The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION DIVISION










 

DIVISION 10
MEDICAL SERVICES

436-010-0001
Administration of These Rules
(1) Any orders issued by the division
in carrying out the director’s authority to enforce ORS chapter 656 and OAR
chapter 436, are considered orders of the director.
(2) Authority for Rules.
These rules are promulgated under the director’s general rulemaking authority
of ORS 656.726(4) for administration of and pursuant to ORS Chapter 656, particularly:
656.245, 656.248, 656.250, 656.252, 656.254, 656.256, 656.260, 656.268, 656.273,
656.313, 656.325, 656.327, 656.331, 656.704, and 656.794.
(3) Purpose. The purpose
of these rules is to establish uniform guidelines for administering the delivery
of and payment for medical services to workers within the workers’ compensation
system.
(4) Applicability of Rules.
(a) These rules apply on
or after the effective date to carry out the provisions of ORS 656.245, 656.247,
656.248, 656.250, 656.252, 656.254, 656.256, 656.260, 656.268, 656.313, 656.325,
656.327, 656.331, 656.704, and 656.794, and govern all providers of medical services
licensed or authorized to provide a product or service under ORS Chapter 656.
(b) The director may waive
procedural rules as justice requires, unless otherwise obligated by statute.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.245,
656.248, 656.250, 656.252, 656.254, 656.256, 656.260, 656.268, 656.273, 656.313,
656.325, 656.327, 656.331, 656.704, 656.794
Hist.: WCB 1-1972, f. &
ef. 1-14-72; WCB 4-1976, f. 10-20-76, ef. 11-1-76; WCD 7-1978(Admin), f. & ef.
6-5-78; WCD 2-1980(Admin), f. 1-28-80, ef. 2-1-80; WCD 5-1982(Admin), f. 2-23-82,
ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; WCD 2-1985(Admin), f. 4-29-85,
ef. 6-3-85; Renumbered from 436-069-0003, 5-1-85; WCD 12-1990(Temp), f. 6-20-90,
cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f.
6-11-92, cert. ef. 7-1-92; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96; WCD 11-1998,
f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 5-2015,
f. 8-20-15, cert. ef. 10-1-15
436-010-0005
Definitions
(1) Unless a term is specifically defined
elsewhere in these rules or the context otherwise requires, the definitions of ORS
chapter 656 are hereby incorporated by reference and made part of these rules.
(2) “Administrative
review” means any decision making process of the director requested by a party
aggrieved with an action taken under these rules except the hearing process described
in OAR 436-001.
(3) “Attending physician”
has the same meaning as described in ORS 656.005(12)(b). See Appendix A “Matrix
for Health Care Provider Types.”
(4) “Authorized nurse
practitioner” means a nurse practitioner licensed under ORS 678.375 to 678.390
who has certified to the director that the nurse practitioner has reviewed informational
materials about the workers’ compensation system provided by the director
and who has been assigned an authorized nurse practitioner number by the director.
(5) “Board” means
the Workers’ Compensation Board and includes its Hearings Division.
(6) “Chart note”
means a notation made in chronological order in a medical record in which the medical
service provider records information such as subjective and objective findings,
diagnosis, treatment rendered, treatment objectives, and return-to-work goals and
status.
(7) “Come-along provider”
means a primary care physician, chiropractic physician, or an authorized nurse practitioner
who is not a managed care organization (MCO) panel provider and who continues to
treat the worker when the worker becomes enrolled in an MCO. (See OAR 436-015-0070.)
(8) “Date stamp”
means to stamp or display the initial receipt date and the recipient’s name
on a paper or electronic document, regardless of whether the document is printed
or displayed electronically.
(9) “Days” means
calendar days.
(10) “Direct control
and supervision” means the physician is on the same premises, at the same
time, as the person providing a medical service ordered by the physician. The physician
can modify, terminate, extend, or take over the medical service at any time.
(11) “Direct medical
sequela” means a condition that is clearly established medically and originates
or stems from an accepted condition. For example: The accepted condition is low
back strain with herniated disc at L4-5. The worker develops permanent weakness
in the leg and foot due to the accepted condition. The weakness is considered a
“direct medical sequela.”
(12) “Division”
means the Workers’ Compensation Division of the Department of Consumer and
Business Services.
(13) “Eligible worker”
means a worker who has filed a claim or who has an accepted claim and whose employer
is located in an MCO’s authorized geographical service area, covered by an
insurer that has a contract with that MCO.
(14) “Enrolled”
means an eligible worker has received notification from the insurer that the worker
is being required to treat under the provisions of a managed care organization (MCO).
However, a worker may not be enrolled who would otherwise be subject to an MCO contract
if the worker’s primary residence is more than 100 miles outside the managed
care organization’s certified geographical service area.
(15) “Health care practitioner
or health care provider” has the same meaning as a “medical service
provider.”
(16) “Hearings Division”
means the Hearings Division of the Workers’ Compensation Board.
(17) “Home health care”
means necessary medical and medically related services provided in the patient’s
home environment. These services may include, but are not limited to, nursing care,
medication administration, personal hygiene, or assistance with mobility and transportation.
(18) “Hospital”
means an institution licensed by the State of Oregon as a hospital.
(19) “Initial claim”
means the first open period on the claim immediately following the original filing
of the occupational injury or disease claim until the worker is first declared to
be medically stationary by an attending physician or authorized nurse practitioner.
For nondisabling claims, the “initial claim” means the first period
of medical treatment immediately following the original filing of the occupational
injury or disease claim ending when the attending physician or authorized nurse
practitioner does not anticipate further improvement or need for medical treatment,
or there is an absence of treatment for an extended period.
(20) “Insurer”
means the State Accident Insurance Fund Corporation; an insurer authorized under
ORS chapter 731 to transact workers’ compensation insurance in the state;
or, an employer or employer group that has been certified under ORS 656.430 that
meets the qualifications of a self-insured employer under ORS 656.407.
(21) “Interim medical
benefits” means those services provided under ORS 656.247 on initial claims
with dates of injury on or after January 1, 2002 that are not denied within 14 days
of the employer’s notice of the claim.
(22) “Mailed or mailing
date” means the date a document is postmarked. Requests submitted by facsimile
or “fax” are considered mailed as of the date printed on the banner
automatically produced by the transmitting fax machine. Hand-delivered requests
will be considered mailed as of the date stamped by the Workers’ Compensation
Division. Phone or in-person requests, where allowed under these rules, will be
considered mailed as of the date of the request.
(23) “Managed care
organization” or “MCO” means an organization formed to provide
medical services and certified in accordance with OAR chapter 436, division 015.
(24) “Medical evidence”
includes, but is not limited to: expert written testimony; written statements; written
opinions, sworn affidavits, and testimony of medical professionals; records, reports,
documents, laboratory, X-ray and test results authored, produced, generated, or
verified by medical professionals; and medical research and reference material used,
produced, or verified by medical professionals who are physicians or medical record
reviewers in the particular case under consideration.
(25) “Medical provider”
means a medical service provider, a hospital, a medical clinic, or a vendor of medical
services.
(26) “Medical service”
means any medical treatment or any medical, surgical, diagnostic, chiropractic,
dental, hospital, nursing, ambulances, or other related services; drugs, medicine,
crutches, prosthetic appliances, braces, and supports; and where necessary, physical
restorative services.
(27) “Medical service
provider” means a person duly licensed to practice one or more of the healing
arts.
(28) “Medical treatment”
means the management and care of a patient for the purpose of combating disease,
injury, or disorder. Restrictions on activities are not considered treatment unless
the primary purpose of the restrictions is to improve the worker’s condition
through conservative care.
(29) “Parties”
mean the worker, insurer, MCO, attending physician, and other medical provider,
unless a specific limitation or exception is expressly provided for in the statute.
(30) “Patient”
means the same as worker as defined in ORS 656.005(30).
(31) “Physical capacity
evaluation” means an objective, directly observed, measurement of a worker’s
ability to perform a variety of physical tasks combined with subjective analyses
of abilities by worker and evaluator. Physical tolerance screening, Blankenship’s
Functional Capacity Evaluation, and Functional Capacity Assessment have the same
meaning as Physical Capacity Evaluation.
(32) “Physical restorative
services” means those services prescribed by the attending physician or authorized
nurse practitioner to address permanent loss of physical function due to hemiplegia
or a spinal cord injury, or to address residuals of a severe head injury. Services
are designed to restore and maintain the patient’s highest functional ability
consistent with the patient’s condition.
(33) “Report”
means medical information transmitted in written form containing relevant subjective
or objective findings. Reports may take the form of brief or complete narrative
reports, a treatment plan, a closing examination report, or any forms as prescribed
by the director.
(34) “Residual functional
capacity” means a patient’s remaining ability to perform work-related
activities. A residual functional capacity evaluation includes, but is not limited
to, capability for lifting, carrying, pushing, pulling, standing, walking, sitting,
climbing, balancing, bending/stooping, twisting, kneeling, crouching, crawling,
and reaching, and the number of hours per day the patient can perform each activity.
(35) “Specialist physician”
means a licensed physician who qualifies as an attending physician and who examines
a patient at the request of the attending physician or authorized nurse practitioner
to aid in evaluation of disability, diagnosis, or provide temporary specialized
treatment. A specialist physician may provide specialized treatment for the compensable
injury or illness and give advice or an opinion regarding the treatment being rendered,
or considered, for a patient’s compensable injury.
(36) “Work capacity
evaluation” means a physical capacity evaluation with special emphasis on
the ability to perform a variety of vocationally oriented tasks based on specific
job demands. Work Tolerance Screening has the same meaning as Work Capacity Evaluation.
[Publications: Publications referenced
are available from the agency.]

[ED. NOTE:
Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.000
et seq. & 656.005
Hist.: WCB 4-1976, f. 10-20-76,
ef. 11-1-76; WCD 7-1978(Admin), f. & ef. 6-5-78; WCD 2-1980(Admin), f. 1-28-80,
ef. 2-1-80; WCD 5-1982(Admin), f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. &
ef. 1-16-84; WCD 2-1985(Admin), f. 4-29-85, ef. 6-3-85; Renumbered from 436-069-0005,
5-1-85; WCD 6-1985(Admin), f. 12-10-85, ef. 1-1-86; WCD 4-1986(Admin), f. 6-26-86,
ef. 7-1-86; WCD 2-1987(Admin), f. 2-20-87, ef. 3-16-87; WCD 1-1988, f. 1-20-88,
cert. ef. 2-1-88; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp), f.
6-20-90, cert. ef. 7-1-90; WCD 14-1990(Temp), f. & cert. ef. 7-20-90; WCD 16-1990(Temp),
f. & cert. ef. 8-17-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992,
f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996,
f. 5-6-96, cert. ef. 6-1-96; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001,
f. 12-17-01, cert. ef. 1-1-02; WCD 9-2002, f. 9-27-02, cert. ef. 11-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 5-2006, f. 6-15-06, cert. ef. 7-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08;
WCD 7-2013, f. 11-12-13, cert. ef. 1-1-14; WCD 3-2014, f. 3-12-14, cert. ef. 4-1-14;
WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0008
Request for Review before the Director
(1) General.
(a) Administrative review
before the director:
(A) Except as otherwise provided
in ORS 656.704, the director has exclusive jurisdiction to resolve all disputes
concerning medical fees, non-payment of compensable medical bills, and medical service
and treatment disputes arising under ORS 656.245, 656.247, 656.248, 656.260, 656.325,
and 656.327. Disputes about whether a medical service provided after a worker is
medically stationary is compensable within the meaning of ORS 656.245(1)(c), or
whether a medical treatment is unscientific, unproven, outmoded, or experimental
under ORS 656.245(3), are subject to administrative review before the director.
(B) A party does not need
to be represented to participate in the administrative review before the director.
(C) Any party may request
that the director provide voluntary mediation or alternative dispute resolution
after a request for administrative review or hearing is filed.
