Or. Admin. Code § 436-009-0008 - Request for Review before the Director
(1)
General.
(a) Except as otherwise provided in ORS
656.704, the director has
exclusive jurisdiction to resolve all disputes concerning medical fees,
nonpayment 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) As provided in ORS
656.704(3)(b),
the following disputes are in the jurisdiction of the board and will be
transferred:
(A) A dispute that requires a
determination of the compensability of the medical condition for which medical
services are proposed; and
(B) A
dispute that requires a determination of whether a sufficient causal
relationship exists between medical services and an accepted claim.
(c) A party does not need to be
represented to participate in the administrative review before the
director.
(d) Any party may request
that the director provide voluntary mediation or alternative dispute resolution
after a request for administrative review or hearing is filed.
(e) A request for administrative review under
this rule may also be filed as prescribed in OAR 438-005.
(2)
Time Frames and Conditions.
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 absent a showing of 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. When a
party mistakenly sends an appeal of an MCO action or decision to the division,
the division will forward the appeal to the MCO. The MCO must use the original
mailing date of the appeal mistakenly sent to the division when determining
timeliness of the appeal.
(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 had given written notice of
representation to the insurer at the time the MCO issued its decision, the
60-day time frame begins when the MCO issues its final decision to the
attorney. 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:
(A) A worker must request administrative
review before the director within 90 days of the date the worker knew, or
should have known, there was a dispute over the provision of medical services.
If the worker is represented, and the worker's attorney has given 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.
(B) A medical provider must request
administrative review within 90 days of the mailing date of the most recent
explanation of benefits or a similar notification the provider received
regarding the disputed service or fee. Rebillings without any relevant changes
will not provide a new 90-day period to request administrative
review.
(C) An insurer must request
administrative review within 90 days of the date action on the bill was due
under OAR 436-009-0030.
(D) 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.
(d) Within 180 days of the date a bill is
paid, an insurer may request a refund from a provider for any amount it
determines was overpaid for a compensable medical service. If the provider does
not respond to the request, or disagrees that a service was overpaid, the
insurer may request director review within 90 days of requesting the
refund.
(e) 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.
(A) The
requesting party must simultaneously notify all other interested parties and
their representatives, if known, of the dispute. The notice must:
(i) Identify the worker's name, date of
injury, insurer, and claim number;
(ii) Specify the issues in dispute and the
relief sought; and
(iii) Provide
the specific dates of the unpaid disputed treatment or services.
(B) If the request for review is
submitted by either the insurer or the medical provider, it must state specific
codes of services in dispute and include enough documentation to support the
request, including copies of original bills, chart notes, bill analyses,
operative reports, any correspondence between the parties regarding the
dispute, and any other documentation necessary to review the dispute. The
insurer or medical provider requesting review must provide all involved parties
a copy of:
(i) The request for
review;
(ii) Any attached
supporting documentation; and
(iii)
If known, an indication of whether or not there is an issue of causation or
compensability under subsection (1)(b) of this rule.
(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, 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 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. 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 other than 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.
(4)
Dispute Resolution by
Agreement (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.
(5)
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 received by 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.
(6)
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 order under ORS
656.245,
656.248,
656.260, or
656.327, or within 60 days of
the mailing date of an order under ORS
656.247. OAR 436-001 applies to
the hearing.
(b) In the review of
orders issued under ORS
656.245(3) or
656.247, 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 board as follows:
(A) A written request
for a hearing must be mailed or submitted to the division. The request must
specify the grounds upon which the proposed order or assessment is
contested.
(B) The request must be
mailed or submitted to the division within 60 days after the mailing date of
the order or notice of assessment.
(C) The division will forward the request and
other pertinent information to the board.
(7)
Other Proceedings.
(a) Director's administrative review of other
actions not covered under sections (1) through (6) of this rule: Any party
seeking an action or decision by the director, or any party aggrieved by an
action taken by another party, may request administrative review before the
director. Any party may request administrative review as follows:
(b) A written request for review must be sent
to the division within 90 days of the disputed action and must specify the
grounds upon which the action is contested.
(c) The division may require and allow such
input and information as it deems appropriate to complete the review.
Notes
Statutory/Other Authority: ORS 656.704 & 656.726(4)
Statutes/Other Implemented: ORS 656.704
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