispute involves a Wisconsin provider, the expert reviewer shall be licensed to practice in Wisconsin.

(c) When necessary to provide a fair and informed decision, the expert may contact the provider, insurer or self-insurer for clarification of issues raised in the written materials. Where the contact is in writing, the expert shall provide all parties to the dispute with a copy of the request for clarification and a copy of any responses received. Where the contact is by phone, the expert shall arrange a conference call giving all parties an opportunity to participate simultaneously.

(d) Within 90 days of receiving the material from the department under par. (a), the review organization or panel shall provide the department with the experts written opinion regarding the necessity of treatment, including a recommendation regarding how much of the providers bill the insurer or self-insurer should pay, if any. At the same time that it provides an opinion to the department, the review organization or panel on which the expert serves shall send a copy of the opinion to the provider and the insurer or self-insurer which are parties to the dispute.

(e) The provider, insurer or self-insurer shall have 30 days from the date the experts opinion is received by the department under par. (f) to present written evidence to the department that the experts opinion is in error. Unless the department receives clear and convincing written evidence that the opinion is in error, the department shall adopt the written opinion of the expert as the departments determination on the issues covered in the written opinion.

(f) If the necessity of treatment dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of the disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the necessity of treatment dispute until a hearing is held or an order is issued resolving the dispute between the injured employe and the insurer or self-insurer.

(8) Payment of costs.

(a) The department shall charge the insurer or self-insurer the full cost of obtaining the written opinion of the expert for the first dispute involving the necessity of treatment rendered by an individual provider, unless the department determines the providers position in the dispute is frivolous or based on fraudulent representations.

(b) In a subsequent dispute involving the same provider, the department shall charge the full cost of obtaining the experts opinion to the losing party.

(c) Any time prior to the departments order determining the necessity of treatment, the department shall dismiss the application if the provider and insurer or self-insurer mutually agree on the necessity of treatment and the payment of any costs incurred by the department related to obtaining the expert opinion.

(9) Department initiative. In addition to the providers right to submit a dispute to the department under sub. (6), the department may initiate resolution of a dispute on necessity of treatment when requested to do so by an injured worker, an insurer or a self-insurer. The department shall notify the insurer or self-insurer of its intention to initiate the dispute resolution process and shall direct them to provide information necessary to resolve the dispute. The department shall allow up to 60 days for the parties to respond, but may extend the response period at the request of either party.

(10)Expert panels. The department may establish one or more panels of experts in one or more treating disciplines, and may set the terms and conditions for membership on any panel. In making appointments to a panel the department shall consider:

(a) An individuals training and experience, including:

1. The number of years of practice in a particular discipline;
2. The extent to which the individual currently derives his or her income from an active practice in a particular discipline; and,
3. Certification by boards or other organizations;

(b) The recommendation of organizations that regulate or promote professional standards in the discipline for which the panel is being created; and,

(c) Any other factors that the department may determine are relevant to an individual’s ability to serve fairly and impartially as a member of an expert panel.