(b) All issues pertaining
to disagreements about medical services within a managed care organization (MCO),
including disputes under ORS 656.245(4)(a) about whether a change of provider will
be medically detrimental to the worker, are subject to ORS 656.260. A party dissatisfied
with an action or decision of the MCO must first apply for and complete the internal
dispute resolution process within the MCO before requesting an administrative review
of the matter before the director.
(c) Except for disputes regarding
interim medical benefits under ORS 656.247, when there is a formal denial of the
compensability of the underlying claim, or a denial of the causal relationship between
the medical service or treatment and the accepted condition or the underlying condition,
the parties may file a request for hearing with the Hearings Division of the Workers’
Compensation Board to resolve the compensability issue.
(d) The director may, on
the director’s own motion, initiate a review of medical services or medical
treatment at any time.
(e) If the director issues
an order declaring an already rendered medical treatment or medical service inappropriate,
or otherwise in violation of the statute or medical rules, the worker is not obligated
to pay for such.
(2) Time Frames and Conditions.
(a) The following time frames
and conditions apply to requests for administrative review before the director under
this rule:
(A) For MCO-enrolled claims,
a party that disagrees with an action or decision of the MCO must first use the
MCO’s dispute resolution process. If the party does not appeal the MCO’s
decision using the MCO’s dispute resolution process, in writing and within
30 days of the mailing date of the decision, the party will lose all rights to further
appeal the decision unless the party can show good cause. When the aggrieved party
is a represented worker, and the worker’s attorney has given written notice
of representation to the insurer, the 30-day time frame begins when the attorney
receives written notice or has actual knowledge of the MCO decision.
(B) For MCO-enrolled claims,
if a party disagrees with the final action or decision of the MCO, the aggrieved
party must request administrative review before the director within 60 days of the
MCO’s final decision. When the aggrieved party is a represented worker, and
the worker’s attorney has given written notice of representation to the insurer,
the 60-day time frame begins when the attorney receives written notice or has actual
knowledge of the dispute. If a party has been denied access to the MCO dispute resolution
process, or the process has not been completed for reasons beyond a party's control,
the party may request director review within 60 days of the failure of the MCO process.
If the MCO does not have a process for resolving a particular type of dispute, the
insurer or the MCO must advise the medical provider or worker that they may request
review before the director.
(C) For claims not enrolled
in an MCO, or for disputes that do not involve an action or decision of an MCO,
the aggrieved party must request administrative review before the director within
90 days of the date the party knew, or should have known, there was a dispute. When
the aggrieved party is a represented worker, and the worker’s attorney has
given written notice of representation to the insurer, the 90-day time frame begins
when the attorney receives written notice or has actual knowledge of the dispute.
For purposes of this rule, the date the insurer should have known of the dispute
is the date action on the bill was due. For disputes regarding interim medical benefits
on denied claims, the date the insurer should have known of the dispute is no later
than one year from the claim denial, or 45 days after the bill is perfected, whichever
occurs last. A request for administrative review under this rule may also be filed
as prescribed in OAR chapter 438, division 005.
(b) Medical provider bills
for treatment or services that are under review before the director are not payable
during the review.
(3) Form and Required Information.
(a) Requests for administrative
review before the director should be made on Form 2842 as described in Bulletin
293. When an insurer or a worker’s representative submits a request without
the required information, the director may dismiss the request or hold initiation
of the administrative review until the required information is submitted. Unrepresented
workers may ask the director for help in meeting the filing requirements. The requesting
party must simultaneously notify all other interested parties and their representatives,
if known, of the dispute. The notice must:
(A) Identify the worker's
name, date of injury, insurer, and claim number;
(B) Specify the issues in
dispute and the relief sought; and
(C) Provide the specific
dates of the unpaid disputed treatment or services.
(b) In addition to medical
evidence relating to the dispute, all parties may submit other relevant information,
including written factual information, sworn affidavits, or legal argument, for
incorporation into the record. Such information may also include timely written
responses and other evidence to rebut the documentation and arguments of an opposing
party. The director may take or obtain additional evidence consistent with statute,
such as pertinent medical treatment and payment records. The director may also interview
parties to the dispute, or consult with an appropriate committee of the medical
provider’s peers. When a party receives a written request for additional information
from the director, the party must respond within 14 days.
(c) When a request for administrative
review is filed under ORS 656.247, 656.260, or 656.327(3)(c), the insurer must provide
a record packet, at no charge, to the director and all other parties or their representatives
as follows:
(A) The packet must include
a complete, indexed copy of the worker’s medical record and other documents
that are arguably related to the medical dispute, arranged in chronological order,
with oldest documents on top, and numbered in Arabic numerals in the lower right
corner of each page. The number must be preceded by the designation “Ex.”
and pagination of the multiple page documents must be designated by a hyphen followed
by the page number. For example, page two of document 10 must be designated “Ex.
10-2.” The index must include the document numbers, description of each document,
author, number of pages, and date of the document. The packet must include the following
notice in bold type:
We hereby notify you that
the director is being asked to review the medical care of this worker. The director
may issue an order that could affect reimbursement for the disputed medical service(s).
(B) If the insurer requests
review, the packet must accompany the request, with copies sent simultaneously to
the other parties.
(C) If the requesting party
is not the insurer, or if the director has initiated the review, the director will
request the record from the insurer. The insurer must provide the record within
14 days of the director’s request as described in this rule.
(D) If the insurer fails
to submit the record in the time and format specified in this rule, the director
may sanction the insurer under OAR 436-010-0340.
(E) Except for disputes regarding
interim medical benefits, the packet must include certification stating that there
is an issue of compensability of the underlying claim or condition or stating that
there is not an issue of compensability of the underlying claim or condition. If
the insurer issued a denial that has been reversed by the Hearings Division, the
Board, or the Court of Appeals, the insurer must provide a statement regarding its
intention, if known, to accept or appeal the decision.
(4) Physician Review (E.g.,
appropriateness). If the director determines a review by a physician is indicated
to resolve the dispute, the director, under OAR 436-010-0330, may appoint an appropriate
medical service provider or panel of providers to review the medical records and,
if necessary, examine the worker and perform any necessary and reasonable medical
tests, other than invasive tests. Notwithstanding ORS 656.325(1), if the worker
is required by the director to submit to a medical exam as part of the administrative
review process, the worker may refuse an invasive test without sanction.
(a) A single physician selected
to conduct a review must be a practitioner of the same healing art and specialty,
if practicable, of the medical service provider whose treatment or service is being
reviewed.
(b) When a panel of physicians
is selected, at least one panel member must be a practitioner of the same healing
art and specialty, if practicable, of the medical service provider whose treatment
or service is being reviewed.
(c) When such an exam of
the worker is required, the director will notify the appropriate parties of the
date, time, and location of the exam. Examinations will be at a place reasonably
convenient to the worker, if possible. The parties must not directly contact the
physician or panel unless it relates to the exam date, time, location, or attendance.
If the parties have special questions they want addressed by the physician or panel,
the questions must be submitted to the director for screening as to the appropriateness
of the questions. Matters not related to the issues before the director are inappropriate
for medical review and will not be submitted to the reviewing physician(s). The
exam may include, but is not limited to:
(A) A review of all medical
records and diagnostic tests submitted,
(B) An examination of the
worker, and
(C) Any necessary and reasonable
medical tests.
(5) Dispute Resolution by
Agreement (E.g., Alternative Dispute Resolution).
(a) A dispute may be resolved
by agreement between the parties to the dispute. The agreement must be in writing
and approved by the director. The director may issue a letter of agreement instead
of an administrative order, which will become final on the 10th day after the letter
of agreement is issued unless the agreement specifies otherwise. Once the agreement
becomes final, the director may revise the agreement or reinstate the review only
under one or more of the following conditions:
(A) A party fails to honor
the agreement;
(B) The agreement was based
on misrepresentation;
(C) Implementation of the
agreement is not feasible because of unforeseen circumstances; or
(D) All parties request revision
or reinstatement of the dispute.
(b) Any mediated agreement
may include an agreement on attorney fees, if any, to be paid to the worker’s
attorney.
(c) If the dispute does not
resolve through mediation or alternative dispute resolution, the director will issue
an order. If the dispute is not resolved by agreement and if the director determines
that no bona fide dispute exists in a claim not enrolled in an MCO, the director
will issue an order under ORS 656.327(1). If any party disagrees with an order of
the director that no bona fide medical dispute exists, the party may appeal the
order to the Workers’ Compensation Board within 30 days of the mailing date
of the order. Upon review, the order of the director may be modified only if it
is not supported by substantial evidence in the record developed by the director.
(6) Director Order and Reconsideration.
(a) The director may, on
the director’s own motion, reconsider or withdraw any order that has not become
final by operation of law. A party also may request reconsideration of an administrative
order upon an allegation of error, omission, misapplication of law, incomplete record,
or the discovery of new information that could not reasonably have been discovered
and produced during the review. The director may grant or deny a request for reconsideration
at the director’s sole discretion. A request must be mailed to the director
before the administrative order becomes final.
(b) During any reconsideration
of the administrative order, the parties may submit new material evidence consistent
with this rule and may respond to such evidence submitted by others.
(c) Any party requesting
reconsideration or responding to a reconsideration request must simultaneously notify
all other interested parties of its contentions and provide them with copies of
all additional information presented.
(d) Attorney fees in administrative
review will be awarded as provided in ORS 656.385(1) and OAR 436-001-0400 through
436-001-0440.
(7) Hearings.
(a) Any party that disagrees
with an action or administrative order under these rules may obtain review of the
action or order by filing a request for hearing as provided in OAR 436-001-0019
within 30 days of the mailing date of the action or order under ORS 656.245, 656.248,
656.260, or 656.327, or within 60 days of the mailing date of an action or order
under ORS 656.247. OAR 436-001 applies to the hearing.
(b) In the review of orders
issued under ORS 656.245, 656.247, 656.260(15) or (16), or 656.327(2), no new medical
evidence or issues will be admitted at hearing. In these reviews, an administrative
order may be modified at hearing only if it is not supported by substantial evidence
in the record or if it reflects an error of law.
(c) Contested case hearings
of sanctions and civil penalties: Under ORS 656.740, any party that disagrees with
a proposed order or proposed assessment of a civil penalty issued by the director
under ORS 656.254 or 656.745 may request a hearing by the Hearings Division of the
Workers’ Compensation Board as follows:
(A) A written request for
a hearing must be mailed to the administrator of the Workers’ Compensation
Division. The request must specify the grounds upon which the proposed order or
assessment is contested.
(B) The request must be mailed
to the administrator within 60 days after the mailing date of the order or notice
of assessment.
(C) The administrator will
forward the request and other pertinent information to the Workers’ Compensation
Board.
(8) Other Proceedings.
(a) Any party seeking an
action or decision by the director, or any party aggrieved by an action taken by
another party not covered under sections (1) through (7) of this rule, may request
administrative review before the director.
(b) A written request for
review must be sent to the administrator of the Workers’ Compensation Division
within 90 days of the disputed action and must specify the grounds upon which the
action is contested.
(c) The administrator may
require and allow such input and information as it deems appropriate to complete
the review.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.245,
656.248, 656.252, 656.254, 656.256, 656.260, 656.268, 656.313, 656.325, 656.327,
656.331, 656.704
Hist.: WCD 1-1990, f. 1-5-90,
cert. ef. 2-1-90; WCD 12-1990(Temp), f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990,
f. 12-10-90, cert. ef. 12-26-90; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD
18-1995(Temp), f. & cert. ef. 12-4-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96;
WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-1999(Temp), f. & cert. ef.
10-25-99 thru 4-21-00; WCD 3-2000, f. 4-3-00, cert. ef. 4-21-00; WCD 13-2001, f.
12-17-01, cert. ef. 1-1-02; WCD 9-2002, f. 9-27-02, cert. ef. 11-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 2-2008, f. 6-13-08, cert. ef. 6-30-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0200
Medical Advisory Committee
The Medical Advisory Committee members
are appointed by the director of the Department of Consumer and Business Services.
