By Sarah G. Byrne

Shortly before Christmas, my brother posted a picture of my nephew on Facebook. He was sporting a tee-shirt challenging Santa to define the word “good.” My first thought: He’ll be a lawyer. After all, lawyers are wordsmiths who agonize over every word in order to re-define the rules.

Speaking of, the Rules of the Workers’ Compensation Program Utilization Review have been amended and will be effective Jan. 29, 2017. The pending rules are available here. Many of the changes add, clarify or expound upon definitions, and some changes are substantive.

1. Rule 0800-02-06-.07(6) gives the Court of Workers’ Compensation Claims authority to review the medical director’s decision. The aggrieved party will have seven business days from receipt of the decision to file a Petition for Benefit Determination for Court intervention.
2. Rule 0800-02-06-.04(2) will allow the Bureau to treat any utilization review modification as a denial for the purpose of determining an appeal.
3. Rule 0800-02-06-.06(7)(a) provides that a denial will be effective for six months “unless there is a material change documented by the treating physician” or “other pertinent information [presented] that was not used by the utilization review organization in making the initial decision.”
4. Rule 0800-02-06-.01(20), which defines “utilization review” itself, is amended to include “pain management for a period of time exceeding ninety (90) days from the initial prescription” of Schedule II, III or IV controlled substances, matching Tennessee Code Annotated section 50-6-102(20). The rule also added the words “necessity” and “efficiency,” so that the function of utilization review now encompasses “evaluation of the necessity, appropriateness, efficiency and quality of medical services.”
5. Rule 0800-02-06-.01(9) defines “health care provider” to include “occupational therapists, optometrists, podiatrists, pharmacists” and any other entity providing treatment for a work-related injury “within the scope of their [sic] license.”
6. Rule 0800-02-06-.01(16) defines the word “pre-authorization” to mean “the employer, prospectively or concurrently, authorizes the payment of medical benefits” and “does not mean that the employer accepts the claim or has made a final determination on the compensability of the claim.”

The addition of some words provides better consistency with other sections of the Tennessee Code. For example, the definition of “medical necessity” now coincides with the definition used in Tennessee Code Annotated section 56-61-102(23), the Tennessee Health Carrier Grievance and External Review Procedure Act. Similarly, the definitions of “outpatient” and “inpatient” will be consistent with definitions used by Medicare.

The amended Rules will impose at least one new deadline. If a denial of recommended treatment is appealed to the Bureau, an employer will have five business days from the Bureau’s request to provide a copy of the utilization review report and all records used to reach the denial. See Rule 0800-02-06-.06(3).

Along the vein of meeting deadlines, the naughty should take note: The penalty provisions of section 50-6-118 will be applicable to utilization review determinations. See Rule 0800-02-06-.07(3). Further, if the Bureau’s fee for conducting the utilization review appeal is not paid by the employer within 30 calendar days of completion of the appeal, a penalty of $50 to $5,000 may be assessed and “if unpaid for a further 30 days, the Administrator may impose further civil penalties or sanctions, or request that the Department of Commerce and Insurance apply penalties/sanctions in accordance with their policies.” See Rule 0800-02-06-.07(2)(c).

Speaking of penalties for the naughty, I called my brother to ask how my nephew fared in his petition to Santa to re-define “good.” As I suspected, he does have lawyering skills, because Santa came to visit. Apparently, my nephew accomplished the visit with some written negotiation and an impish smile alone; no oral arguments were necessary.

Sarah G. Byrne is staff attorney for Judge Joshua D. Baker of the Court of Workers’ Compensation Claims. She holds a law degree from the Nashville School of Law, a masters’ degree in English from Simmons College, and a bachelors’ degree in journalism from Belmont University.  She joins the Court from Mediation and Ombudsman Services of Tennessee (MOST), where she mediated disputed issues in workers’ compensation claims.