The committee must include one insurer representative, one employer representative,
one worker representative, one managed care organization representative, and a diverse
group of health care providers representative of those providing medical care to
injured or ill workers.
The director may appoint
other persons as may be determined necessary to carry out the purpose of the committee.
Health care providers must comprise a majority of the committee at all times. When
appointing members, the director should select health care providers who will consider
the perspective of specialty care, primary care, and ancillary care providers and
consider the ability of members to represent the interests of the community at large.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.794
Hist.: WCD 1-1988, f. 1-20-88,
cert. ef. 2-1-88; WCD 12-1990(Temp), f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990,
f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD
13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96,
Renumbered from 436-010-0095; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-990; WCD 3-2000,
f. 4-3-00, cert. ef. 4-21-00; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 2-2005,
f. 3-24-05, cert. ef. 4-1-05; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0210
Attending Physician, Authorized
Nurse Practitioner, and Time-Loss Authorization
(1) An attending physician or authorized
nurse practitioner is primarily responsible for the patient’s care, authorizes
time loss, and prescribes and monitors ancillary care and specialized care.
(a) No later than five days
after becoming a patient’s attending physician or authorized nurse practitioner,
the provider must notify the insurer using Form 827. Regardless of whether Form
827 is filed, the facts of the case and the actions of the provider determine if
the provider is the attending physician or authorized nurse practitioner.
(b) Type A and B attending
physicians and authorized nurse practitioners may authorize time loss and manage
medical services subject to the limitations of ORS Chapter 656 or a managed care
organization contract. (See Appendix A “Matrix for Health Care Provider Types”)
(c) Except for emergency
services, or otherwise provided for by statute or these rules, all treatments and
medical services must be approved by the worker’s attending physician or authorized
nurse practitioner.
(2) Emergency Room Physicians.
Emergency room physicians may authorize time loss for no more than 14 days when
they refer the patient to a primary care physician. If an emergency room physician
sees a patient in his or her private practice apart from their duties as an emergency
room physician, the physician may be the attending physician.
(3) Authorized Nurse Practitioners.
(a) In order to provide any
compensable medical service, a nurse practitioner licensed in Oregon under ORS 678.375
to 678.390 must review a packet of materials provided by the division and complete
the statement of authorization. (See www.oregonwcdoc.info) Once the nurse practitioner
has completed the statement of authorization, the division will assign an authorized
nurse practitioner number.
(b) An authorized nurse practitioner
may:
(A) Provide compensable medical
services to an injured worker for a period of 180 days from the date of the first
visit with a nurse practitioner on the initial claim. Thereafter, medical services
provided by an authorized nurse practitioner are not compensable without the attending
physician’s authorization; and
(B) Authorize temporary disability
benefits for a period of up to 180 days from the date of the first nurse practitioner
visit on the initial claim.
(4) Unlicensed to Provide
Medical Services. Attending physicians may prescribe services to be carried out
by persons not licensed to provide a medical service or treat independently. These
services must be rendered under the physician’s direct control and supervision.
Home health care provided by a patient’s family member is not required to
be provided under the direct control and supervision of the attending physician
if the family member demonstrates competency to the satisfaction of the attending
physician.
(5) Out-of-State Attending
Physicians. The worker may choose an attending physician outside the state of Oregon
with the approval of the insurer. When the insurer receives the worker’s request
or becomes aware of the worker’s request to treat with an out-of-state attending
physician, the insurer must give the worker written notice of approval or disapproval
of the worker’s choice of attending physician within 14 days.
(a) If the insurer approves
the worker’s choice of out-of-state attending physician, the insurer must
immediately notify the worker and the physician in writing of the following:
(A) The Oregon medical fee
and payment rules, OAR 436-009;
(B) The manner in which the
out-of-state physician may provide compensable medical treatment or services to
Oregon workers; and
(C) That the insurer cannot
pay bills for compensable services above the Oregon fee schedule.
(b) If the insurer disapproves
the worker’s out-of-state attending physician, the notice to the worker must:
(A) Clearly state the reasons
for the disapproval, for example, the out-of-state physician’s refusal to
comply with OAR 436-009 and 436-010,
(B) Identify at least two
other physicians of the same healing art and specialty in the same area that the
insurer would approve, and
(C) Inform the worker that
if the worker disagrees with the disapproval, the worker may request approval from
the director under OAR 436-010-0220.
(6) If an approved out-of-state
attending physician does not comply with OAR 436-009 or 436-010, the insurer may
withdraw approval of the attending physician. The insurer must notify the worker
and the physician in writing:
(a) The reasons for withdrawing
the approval,
(b) That any future services
provided by that physician will not be paid by the insurer, and
(c) That the worker may be
liable for payment of services provided after the date of notification.
(7) If the worker disagrees
with the insurer’s decision to disapprove an out-of-state attending physician,
the worker or worker’s representative may request approval from the director
under OAR 436-010-0220.
[ED. NOTE:
Appendices referenced are not included in rule text. Click here for PDF copy of appendices.]
Stat. Auth.:ORS 656.726(4)
Stats. Implemented: ORS 656.005(12),
656.245 & 656.260
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; WCD 5-1984(Admin),
f. & ef. 8-20-84; Renumbered from 436-069-0301, 5-1-85; WCD 6-1985(Admin), f.
12-10-85, ef. 1-1-86; WCD 6-1988, f. 9-6-88, cert. ef. 9-15-88; WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95;
WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0050; WCD 11-1998,
f. 12-16-98, cert. ef. 1-1-99; WCD 13-1999(Temp), f. & cert. ef. 10-25-99 thru
4-21-000; WCD 3-2000, f. 4-3-00, cert. ef. 4-21-00; WCD 13-2001, f. 12-17-01, cert.
ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04; WCD 3-2004,
f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005,
f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006, f. 6-15-06, cert. ef. 7-1-06; WCD 11-2007,
f. 11-1-07, cert. ef. 1-2-08; WCD 12-2007(Temp), f. 12-14-07, cert. ef. 1-2-08 thru
6-29-08; WCD 2-2008, f. 6-13-08, cert. ef. 6-30-08; WCD 5-2011, f. 11-18-11, cert.
ef. 1-1-12; WCD 2-2013, f. 3-11-13, cert. ef. 4-1-13; WCD 7-2013, f. 11-12-13, cert.
ef. 1-1-14; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0220
Choosing and Changing Medical Providers
(1) The worker may have only one attending
physician or authorized nurse practitioner at a time. Concurrent treatment or services
by other medical providers, including specialist physicians, must be sufficiently
different that separate medical skills are needed for proper care, and must be based
on a written referral by the attending physician or authorized nurse practitioner.
The referral must specify any limitations and a copy must be sent to the insurer.
A specialist physician is authorized to provide or order all compensable medical
services and treatment he or she considers appropriate, unless the referral is for
a consultation only. The attending physician or authorized nurse practitioner continues
to be responsible for authorizing temporary disability even if the specialist physician
is providing or authorizing medical services and treatment. Physicians who provide
the following services are not considered attending physicians:
(a) Emergency services;
(b) Insurer or director requested
examinations;
(c) A Worker Requested Medical
Examination;
(d) Consultations or referrals
for specialized treatment or services initiated by the attending physician or authorized
nurse practitioner; and
(e) Diagnostic studies provided
by radiologists and pathologists upon referral.
(2) Changing Attending Physician
or Authorized Nurse Practitioner. The worker may choose to change his or her attending
physician or authorized nurse practitioner only twice after the initial choice.
When the worker requests a referral by the attending physician or authorized nurse
practitioner to another attending physician or authorized nurse practitioner, the
change will count as one of the worker’s choices. The limitation of the worker’s
right to choose attending physicians or authorized nurse practitioners begins with
the date of injury and extends through the life of the claim. The following are
not considered changes of attending physician or authorized nurse practitioner initiated
by the worker and do not count toward the worker’s two changes:
(a) When the worker has an
attending physician or authorized nurse practitioner who works in a group setting/facility
and the worker sees another group member due to team practice, coverage, or on-call
routines;
(b) When the worker’s
attending physician or authorized nurse practitioner is not available and the worker
sees a medical provider who is covering for that provider in their absence; or
(c) When the worker is required
to change attending physician or authorized nurse practitioner due to conditions
beyond the worker’s control. This could include, but is not limited to:
(A) When the attending physician
or authorized nurse practitioner terminates practice or leaves the area;
(B) When the attending physician
or authorized nurse practitioner is no longer willing to treat the worker;
(C) When the worker moves
out of the area requiring more than a 50 mile commute to the attending physician
or authorized nurse practitioner;
(D) When the period for treatment
or services by a type B attending physician or an authorized nurse practitioner
has expired (See Appendix A “Matrix for Health Care Provider Types”);
(E) When the authorized nurse
practitioner is required to refer the worker to an attending physician for a closing
examination or because of a possible worsening of the worker’s condition following
claim closure;
(F) When the worker becomes
subject to a managed care organization (MCO) contract and must change to an attending
physician or authorized nurse practitioner on the MCO’s panel;
(G) When the worker who,
at the time of MCO enrollment was required to change attending physician or authorized
nurse practitioner, is disenrolled from an MCO; or
(H) When the worker has to
change because their attending physician or authorized nurse practitioner is no
longer qualified as an attending physician or authorized to continue providing compensable
medical services.
(3) Insurer Notice to the
Worker. When the worker has changed attending physicians or authorized nurse practitioners
twice by choice or has reached the maximum number of changes established by the
MCO, the insurer must notify the worker by certified mail that any additional changes
by choice must be approved by the insurer or the director. If the insurer fails
to provide such notice and the worker later chooses another attending physician
or authorized nurse practitioner, the insurer must pay for compensable medical services
rendered prior to notice to the worker. The insurer must notify the newly selected
provider that the worker was not allowed to change his or her attending physician
or authorized nurse practitioner without approval of the insurer or director, and
therefore any future services will not be paid. The insurer must pay for appropriate
medical services rendered prior to this notification.
(4) Worker Requesting Additional
Changes of Attending Physician or Authorized Nurse Practitioner.
(a) If a worker not enrolled
in an MCO has changed attending physicians or authorized nurse practitioners by
choice twice (or for MCO enrolled workers, the maximum allowed by the MCO) and wants
to change again, the worker must request approval from the insurer. The worker must
make the request in writing or by signing Form 827. The insurer must respond to
the worker within 14 days of receiving the request whether the change is approved.
If the insurer objects to the change, the insurer must:
(A) Send the worker a written
explanation of the reasons;
(B) Send the worker Form
2332 (Worker’s Request to Change Attending Physician or Authorized Nurse Practitioner);
and
(C) Inform the worker that
he or she may request director approval by sending Form 2332 to the director.
(b) When the worker submits
a request to the director for an additional change of attending physician or authorized
nurse practitioner, the director may request, in writing, additional information.
If the director requests additional information, the parties must respond in writing
within 14 days of the director’s request.
(c) The director will issue
an order advising whether the request for change of attending physician or authorized
nurse practitioner is approved. On a case-by-case basis the director will consider
circumstances, such as:
(A) Whether there is medical
justification for a change, e.g., whether the attending physician or authorized
nurse practitioner can provide the type of treatment or service that is appropriate
for the worker’s condition.
(B) Whether the worker has
moved to a new area and wants to establish an attending physician or authorized
nurse practitioner closer to the worker’s residence.
(d) Any party that disagrees
with the director’s order may request a hearing by filing a request for hearing
as provided in OAR 436-001-0019 within 30 days of the mailing date of the order.
(5) Managed Care Organization
(MCO) Enrolled Workers. An MCO enrolled worker must choose:
(a) A panel provider unless
the MCO approves a non-panel provider, or
(b) A “come-along provider”
who provides medical services subject to the terms and conditions of the governing
MCO.
[ED. NOTE: Forms & Appendices referenced
are available from the agency.]
Stat. Auth.: ORS 656.276(4)
Stats. Implemented: ORS 656.245,
656.252 & 656.260
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; WCD 2-1985(Admin),
f. 4-29-85, ef. 6-3-85; Renumbered from 436-069-0401, 5-1-85; WCD 1-1988, f. 1-20-88,
cert. ef. 2-1-88; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp), f.
6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992,
f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996,
f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0060; WCD 11-1998, f. 12-16-98,
cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 9-2002, f. 9-27-02,
cert. ef. 11-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04;
WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05;
WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006, f. 6-15-06, cert. ef. 7-1-06;
WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 12-2007(Temp), f. 12-14-07, cert.
ef. 1-2-08 thru 6-29-08; WCD 2-2008, f. 6-13-08, cert. ef. 6-30-08; WCD 5-2015,
f. 8-20-15, cert. ef. 10-1-15
436-010-0225
Choosing a Person to Provide Interpreter
Services
A worker may choose a person to communicate
with a medical provider when the worker and the medical provider speak different
languages, including sign language. The worker may choose a family member, a friend,
an employee of the medical provider, or someone who provides interpreter services
as a profession. The medical provider may disapprove of the worker’s choice
at any time the medical provider feels the interpreter services are not improving
communication with the worker, or feels the interpretation is not complete or accurate.
Stat. Auth: ORS 656.726(4)
Stats. Implemented: ORS 656.245
Hist.: WCD 3-2010, f. 5-28-10,
cert. ef. 7-1-10
436-010-0230
Medical Services and Treatment Guidelines
(1) Medical services provided to the
worker must not be more than the nature of the compensable injury or the process
of recovery requires. Services that are unnecessary or inappropriate according to
accepted professional standards are not reimbursable.
(2) If the provider’s
chart notes do not provide evidence of frequency, extent, and efficacy of treatment
and services, the insurer may request additional information from the provider.
(3) All medical service providers
must notify the patient at the time of the first visit of how they can provide compensable
medical services and authorize time loss. Providers must also notify patients that
they may be personally liable for noncompensable medical services. Such notification
should be made in writing or documented in the patient’s medical record.
(4) Consent to Attend a Medical
Appointment.
(a) An employer or insurer
representative, such as a nurse case manager, may not attend a patient’s medical
appointment without written consent of the patient. The patient has the right to
refuse such attendance.
(A) The consent form must
be written in a way that allows the patient to understand it and to overcome language
or cultural differences.
(B) The consent form must
state that the patient’s benefits cannot be suspended if the patient refuses
to have an employer or insurer representative present.
(C) The insurer must keep
a copy of the signed consent form in the claim file.
(b) The patient or the medical
provider may refuse to allow an employer or insurer representative to attend an
appointment at any time, even if the patient previously signed a consent form. The
medical provider may refuse to meet with the employer or insurer representative.
(5) Request for Records at
a Medical Appointment. The medical provider may refuse to provide copies of the
patient’s medical records to the insurer representative without proof that
the person is representing the insurer. The provider may charge for any copies that
are provided.
(6) Requesting a Medical
Provider Consultation. The attending physician, authorized nurse practitioner, or
the MCO may request a consultation with a medical provider regarding conditions
related to an accepted claim. MCO-requested consultations that are initiated by
the insurer, which include an exam of the worker, must be considered independent
medical exams under OAR 436-010-0265.
(7) Ancillary Services —
Treatment Plan.
(a) Ancillary medical service
providers include but are not limited to physical or occupational therapists, chiropractic
or naturopathic physicians, and acupuncturists. When an attending or specialist
physician or an authorized nurse practitioner prescribes ancillary services, unless
an MCO contract specifies other requirements, the ancillary provider must prepare
a treatment plan before beginning treatment.
(b) The ancillary medical
service provider must send the treatment plan to the prescribing provider and the
insurer within seven days of beginning treatment. If the treatment plan is not sent
within seven days, the insurer is not required to pay for the services provided
before the treatment plan is sent.
(c) The treatment plan must
include objectives, modalities, frequency of treatment, and duration. The treatment
plan may be in any legible format, e.g., chart notes.
(d) Treatment plans required
under this subsection do not apply to services provided under ORS 656.245(2)(b)(A).
(See Appendix A “Other Health Care Providers.”)
(e) Within 30 days of the
beginning of ancillary services, the prescribing provider must sign a copy of the
treatment plan and send it to the insurer. If the prescribing provider does not
sign and send the treatment plan, the provider may be subject to sanctions under
OAR 436-010-0340. However, this will not affect payment to the ancillary provider.
(f) Authorized nurse practitioners,
out-of-state nurse practitioners, and physician assistants directed by the attending
physician do not have to provide a written treatment plan as prescribed in this
section.
(8) Massage Therapy. Unless
otherwise provided by an MCO, when an attending physician, authorized nurse practitioner,
or specialist physician prescribes ancillary services provided by a massage therapist
licensed by the Oregon State Board of Massage Therapists under ORS 687.011 to 687.250,
the massage therapist must prepare a treatment plan before beginning treatment.
Massage therapists not licensed in Oregon must provide their services under the
direct control and supervision of the attending physician. Treatment plans provided
by massage therapists must follow the same requirements as those for ancillary providers
in section (7) of this rule.
(9) Therapy Guidelines and
Requirements.
(a) Unless otherwise provided
by an MCO’s utilization and treatment standards, the usual range for therapy
visits is up to 20 visits in the first 60 days, and four visits a month thereafter.
This is only a guideline and insurers should not arbitrarily limit payment based
on this guideline nor should the therapist arbitrarily use this guideline to exceed
medically necessary treatment. The medical record must provide clinical justification
when therapy services exceed these guidelines. When an insurer believes the treatment
is inappropriate or excessive, the insurer may request director review as outlined
in OAR 436-010-0008.
(b) Unless otherwise provided
by an MCO, a physical therapist must submit a progress report to the attending physician
(or authorized nurse practitioner) and the insurer every 30 days or, if the patient
is seen less frequently, after every visit. The progress report may be part of the
physical therapist’s chart notes and must include:
(A) Subjective status of
the patient;
(B) Objective data from tests
and measurements conducted;
(C) Functional status of
the patient;
(D) Interpretation of above
data; and
(E) Any change in the treatment
plan.
(10) Physical Capacity Evaluation.
The attending physician or authorized nurse practitioner must complete a physical
capacity or work capacity evaluation within 20 days after the insurer or director
requests the evaluation. If the attending physician or authorized nurse practitioner
does not wish to perform the evaluation, they must refer the patient to a different
provider within seven days of the request. The attending physician or authorized
nurse practitioner must notify the insurer and the patient in writing if the patient
is incapable of participating in the evaluation.
(11) Prescription Medication.
(a) Unless otherwise provided
by an MCO contract, prescription medications do not require prior approval even
after the worker is medically stationary. For prescription medications, the insurer
must reimburse the worker based on actual cost. When a provider prescribes a brand-name
drug, pharmacies must dispense the generic drug (if available) according to ORS
689.515. When a worker insists on receiving the brand-name drug, and the prescribing
provider has not prohibited substitution, the worker must pay the total cost of
the brand-name drug out-of-pocket and request reimbursement from the insurer. However,
if the insurer has previously notified the worker that the worker is liable for
the difference between the generic and brand-name drug, the insurer only has to
reimburse the worker the generic price of the drug. Except in an emergency, prescription
drugs for oral consumption dispensed by a physician’s or authorized nurse
practitioner’s office are compensable only for the initial supply to treat
the worker, up to a maximum of 10 days. Unless otherwise provided by an MCO contract,
the worker may choose the dispensing provider.
(b) Providers should review
and are encouraged to adhere to the workers’ compensation division’s
opioid guidelines. See http://www.cbs.state.or.us/wcd/rdrs/mru/ogandcal.html.
(12) Diagnostics. Unless
otherwise provided by an MCO, a medical provider may contact an insurer in writing
for pre-authorization of diagnostic imaging studies other than plain film X-rays.
Pre-authorization is not a guarantee of payment. The insurer must respond to the
provider’s request in writing whether the service is pre-authorized or not
pre-authorized within 14 days of receipt of the request.
(13) Articles. Articles,
including but not limited to, beds, hot tubs, chairs, and gravity traction devices
are not compensable unless a report by the attending physician or authorized nurse
practitioner clearly justifies the need. The report must:
(a) Establish that the nature
of the injury or the process of recovery requires the item be furnished, and
(b) Specifically explain
why the worker requires the item when the great majority of workers with similar
impairments do not.
(14) Physical Restorative
Services.
(a) Physical restorative
services include, but are not limited to, a regular exercise program, personal exercise
training, or swim therapy. They are not services to replace medical services usually
prescribed during the course of recovery. Physical restorative services are not
compensable unless:
(A) The nature of the worker’s
limitations requires specialized services to allow the worker a reasonable level
of social or functional activity, and
(B) A report by the attending
physician or authorized nurse practitioner clearly justifies why the worker requires
services not usually considered necessary for the majority of workers.
(b) Trips to spas, resorts,
or retreats, whether prescribed or in association with a holistic medicine regimen,
are not reimbursable unless special medical circumstances are shown to exist.
(15) Lumbar Artificial Disc
Replacement Guidelines.
(a) Lumbar artificial disc
replacement is always inappropriate for patients with the following conditions (absolute
contraindications):
(A) Metabolic bone disease
— for example, osteoporosis;
(B) Known spondyloarthropathy
(seropositive and seronegative);
(C) Posttraumatic vertebral
body deformity at the level of the proposed surgery;
(D) Malignancy of the spine;
(E) Implant allergy to the
materials involved in the artificial disc;
(F) Pregnancy — currently;
(G) Active infection, local
or systemic;
(H) Lumbar spondylolisthesis
or lumbar spondylolysis;
(I) Prior fusion, laminectomy
that involves any part of the facet joint, or facetectomy at the same level as proposed
surgery; or
(J) Spinal stenosis —
lumbar — moderate to severe lateral recess and central stenosis.
(b) Lumbar artificial disc
replacement that is not excluded from compensability under OAR 436-009-0010(12)(g)
may be inappropriate for patients with the following conditions, depending on severity,
location, etc. (relative contraindications):
(A) A comorbid medical condition
compromising general health, for example, hepatitis, poorly controlled diabetes,
cardiovascular disease, renal disease, autoimmune disorders, AIDS, lupus, etc.;
(B) Arachnoiditis;
(C) Corticosteroid use (chronic
ongoing treatment with adrenal immunosuppression);
(D) Facet arthropathy —
lumbar — moderate to severe, as shown radiographically;
(E) Morbid obesity —
BMI greater than 40;
(F) Multilevel degenerative
disc disease — lumbar — moderate to severe, as shown radiographically;
(G) Osteopenia — based
on bone density test;
(H) Prior lumbar fusion at
a different level than the proposed artificial disc replacement; or
(I) Psychosocial disorders
— diagnosed as significant to severe.
(16) Cervical Artificial
Disc Replacement Guidelines.
(a) Cervical artificial disc
replacement is always inappropriate for patients with any of the following conditions
(absolute contraindications):
(A) Instability in the cervical
spine which is greater than 3.5 mm of anterior motion or greater than 20 degrees
of angulation;
(B) Significantly abnormal
facets;
(C) Osteoporosis defined
as a T-score of negative (-)2.5 or more negative (e.g., -2.7);
(D) Allergy to metal implant;
(E) Bone disorders (any disease
that affects the density of the bone);
(F) Uncontrolled diabetes
mellitus;
(G) Active infection, local
or systemic;
(H) Active malignancy, primary
or metastatic;
(I) Bridging osteophytes
(severe degenerative disease);
(J) A loss of disc height
greater than 75 percent relative to the normal disc above;
(K) Chronic indefinite corticosteroid
use;
(L) Prior cervical fusion
at two or more levels; or
(M) Pseudo-arthrosis at the
level of the proposed artificial disc replacement.
(b) Cervical artificial disc
replacement that is not excluded from compensability under OAR 436-009-0010(12)(h)
may be inappropriate for patients with any of the following conditions, depending
on severity, location, etc. (relative contraindications):
(A) A comorbid medical condition
compromising general health, for example hepatitis, poorly controlled diabetes,
cardiovascular disease, renal disease, autoimmune disorders, AIDS, lupus, etc.;
(B) Multilevel degenerative
disc disease — cervical — moderate to severe, as shown radiographically;
(C) Osteopenia — based
on bone density test with a T-score range of negative (-)1.5 to negative (-)2.5;
(D) Prior cervical fusion
at one level;
(E) A loss of disc height
of 50 percent to 75 percent relative to the normal disc above; or
(F) Psychosocial disorders
— diagnosed as significant to severe.
Stat. Auth: ORS 656.726(4)
Stats. Implemented: ORS 656.245,
656.248, 656.252
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; WCD 5-1984(Admin),
f. & ef. 8-20-84; WCD 2-1985(Admin), f. 4-29-85, ef. 6-3-85; Renumbered from
436-069-0201, 5-1-85; WCD 6-1985(Admin), f. 12-10-85, ef. 1-1-86; WCD 2-1987(Admin),
f. 2-20-87, ef. 3-16-87; WCD 1-1988, f. 1-20-88, cert. ef. 2-1-88; WCD 6-1988, f.
9-6-88, cert. ef. 9-15-88; WCD 2-1989, f. 8-21-89, cert. ef. 9-1-89; WCD 1-1990,
f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp), f. 6-20-90, cert. ef. 7-1-90; WCD
30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92;
WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96,
Renumbered from 436-010-0040; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 3-1999(Temp),
f. & cert. ef. 2-11-99 thru 8-10-99; WCD 7-1999, f. & cert. ef. 4-28-99;
WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f.
3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006,
f. 6-15-06, cert. ef. 7-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 2-2008,
f. 6-13-08, cert. ef. 6-30-08; WCD 1-2009, f. 5-22-09, cert. ef. 7-1-09; WCD 1-2011,
f. 3-1-11, cert. ef. 4-1-11; WCD 5-2011, f. 11-18-11, cert. ef. 1-1-12; WCD 2-2013,
f. 3-11-13, cert. ef. 4-1-13; WCD 3-2014, f. 3-12-14, cert. ef. 4-1-14; WCD 5-2015,
f. 8-20-15, cert. ef. 10-1-15
436-010-0240
Medical Records and Reporting Requirements
for Medical Providers
(1) Medical Records and Reports.
(a) Medical providers must
maintain records necessary to document the extent of medical services provided.
(b) All records must be legible
and cannot be kept in a coded or semi-coded manner unless a legend is provided with
each set of records.
(c) Reports may be handwritten
and must include all relevant or requested information such as the anticipated date
of release to return to work, medically stationary date, etc.
(d) Diagnoses stated on all
reports, including Form 827, must conform to terminology found in the appropriate
International Classification of Disease (ICD).
(2) Diagnostic Studies. When
the director or the insurer requests original diagnostic studies, including but
not limited to actual films, they must be forwarded to the director, the insurer,
or the insurer’s designee within 14 days of receipt of a written request.
(a) Diagnostic studies, including
films, must be returned to the medical provider within a reasonable time.
(b) The insurer must pay
a reasonable charge made by the medical provider for the costs of delivery of diagnostic
studies, including films.
(3) Multidisciplinary Programs.
When an attending physician or authorized nurse practitioner approves a multidisciplinary
treatment program for the worker, the attending physician or authorized nurse practitioner
must provide the insurer with a copy of the approved treatment program within 14
days of the beginning of the treatment program.
(4) Release of Medical Records.
(a) Health Insurance Portability
and Accountability Act (HIPAA) rules allow medical providers to release information
to insurers, self-insured employers, service companies, or the Department of Consumer
and Business Services. (See 45 CFR 164.512(l).)
(b) When patients file workers’
compensation claims they are authorizing medical providers and other custodians
of claim records to release relevant medical records including diagnostics. The
medical provider will not incur any legal liability for disclosing such records.
(See ORS 656.252(4).) The authorization is valid for the life of the claim and cannot
be revoked by the patient or the patient’s representative. A separate authorization
is required for release of information regarding:
(A) Federally funded drug
and alcohol abuse treatment programs governed by Federal Regulation 42, CFR 2, which
may only be obtained in compliance with this federal regulation, and
(B) HIV-related information
protected by ORS 433.045(3).
(c) Any medical provider
must provide all relevant information to the director, or the insurer or its representative
upon presentation of a signed Form 801, 827, or 2476. The insurer may print “Signature
on file” on a release form as long as the insurer maintains a signed original.
However, the medical provider may require a copy of the signed release form.
(d) The medical provider
must respond within 14 days of receipt of a request for progress reports, narrative
reports, diagnostic studies, or relevant medical records needed to review the efficacy,
frequency, and necessity of medical treatment or medical services. Medical information
relevant to a claim includes a past history of complaints or treatment of a condition
similar to that presented in the claim or other conditions related to the same body
part.
(e) Patients or their representatives
are entitled to copies of all medical and payment records, which may include records
from other medical providers. Patients or their representatives may request all
or part of the record. These records should be requested from the insurer, but may
also be obtained from medical providers. A summary may substitute for the actual
record only if the patient agrees to the substitution. The following records may
be withheld:
(A) Psychotherapy notes;
(B) Information compiled
for use in a civil, criminal, or administrative action or proceeding;
(C) Other reasons specified
by federal regulation; and
(D) Information that was
obtained from someone other than a medical provider when the medical provider promised
confidentiality and release of the information would likely reveal the source of
the information.
(f) A medical provider may
charge the patient or his or her representative for copies at the rate specified
in OAR 436-009-0060. A patient may not be denied summaries or copies of his or her
medical records because of inability to pay.
(5) Release to Return to
Work.
(a) When requested by the
insurer, the attending physician or authorized nurse practitioner must submit verification
that the patient’s medical limitations related to their ability to work result
from an occupational injury or disease. If the insurer requires the attending physician
or authorized nurse practitioner to complete a release to return-to-work form, the
insurer must use Form 3245.
(b) The attending physician
or authorized nurse practitioner must advise the patient, and within five days,
provide the insurer written notice of the date the patient is released to return
to regular or modified work.
(6) Time Loss and Medically
Stationary.
(a) When time loss is authorized
by the attending physician or authorized nurse practitioner, the insurer may require
progress reports every 15 days. Chart notes may be sufficient to satisfy this requirement.
If more information is required, the insurer may request a brief or complete narrative
report. The provider must submit a requested progress report or narrative report
within 14 days of receiving the insurer’s request.
(b) The attending physician
or authorized nurse practitioner must, if known, inform the patient and the insurer
of the following and include it in each progress report:
(A) The anticipated date
of release to work;
(B) The anticipated date
the patient will become medically stationary;
(C) The next appointment
date; and
(D) The patient’s medical
limitations.
(c) The insurer must not
consider the anticipated date of becoming medically stationary as a date of release
to return to work.
(d) The attending physician
or authorized nurse practitioner must notify the patient, insurer, and all other
medical providers involved in the patient’s treatment when the patient is
determined medically stationary and whether the patient is released to any kind
of work. The medically stationary date must be the date of the exam and not a projected
date.
(7) Consultations. When the
attending physician, authorized nurse practitioner, or the MCO requests a consultation
with a medical provider regarding conditions related to an accepted claim:
(a) The attending physician,
authorized nurse practitioner, or the MCO must promptly notify the insurer of the
request for the consultation and provide the consultant with all relevant medical
records. However, if the consultation is for diagnostic studies performed by radiologists
or pathologists, no such notification is required.
(b) The consultant must submit
a copy of the consultation report to the insurer and the attending physician, authorized
nurse practitioner, or MCO within 10 days of the date of the exam or chart review.
The consultation fee includes the fee for this report.
[ED. NOTE: Forms referenced are available
from the agency.]
Stat. Auth.: ORS 656.276(4)
Stats. Implemented: ORS 656.245,
656.252 & 656.254
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; Renumbered from
436-069-0101, 5-1-85; WCD 6-1985(Admin), f. 12-10-85, ef. 1-1-86; WCD 1-1988, f.
1-20-88, cert. ef. 2-1-88; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 14-1990(Temp), f. & cert. ef. 7-20-90; WCD
30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92;
WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96,
Renumbered from 436-010-0030; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001,
f. 12-17-01, cert. ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04
thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f. 3-24-05, cert.
ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006, f. 6-15-06, cert.
ef. 7-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 2-2008, f. 6-13-08, cert.
ef. 6-30-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 3-2014, f. 3-12-14, cert.
ef. 4-1-14; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0241
Form 827, Worker’s and Health
Care Provider’s Report for Workers’ Compensation Claims
(1) First Visit.
(a) When the patient has
filed an initial claim or wants to file an initial claim, the patient and the first
medical service provider must complete and sign Form 827. The provider must send
the form to the insurer no later than 72 hours after the patient’s first visit
(Saturdays, Sundays, and holidays are not counted in the 72-hour period).
(b) Form 3283 (“A Guide
for Workers Recently Hurt on the Job”) is included with Form 827. All medical
service providers must give a copy of Form 3283 and Form 827 to the patient.
(2) New or Omitted Medical
Condition. A patient may use Form 827 to request that the insurer formally accept
a new or omitted medical condition. If the patient uses the form to request acceptance
of a new or omitted medical condition during a medical visit, the medical service
provider may write the claimed condition or the appropriate International Classification
of Diseases (ICD) diagnosis code for the patient in the space provided on the form.
After the patient signs the form, the provider must send it to the insurer within
five days.
(3) Change of Attending Physician.
When the patient changes attending physician or authorized nurse practitioner, the
patient and the new medical service provider must complete and sign Form 827. The
provider must send Form 827 to the insurer within five days after becoming a patient’s
attending physician or authorized nurse practitioner. The new attending physician
or authorized nurse practitioner is responsible for requesting all available medical
records from the previous attending physician, authorized nurse practitioner, or
insurer. Anyone failing to forward the requested information to the new attending
physician or authorized nurse practitioner within 14 days of receiving the request
may be subject to sanctions under OAR 436-010-0340.
(4) Aggravation. After the
patient has been declared medically stationary, and an exam reveals an aggravation
of the patient’s accepted condition, the patient may file a claim for aggravation.
The patient or the patient’s representative and the attending physician must
complete and sign Form 827. The physician, on the patient’s behalf, must submit
Form 827 to the insurer within five days of the exam. Within 14 days of the exam,
the attending physician must send a written report to the insurer that includes
objective findings that document:
(a) Whether the patient has
suffered a worsened condition attributable to the compensable injury under the criteria
in ORS 656.273; and
(b) Whether the patient is
unable to work as a result of the compensable worsening.
[ED. NOTE: Forms referenced are available
from the agency.]
Stat. Auth: ORS 656.726(4)
Stat. Implemented: ORS 656.245,
656.252, 656.254, 656.273
Hist.: WCD 5-2015, f. 8-20-15,
cert. ef. 10-1-15
436-010-0250
Elective Surgery
(1) “Elective surgery” is
surgery that may be required to recover from an injury or illness, but is not an
emergency surgery to preserve life, function, or health.
(2) Except as otherwise provided
by the MCO, the attending physician, authorized nurse practitioner, or specialist
physician must give the insurer at least seven days notice before the date of the
proposed elective surgery to treat a compensable injury or illness. The notice must
provide the medical information that substantiates the need for surgery, and the
approximate surgical date and place if known. A chart note is considered "notice"
if the information required by this section is included in the note.
(3) When elective surgery
is proposed, the insurer may require an independent consultation (second opinion)
with a physician of the insurer’s choice.
(4) The insurer must respond
to the recommending physician, the worker, and the worker’s representative
within seven days of receiving the notice of intent to perform surgery that the
proposed surgery:
(a) Is approved;
(b) Is not approved and a
consultation is requested by using Form 3228 (Elective Surgery Notification); or
(c) Is disapproved by using
Form 3228.
(5) If the insurer does not
complete Form 3228 (e.g., no specific date or consultant name) or communicate approval
to the recommending physician within seven days of receiving the notice of intent
to perform surgery, the insurer is barred from challenging the appropriateness of
the surgery or whether the surgery is excessive or ineffectual. The attending physician
and the worker may decide whether to proceed with surgery.
(6) If the insurer requests
a consultation, it must be completed within 28 days after sending Form 3228 to the
physician.
(7) The insurer must notify
the recommending physician of the consultant’s findings within seven days
of the consultation.
(8) When the consultant disagrees
with the proposed surgery, the recommending physician and insurer should attempt
to resolve disagreement. The insurer and recommending physician may agree to obtain
additional diagnostic testing or other medical information, such as asking for clarification
from the consultant, to assist in reaching an agreement regarding the proposed surgery.
(9) If the recommending physician
cannot reach an agreement with the insurer and continues to recommend the proposed
surgery, the physician must either send the signed and dated Form 3228 or other
written notification to the insurer, the patient, and the patient’s representative.
If the insurer believes the proposed surgery is excessive, inappropriate, ineffectual,
or in violation of these rules, the insurer must request administrative review before
the director within 21 days of receiving the notification. If the insurer fails
to timely request administrative review the insurer is barred from challenging whether
the surgery is or was excessive, inappropriate, or ineffectual. The attending physician
and the worker may decide whether to proceed with surgery.
(10) A recommending physician
who prescribes or performs elective surgery and fails to give the insurer the seven
day notice requirement may be subject to civil penalties as provided in ORS 656.254
and OAR 436-010-0340. The insurer may still be responsible to pay for the elective
surgery.
(11) Surgery that must be
performed before seven days, because the condition is life threatening or there
is rapidly progressing deterioration or acute pain not manageable without surgical
intervention, is not considered elective surgery. In such cases, the attending physician
or authorized nurse practitioner should try to notify the insurer of the need for
emergency surgery.
[ED. NOTE: Forms referenced are available
from the agency.]
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.245,
656.248, 656.252, 656.260 & 656.327
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; WCD 2-1985(Admin),
f. 4-29-85, ef. 6-3-85; Renumbered from 436-069-0501, 5-1-85; WCD 6-1985(Admin),
f. 12-10-85, ef. 1-1-86; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 30-1990, f.
12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994,
f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96, Renumbered
from 436-010-0070; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01,
cert. ef. 1-1-02; WCD 9-2002, f. 9-27-02, cert. ef. 11-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0260 [Renumbered to 436-010-0335]
436-010-0265
Independent Medical Exams (IMEs)
and Worker Requested Medical Exams (WRMEs)
(1) General.
(a) Except as provided in
section (12) of this rule, “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. 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. The insurer may obtain three
IMEs for each opening of the claim. These exams 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 a statutory IME. A claim for aggravation, Board’s
Own Motion, or reopening of a claim when the worker becomes enrolled or actively
engaged in training according to rules adopted under ORS 656.340 and 656.726 allows
a new series of three IMEs. A medical service provider must not unreasonably interfere
with the right of the insurer to obtain an IME by a physician of the insurer’s
choice. The insurer must choose the medical service providers from the director’s
list of authorized IME providers under ORS 656.328. The IME may be conducted by
one or more providers of different specialties, generally done at one location and
completed within a 72-hour period. If the providers are not at one location, the
IME must be completed within a 72-hour period and at locations reasonably convenient
to the worker.
(b) The provider will determine
the conditions under which the exam will be conducted.
(c) IMEs must be at times
and intervals reasonably convenient to the worker and must not delay or interrupt
treatment of the worker.
(d) When the insurer requires
a worker to attend an IME, the insurer must comply with the notification and reimbursement
requirements found in OAR 436-009-0025 and 436-060-0095.
(e) 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.
(f) The worker may complete
an online survey at www.wcdimesurvey.info or make a complaint about the IME on the
Workers’ Compensation Division’s website. If the worker does not have
access to the Internet, the worker may call the Workers’ Compensation Division
at 503-947-7606.
(2) IME/WRME Authorization.
(a) Medical service providers
can perform IMEs, WRMEs, or both once they complete a director-approved training
and are placed on the director's list of authorized IME providers.
(A) To be on the director’s
list to perform IMEs or WRMEs, a medical service provider must complete the online
application at www.oregonwcdoc.info, hold a current license, be in good standing
with the provider’s regulatory board, and must have:
(i) Reviewed IME training
materials provided or approved by the director found at www.oregonwcdoc.info; or
(ii) Completed a director-approved
training course regarding IMEs. The training curriculum must include all topics
listed in Appendix B.
(B) By submitting the application
to the director, the medical service provider agrees to abide by:
(i) The standards of professional
conduct for performing IMEs adopted by the provider’s regulatory board or
standards published in Appendix C if the provider’s regulatory board does
not have standards; and
(ii) All relevant workers’
compensation laws and rules.
(C) A provider may be sanctioned
or removed from the director’s list of authorized IME providers after the
director finds that the provider:
(i) Violated the standards
of either the professional conduct for performing IMEs adopted by the provider’s
regulatory board or the independent medical examination standards published in Appendix
C;
(ii) Has a current restriction
on his or her license or is under a current disciplinary action from their professional
regulatory board;
(iii) Has entered into a
voluntary agreement with his or her regulatory board that the director determines
is detrimental to performing IMEs;
(iv) Violated workers’
compensation laws or rules; or
(v) Has failed to complete
training required by the director.
(D) A provider may appeal
the director’s decision to exclude or remove the provider from the director’s
list within 60 days under ORS 656.704(2) and OAR 436-001-0019.
(b) 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.
(3) IME Training.
(a) The IME provider training
curriculum must be approved by the director before the training is given. Any party
may submit a curriculum to the director for approval. The curriculum must include:
(A) A training outline,
(B) Goals,
(C) Objectives,
(D) The method of training,
and
(E) All topics addressed
in Appendix B.
(b) Within 21 days of the
IME training, the training vendor must send the director the date of the training
and a list of all medical providers who completed the training, including names
and license numbers.
(c) Insurer claims examiners
must be trained and certified in accordance with OAR 436-055 regarding appropriate
interactions with IME medical service providers.
(4) 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.
(5) IME Observer.
(a) A worker may choose to
have an observer present during the IME, however, an observer may not participate
in or obstruct the IME. An observer is not allowed in a psychological examination
unless the examining provider approves the presence of the observer.
(b) The worker must sign
Form 3923A, “IME Observer Form,” acknowledging that the worker understands
the IME provider may ask sensitive questions during the exam in the presence of
the observer. An observer must not participate in or obstruct the exam. If the worker
does not sign Form 3923A, the provider may exclude the observer. The IME provider
must verify that the worker signed the “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.
(c) A person receiving any
compensation for attending the exam may not be a worker’s observer. The worker’s
attorney or any representative of the worker’s attorney may not be an observer.
(6) Invasive Procedure. 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.
(7) Record the Exam. With
the IME provider’s approval, the worker may use a video camera or other recorder
to record the exam.
(8) 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.
(9) Failure to Attend an
IME. If the worker fails to attend an IME and does not notify the insurer before
the date of the exam or does not have sufficient reason for not attending the exam,
the director may impose a monetary penalty against the worker for failure to attend.
(10) IME Report.
(a) Upon completion of the
exam, the IME provider must:
(A) Send the insurer a copy
of the report and, if applicable, the observer Form 3923A, the invasive procedure
Form 3227, or both.
(B) Sign a statement at the
end of the report acknowledging that any false statements may result in sanctions
by the director and verifying:
(i) Who performed the exam;
(ii) Who dictated the report;
and
(iii) The accuracy of the
report content.
(b) The insurer must forward
a copy of the signed report to the attending physician or authorized nurse practitioner
within 72 hours of the insurer’s receipt of the report.
(11) Request for Additional
Exams.
(a) When the insurer has
obtained the three IMEs allowed under this rule and wants to require the worker
to attend an additional IME, the insurer must first request authorization from the
director. Insurers that fail to request authorization from the director may be assessed
a civil penalty. The process for requesting authorization is:
(A) The insurer must submit
a request for authorization to the director 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 any; and
(B) The director will review
the request and determine if additional information from the insurer or the worker
is necessary. Upon receiving a written request for additional information from the
director, the parties have 14 days to respond. If the parties do not provide the
requested information, the director will issue an order approving or disapproving
the request based on available information.
(b) To determine whether
to approve or deny the request for an additional IME, the director may consider,
but is not limited to, whether:
(A) An IME involving the
same discipline(s) 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 introduced to 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 preponderance for medically stationary status.
(F) The IME is medically
harmful to the worker.
(G) The IME requested is
for a condition for which the worker has sought treatment or services, or the condition
has been included in the compensable claim.
(c) Any party who disagrees
with the director’s order approving or disapproving a request for an additional
IME may request a hearing by the Hearings Division of the Workers’ Compensation
Board under ORS 656.283 and OAR chapter 438.
(12) Other Exams —
Not Considered IMEs. The following exams are not considered IMEs and do not require
approval as outlined in section (11) 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(3);
(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.
[ED. NOTE:
Forms referenced are not included in rule text. Click here for PDF copy of form(s).]
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.252,
656.325, 656.245, 656.248, 656.260, 656.264
Hist.: WCD 11-1998, f. 12-16-98,
cert. ef. 1-1-99; WCD 3-1999(Temp), f. & cert. ef. 2-11-99 thru 8-10-99; WCD
7-1999, f. & cert. ef. 4-28-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02;
WCD 9-2002, f. 9-27-02, cert. ef. 11-1-02; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f.
3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2006,
f. 6-15-06, cert. ef. 7-1-06; WCD 4-2007(Temp), f. & cert. ef. 6-7-07 thru 12-3-07;
WCD 9-2007, f. 11-1-07, cert. ef. 12-4-07; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08;
WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 1-2011, f. 3-1-11, cert. ef. 4-1-11;
WCD 2-2013, f. 3-11-13, cert. ef. 4-1-13; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0270
Insurer’s Rights and Duties
(1) Notifications.
(a) Immediately following
receipt of notice or knowledge of a claim, the insurer must notify the worker in
writing about how to receive medical services for compensable injuries.
(b) Within 10 days of any
change in the status of a claim, (e.g., acceptance or denial of a claim, or a new
or omitted medical condition), the insurer must notify the attending physician or
authorized nurse practitioner, if known, and the MCO, if any.
(c) In disabling and nondisabling
claims, immediately following notice or knowledge that the worker is medically stationary,
the insurer must notify the worker and the attending physician or authorized nurse
practitioner in writing which medical services remain compensable. This notice must
list all benefits the worker is entitled to receive under ORS 656.245(1)(c).
(d) When the insurer establishes
a medically stationary date that is not based on the findings of an attending physician
or authorized nurse practitioner, the insurer must notify all medical service providers
of the worker’s medically stationary status. For all injuries occurring on
or after October 23, 1999, the insurer must pay all medical service providers for
services rendered until the insurer provides notice of the medically stationary
date to the attending physician or authorized nurse practitioner.
(2) Medical Records Requests.
(a) Insurers may request
relevant medical records, using Form 2476, “Request for Release of Medical
Records for Oregon Workers’ Compensation Claim,” or a computer-generated
equivalent of Form 2476, with “signature on file” printed on the worker’s
signature line, provided the insurer maintains a worker-signed original of the release
form.
(b) Within 14 days of receiving
a request, the insurer must forward all relevant medical information to return-to-work
specialists, vocational rehabilitation organizations, or new attending physician
or authorized nurse practitioner.
(3) Pre-authorization. Unless
otherwise provided by an MCO, an insurer must respond in writing within 14 days
of receiving a medical provider’s written request for preauthorization of
diagnostic imaging studies, other than plain film X-rays. The response must include
whether the service is pre-authorized or not pre-authorized.
(4) Insurer’s Duties
under MCO Contracts.
(a) Insurers who enter into
an MCO contract under OAR 436-015, must notify the affected employers of the following:
(A) The names and addresses
of all MCO panel providers within the employer’s geographical service area(s);
(B) How workers can receive
compensable medical services within the MCO;
(C) How workers can receive
compensable medical services by non-panel providers; and
(D) The geographical service
area governed by the MCO.
(b) Insurers under contract
with an MCO must notify any newly insured employers as specified in subsection (4)(a)
of this rule no later than the effective date of coverage.
(c) When the insurer is enrolling
a worker in an MCO, the insurer must provide the name, address, and telephone number
of the worker and, if represented, the name of the worker’s attorney to the
MCO.
(d) When the insurer is enrolling
a worker in an MCO, the insurer must simultaneously provide written notice to the
worker, the worker’s representative, all medical providers, and the MCO of
enrollment. To be considered complete, the notice must:
(A) Provide the worker a
written list of the eligible attending physicians within the relevant MCO geographic
service area or provide a Web address to access the list of eligible attending physicians.
If the notice does not include a written list, then the notice must also:
(i) Provide a telephone number
the worker may call to ask for a written list; and
(ii) Tell the worker that
he or she has seven days from the mailing date of the notice to request the list;
(B) Explain how the worker
may obtain the names and addresses of the complete panel of MCO medical providers;
(C) Advise the worker how
to obtain medical services for compensable injuries within the MCO. This includes
whether the worker:
(i) Must to change attending
physician or authorized nurse practitioner to an MCO panel provider, or
(ii) May continue to treat
with the worker’s current attending physician or authorized nurse practitioner;
(D) Explain how the worker
can receive compensable medical treatment from a “come-along” provider;
(E) Advise the worker of
the right to choose the MCO when more than one MCO contract covers the worker’s
employer, except when the employer provides a coordinated health care program. For
the purpose of this rule, “coordinated health care program” means an
employer program providing coordination of a separate policy of group health insurance
coverage with the medical portion of workers’ compensation coverage, for some
or all of the employer’s workers, which provides the worker with health care
benefits even if a worker’s compensation claim is denied; and
(F) Notify the worker of
his or her right to appeal MCO decisions and provide the worker with the title,
address, and telephone number of the contact person at the MCO responsible for ensuring
the timely resolution of complaints or disputes.
(e) When an insurer enrolls
a worker in an MCO before claim acceptance, the insurer must inform the worker in
writing that the insurer will pay for certain medical services even if the claim
is denied. Necessary and reasonable medical services that are not otherwise covered
by health insurance will be paid until the worker receives the notice of claim denial
or until three days after the denial is mailed, whichever occurs first.
(f) When a worker who is
not yet medically stationary must change medical providers because an insurer enrolled
the worker in an MCO, the insurer must notify the worker of the right to request
review before the MCO if the worker believes the change would be medically detrimental.
(g) If, at the time of MCO
enrollment, the worker’s medical service providers are not members of the
MCO and do not qualify as “come-along providers,” the insurer must notify
the worker and providers regarding provisions of care under the MCO contract, including
continuity of care as provided by OAR 436-015-0035(4).
(h) Within seven days of
receiving a dispute regarding an issue that should be processed through the MCO
dispute resolution process and a copy has not been sent to the MCO, the insurer
must:
(A) Send a copy of the dispute
to the MCO; or
(B) If the MCO does not have
a dispute resolution process for that issue, notify the parties in writing to seek
administrative review before the director.
(i) The insurer must notify
the MCO within seven days of receiving notification of the following:
(A) Any changes to the worker’s
or worker’s attorney’s name, address, or telephone number;
(B) Any requests for medical
services from the worker or the worker’s medical provider; or
(C) Any request by the worker
to continue treating with a “come-along” provider.
(j) Insurers under contract
with MCOs must maintain records including, but not limited to:
(A) A listing of all employers
covered by MCO contracts;
(B) The employers’
WCD employer numbers;
(C) The estimated number
of employees governed by each MCO contract;
(D) A list of all workers
enrolled in the MCO; and
(E) The effective dates of
such enrollments.
(k) When the insurer is disenrolling
a worker from an MCO, the insurer must simultaneously provide written notice of
the disenrollment to the worker, the worker’s representative, all medical
service providers, and the MCO. The insurer must mail the notice no later than seven
days before the date the worker is no longer subject to the contract. The notice
must tell the worker how to obtain compensable medical services after disenrollment.
(l) When an MCO contract
expires or is terminated without renewal, the insurer must simultaneously provide
written notice to the worker, the worker’s representative, all medical service
providers, and the MCO that the worker is no longer subject to the MCO contract.
The notice must be mailed no later than three days before the date the contract
expires or terminates. The notice must tell the worker how to obtain compensable
medical services after the worker is no longer subject to the MCO contract.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.252,
656.325, 656.245, 656.248, 656.260, 656.264
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; Renumbered from
436-069-0801, 5-1-85; WCD 6-1985(Admin), f. 12-10-85, ef. 1-1-86; WCD 1-1988, f.
1-20-88, cert. ef. 2-1-88; WCD 6-1988, f. 9-6-88, cert. ef. 9-15-88; WCD 1-1990,
f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp), f. 6-20-90, cert. ef. 7-1-90; WCD
30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92;
WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96,
Renumbered from 436-010-0100; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-1999(Temp),
f. & cert. ef. 10-25-99 thru 4-21-000; WCD 3-2000, f. 4-3-00, cert. ef. 4-21-00;
WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-04; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f.
3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 3-2014,
f. 3-12-14, cert. ef. 4-1-14; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0280
Determination of Impairment/Closing
Exams
(1) When a worker has received compensation
for time loss or it is likely the worker has permanent impairment and becomes medically
stationary, the attending physician must complete a closing exam or refer the worker
to a consulting physician for all or part of the closing exam. If the worker is
under the care of an authorized nurse practitioner or a type B attending physician,
other than a chiropractic physician, the provider must refer the worker to a type
A attending physician to do a closing exam.
(2) The closing exam must
be completed under OAR 436-030 and 436-035 and Bulletin 239. (See Appendix A “Matrix
for Health Care Provider Types”.)
(3) When the attending physician
completes the closing exam, the attending physician has 14 days from the medically
stationary date to send the closing report to the insurer. When the attending physician
does not complete the closing exam, the attending physician must arrange, or ask
the insurer to arrange, a closing exam with a consulting physician within seven
days of the medically stationary date.
(4) When an attending physician
or authorized nurse practitioner requests a consulting physician to do the closing
exam, the consulting physician has seven days from the date of the exam to send
the report to the attending physician for concurrence or objections. Within seven
days of receiving the closing exam report, the attending physician must state in
writing whether the physician concurs with or objects to all or part of the findings
of the exam, and send the concurrence or objections with the report to the insurer.
(5) The attending physician
must specify the worker’s residual functional capacity if:
(a) The attending physician
has not released the worker to the job held at the time of injury because of a permanent
work restriction caused by the compensable injury, and
(b) The worker has not returned
to the job held at the time of injury, because of a permanent work restriction caused
by the compensable injury.
(6) Instead of specifying
the worker’s residual functional capacity under section (5) of this rule,
the attending physician may refer the worker for:
(a) A second-level physical
capacities evaluation (see OAR 436-009-0060) when the worker has not been released
to return to the job held at the time of injury, has not returned to the job held
at the time of injury, has returned to modified work, or has refused an offer of
modified work; or
(b) A work capacities evaluation
(see OAR 436-009-0060) when there is a question of the worker’s ability to
return to suitable and gainful employment. The provider may also be required to
specify the worker’s ability to perform specific job tasks.
(7) When the insurer issues
a major contributing cause denial on an accepted claim and the worker is not medically
stationary:
(a) The attending physician
must do a closing exam or refer the worker to a consulting physician for all or
part of the closing exam; or
(b) An authorized nurse practitioner
or a type B attending physician, other than a chiropractic physician, must refer
the worker to a type A attending physician for a closing exam.
(8) The closing report must
include all of the following:
(a) Findings of permanent
impairment.
(A) In an initial injury
claim, the closing report must include objective findings of any permanent impairment
that is caused in any part by an accepted condition, a direct medical sequela of
an accepted condition, or a condition directly resulting from the work injury.
(B) In a new or omitted condition
claim, the closing report must include objective findings of any permanent impairment
that is caused in any part by an accepted new or omitted condition or a direct medical
sequela of an accepted new or omitted condition.
(C) In an aggravation claim,
the closing report must include objective findings of any permanent impairment that
is caused in any part by an accepted worsened condition or a direct medical sequela
of an accepted worsened condition.
(D) In an occupational disease
claim, the closing report must include objective findings of any permanent impairment
that is caused in any part by an accepted occupational disease or a direct medical
sequela of an accepted occupational disease.
(b) Findings documenting
permanent work restrictions.
(A) If the worker has no
permanent work restriction, the closing report must include a statement indicating
that:
(i) The worker has no permanent
work restriction; or
(ii) The worker is released,
without restriction, to the job held at the time of injury.
(B) In an initial injury
claim, the closing report must include objective findings documenting any permanent
work restriction that:
(i) Prevents the worker from
returning to the job held at the time of injury; and
(ii) Is caused in any part
by an accepted condition, a direct medical sequela of an accepted condition, or
a condition directly resulting from the work injury.
(C) In a new or omitted condition
claim, the closing report must include objective findings documenting any permanent
work restriction that:
(i) Prevents the worker from
returning to the job held at the time of injury; and
(ii) Is caused in any part
by an accepted new or omitted condition or a direct medical sequela of an accepted
new or omitted condition.
(D) In an aggravation claim,
the closing report must include objective findings documenting any permanent work
restriction that:
(i) Prevents the worker from
returning to the job held at the time of injury; and
(ii) Is caused in any part
by an accepted worsened condition or a direct medical sequela of an accepted worsened
condition.
(E) In an occupational disease
claim, the closing report must include objective findings documenting any permanent
work restriction that:
(i) Prevents the worker from
returning to the job held at the time of injury; and
(ii) Is caused in any part
by an accepted occupational disease or a direct medical sequel of an accepted occupational
disease.
(c) A statement regarding
the validity of an impairment finding is required in the following circumstances:
(A) If the examining physician
determines that a finding of impairment is invalid, the closing report must include
a statement that identifies the basis for the determination that the finding is
invalid.
(B) If the examining physician
determines that a finding of impairment is valid but the finding is not addressed
by any applicable validity criteria under Bulletin 239, the closing report must
include a statement that identifies the basis for the determination that the finding
is valid.
(C) If the examining physician
chooses to disregard applicable validity criteria under Bulletin 239 because the
criteria are medically inappropriate for the worker, the closing report must include
a statement that describes why the criteria would be inappropriate.
[ED. NOTE: Appendices referenced are
available from the agency.]
Stat. Auth.: ORS 656.726(4)
& 656.245(2)(b)
Stats. Implemented: ORS 656.245
& 656.252
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; Renumbered from
436-069-0601, 5-1-85; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95;
WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0080; WCD 11-1998,
f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 5-2006, f. 6-15-06, cert. ef. 7-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08;
WCD 12-2007(Temp), f. 12-14-07, cert. ef. 1-2-08 thru 6-29-08; WCD 2-2008, f. 6-13-08,
cert. ef. 6-30-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2011, f. 11-18-11,
cert. ef. 1-1-12; WCD 3-2014, f. 3-12-14, cert. ef. 4-1-14; WCD 1-2015, f. 1-29-15,
cert. ef. 3-1-15; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0290
Medical Care After Medically Stationary
(1) A worker is found medically stationary
when no further material improvement would reasonably be expected from medical treatment
or the passage of time. Medical services after a worker’s condition is medically
stationary are compensable only when services are:
(a) Palliative care under
section (2) of this rule;
(b) Curative care under sections
(3) and (4) of this rule;
(c) Provided to a worker
who has been determined permanently and totally disabled;
(d) Prescription medications;
(e) Necessary to administer
or monitor administration of prescription medications;
(f) Prosthetic devices, braces,
or supports;
(g) To monitor the status
of, to replace, or to repair prosthetic devices, braces, and supports;
(h) Provided under an accepted
claim for aggravation;
(i) Provided under Board’s
Own Motion;
(j) Necessary to diagnose
the worker's condition; or
(k) Life-preserving modalities
similar to insulin therapy, dialysis, and transfusions.
(2) Palliative Care.
(a) Palliative care means
that medical services are provided to temporarily reduce or moderate the intensity
of an otherwise stable medical condition. It does not include those medical services
provided to diagnose, heal, or permanently alleviate or eliminate a medical condition.
Palliative care is compensable when the attending physician prescribes it and it
is necessary to enable the worker to continue current employment or a vocational
training program. Before palliative care can begin, the attending physician must
submit a written palliative care request to the insurer for approval. The request
must:
(A) Describe any objective
findings;
(B) Identify the medical
condition for which palliative care is requested by the appropriate ICD diagnosis;
(C) Detail a treatment plan
which includes the name of the provider who will provide the care, specific treatment
modalities, and frequency and duration of the care, not to exceed 180 days;
(D) Explain how the requested
care is related to the compensable condition; and
(E) Describe how the requested
care will enable the worker to continue current employment, or a current vocational
training program, and the possible adverse effect if the care is not approved.
(b) Palliative care may begin
after the attending physician submits the request to the insurer. If the insurer
approves the request, palliative care services are payable from the date service
begins. However, if the request is ultimately disapproved, the insurer is not liable
for payment of the palliative care services.
(c) Insurers must date stamp
all palliative care requests upon receipt. Within 30 days of receiving the request,
the insurer must send written notice to the attending physician, worker, and worker’s
attorney approving or disapproving the request.
(d) If the insurer disapproves
the request, the insurer must explain the reason why in writing. Reasons to disapprove
a palliative care request may include:
(A) The palliative care services
are not related to the accepted condition(s);
(B) The palliative care services
are excessive, inappropriate, or ineffectual; or
(C) The palliative care services
will not enable the worker to continue current employment or a current vocational
training program.
(e) When the insurer disapproves
the palliative care request, the attending physician or the worker may request administrative
review before the director under OAR 436-010-0008. The request for review must be
within 90 days from the date of the insurer’s disapproval notice. In addition
to information required by OAR 436-010-0008, if the request is from the attending
physician, it must include:
(A) A copy of the original
request to the insurer; and
(B) A copy of the insurer’s
response.
(f) If the insurer fails
to respond to the request in writing within 30 days, the attending physician or
worker may request approval from the director within 120 days from the date the
request was first submitted to the insurer. When the attending physician requests
approval from the director, the physician must include a copy of the original request
and may include any other supporting information.
(g) Subsequent requests for
palliative care are subject to the same process as the initial request; however,
the insurer may waive the requirement that the attending physician submit a supplemental
palliative care request.
(3) Curative Care. Curative
medical care is compensable when the care is provided to stabilize a temporary and
acute waxing and waning of symptoms of the worker’s condition.
(4) Advances in Medical Science.
The director must approve curative care arising from a generally recognized, nonexperimental
advance in medical science since the worker’s claim was closed that is highly
likely to improve the worker’s condition and that is otherwise justified by
the circumstances of the claim. When the attending physician believes that curative
care is appropriate, the physician must submit a written request for approval to
the director. The request must:
(a) Describe any objective
findings;
(b) Identify the appropriate
ICD diagnosis (the medical condition for which the care is requested);
(c) Describe in detail the
advance in medical science that has occurred since the worker’s claim was
closed that is highly likely to improve the worker’s condition;
(d) Provide an explanation,
based on sound medical principles, as to how and why the care will improve the worker’s
condition; and
(e) Describe why the care
is otherwise justified by the circumstances of the claim.
[Publications: Publications referenced
are available from the agency.]
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.245
Hist.: WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 16-1990(Temp), f. & cert. ef. 8-17-90; WCD
30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92;
WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96,
Renumbered from 436-010-0041; WCD 11-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001,
f. 12-17-01, cert. ef. 1-1-02; WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05; WCD 8-2005,
f. 12-6-05, cert. ef. 1-1-06; WCD 1-2011, f. 3-1-11, cert. ef. 4-1-11; WCD 3-2014,
f. 3-12-14, cert. ef. 4-1-14; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15
436-010-0300
Requesting Exclusion of Medical
Treatment from Compensability
If a worker or insurer believes that
any medical treatment is unscientific, unproven as to its effectiveness, outmoded,
or experimental, either party may initiate a request for exclusion of the medical
treatment from compensability under ORS 656.245(3). The request must include documentation
on why the medical treatment should be excluded from compensability for workers’
compensation claims. The director will request advice from the licensing boards
of practitioners that might be affected and the Medical Advisory Committee. The
director will issue an order and may adopt a rule declaring the treatment to be
noncompensable. The decision of the director is appealable under ORS 656.704. Request
for administrative review of an individual worker’s treatment under ORS 656.327
does not initiate review under this process. Excluded treatments are listed in OAR
436-009-0010.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.245
Hist.: WCD 1-1988, f. 1-20-88,
cert. ef. 2-1-88; WCD 1-1990, f. 1-5-90, cert. ef. 2-1-90; WCD 30-1990, f. 12-10-90,
cert. ef. 12-26-90; WCD 11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD 12-1996, f. 5-6-96,
cert. ef. 6-1-96, Renumbered from 436-010-0045; WCD 11-1998, f. 12-16-98, cert.
ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 2-2005, f. 3-24-05,
cert. ef. 4-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2015, f. 8-20-15,
cert. ef. 10-1-15
436-010-0330
Medical Arbiters and Physician Reviewers
(1) The director will establish and
maintain a list of arbiters. The director will appoint a medical arbiter or a panel
of medical arbiters from this list under ORS 656.268.
(2) The director will establish
and maintain a list of physician reviewers. The director will appoint an appropriate
physician or a panel of physicians from this list to review medical treatment or
medical services disputes under ORS 656.245, 656.260, and 656.327.
(3) When a worker is required
to attend an examination under this rule, the director will provide notice of the
examination to the worker and all affected parties. The notice will inform all parties
of the time, date, location, and purpose of the examination. Examinations will be
at a place reasonably convenient to the worker, if possible.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.268,
656.325 & 656.327
Hist.: WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
11-1992, f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95;
WCD 12-1996, f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0047; WCD 11-1998,
f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 2-2005,
f. 3-24-05, cert. ef. 4-1-05; WCD 2-2008, f. 6-13-08, cert. ef. 6-30-08; WCD 3-2010,
f. 5-28-10, cert. ef. 7-1-10; WCD 1-2012, f. 2-16-12, cert. ef. 4-1-12; WCD 2-2013,
f. 3-11-13, cert. ef. 4-1-13; WCD 3-2014, f. 3-12-14, cert. ef. 4-1-14; WCD 5-2015,
f. 8-20-15, cert. ef. 10-1-15
436-010-0335
Monitoring and Auditing Medical
Providers
(1) The director may monitor and conduct
periodic audits of medical providers to ensure compliance with ORS chapter 656 and
chapter 436 of the administrative rules.
(2) All records maintained
or required to be maintained must be disclosed upon request of the director.
Stat. Auth.: ORS 656.726(4)
Stats. Implemented: ORS 656.245,
656.254, 656.745
Hist.: WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
12-1996, f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0101; WCD 11-1998,
f. 12-16-98, cert. ef. 1-1-99; WCD 13-2001, f. 12-17-01, cert. ef. 1-1-02; WCD 2-2005,
f. 3-24-05, cert. ef. 4-1-05; Renumbered from 436-010-0260 by WCD 5-2015, f. 8-20-15,
cert. ef. 10-1-15
436-010-0340
Sanctions and Civil Penalties
(1) If the director finds any medical
provider in violation of the medical reporting requirements established under ORS
656.245, 656.252, 656.254(1), or 656.325, or OAR 436-009 or 436-010, the director
may impose one or more of the following sanctions:
(a) Reprimand by the director;
(b) Non-payment, reduction,
or recovery of fees in part or whole for medical services provided;
(c) Referral to the appropriate
licensing board;
(d) Civil penalty not to
exceed $1,000 for each occurrence. In determining the amount of penalty to be assessed,
the director will consider:
(A) The degree of harm inflicted
on the worker or the insurer;
(B) Whether there have been
previous violations; and
(C) Whether there is evidence
of willful violations; or
(e) A penalty of $100 for
each violation of ORS 656.325(1)(c)(C).
(2) If the medical provider
fails to provide information under OAR 436-010-0240 within fourteen days of receiving
a request sent by certified mail or fax, penalties under this rule or OAR 436-015-0120
may be imposed.
(3) The director may impose
a penalty of forfeiture of fees and a fine not to exceed $1,000 for each occurrence
on any medical service provider who, under ORS 656.254, and 656.327, has been found
to:
(a) Fail to comply with the
medical rules;
(b) Provide medical services
that are excessive, inappropriate, or ineffectual; or
(c) Engage in any conduct
demonstrated to be dangerous to the health or safety of a worker.
(4) If the conduct as described
in section (3) of this rule is found to be repeated and willful, the director may
declare the medical provider ineligible for reimbursement for treating workers’
compensation patients for a period not to exceed three years.
(5) A medical provider whose
license has been suspended or revoked by the licensing board for violations of professional
ethical standards may be declared ineligible for reimbursement for treating workers’
compensation patients for a period not to exceed three years. A certified copy of
the revocation or suspension order will be prima facie justification for the director’s
order.
(6) If a financial penalty
is imposed on the medical provider for violation of these rules, the provider may
not seek recovery of the penalty fees from the worker.
(7) If an insurer or worker
believes sanctions under sections (1) or (2) of this rule are not appropriate, either
may submit a complaint in writing to the director.
(8) If the director finds
an insurer in violation of the notification provisions of OAR 436-010 limiting medical
services, the director may order the insurer to reimburse any affected medical providers
for services provided until the insurer complies with the notification requirement.
Any penalty will be limited to the amounts listed in section (9) of this rule.
(9) If the director finds
any insurer in violation of statute, OAR 436-009, OAR 436-010, or an order of the
director, the insurer may be subject to penalties under ORS 656.745 of not more
than $2,000 for each violation or $10,000 in the aggregate for all violations within
any three month period. Each violation, or each day a violation continues, will
be considered a separate violation.
(10) The director may subject
a worker who fails to meet the requirements in OAR 436-010-0265(9) to a $100 penalty
per occurrence under ORS 656.325, to be deducted from future benefits.
Stat. Auth.: ORS 656726(4)
Stats. Implemented: ORS 656.245, 656.254
& 656.745
Hist.: WCD 5-1982(Admin),
f. 2-23-82, ef. 3-1-82; WCD 1-1984(Admin), f. & ef. 1-16-84; Renumbered from
436-069-0901, 5-1-85 WCD 1-1988, f. 1-20-88, cert. ef. 2-1-88; WCD 1-1990, f. 1-5-90,
cert. ef. 2-1-90, Renumbered from 436-010-0110(3)(4) & (7); WCD 12-1990(Temp),
f. 6-20-90, cert. ef. 7-1-90; WCD 30-1990, f. 12-10-90, cert. ef. 12-26-90;WCD 11-1992,
f. 6-11-92, cert. ef. 7-1-92; WCD 13-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 12-1996,
f. 5-6-96, cert. ef. 6-1-96, Renumbered from 436-010-0130; WCD 11-1998, f. 12-16-98,
cert. ef. 1-1-990; WCD 3-2000, f. 4-3-00, cert. ef. 4-21-00; WCD 13-2001, f. 12-17-01,
cert. ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03;
WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 2-2005, f. 3-24-05, cert. ef. 4-1-05;
WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2015, f. 8-20-15, cert. ef. 10-1-15

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