Stuck in Limbo: How the workers’ compensation pre-authorization process makes injured workers feel stuck in the sand~5 min read

Everyone wants to be paid. As a lawyer, I do understand that. However, at the intersection of wanting to be paid, and wanting to get necessary medical care is a process in workers’ compensation cases call the pre-approval or pre-authorization process. This is when a medical provider asks the workers’ compensation insurer to pre-approve or authorize a specific type of medical treatment like surgery, therapy, injections or other treatment. The provider does this so they can guarantee they receive payment, as they express concern that they could provide the care and be left holding the bill.  Conversely, the injured worker just wants to get the necessary medical care that gets them on the path to recovery and return to work.

New Hampshire manages this conflict under RSA 281-A:23 (governing payment of medical bills and services), and New Hampshire Administrative Rule, Chapter 507.05. The administrative rule identifies the requirements to trigger the pre-approval process. This requires the medical provider state, in writing, (1) the nature of the proposed care, (2) how the proposed care is required to address the problems that are the result of the work-related injury, (3) the anticipated benefit of the care, and (4) the estimated cost for the repair.  If the medical provider answers these questions in writing, then under 507.05(b) the insurance carrier has twenty (20) days to approve or deny the care. If the insurance carrier denies the care, then the injured worker has a right under RSA 281-A:23 to request a hearing on whether the denial was lawful. If the insurance carrier ignores the request, then the injured worker has a right to request a hearing on the twenty-first (21^st) day after the pre-approval request is sent to the insurance carrier.

So, if this is laid out by statute, the question becomes, why is this a problem?

First, it is normal practice for medical providers to call the insurance carrier and request pre-approval. Often, the insurance carrier states, over the phone, that they are “denying” the care. The insurer then does not provide a written denial. So, in this instance, a medical provider believes the pre-approval was denied and refuses to perform the service. Unfortunately, however, the injured worker cannot request a hearing with the Department of Labor on those facts. The injured worker must obtain the written pre-approval letter in compliance with 507.05 and then send it to the insurer. If this is not done, then the injured worker cannot get a hearing as there was no compliance with the required underlying rule. It is certainly a question of this author whether insurers are aware of what the pre-approval process requires and knowingly provides a verbal denial understanding that is not actionable. Thus, in this situation, the injured worker is denied necessary medical care all because the medical provider didn’t write a letter.

Second, there is often an issue from the medical provider’s perspective in providing a written letter that addresses all four points under the rule. They may view this as a “narrative report” request and send you a bill. Unfortunately, it is not a narrative report request and is simply compliance with the law. Medical providers, however, are not required to answer those four questions. Thus, you can have a situation where the medical provider believes the treatment to be reasonable, causal and necessary; the injured worker needs the treatment; and yet no treatment occurs because there is no guarantee of payment.

In these situations, injured workers end up in a limbo state. Limbo is defined as “an uncertain period of awaiting a decision or resolution; an intermediate state or condition”.

As attorneys, our options are generally to write to the provider, implore them to follow 507.05, and hope they do so. At least at that point, we can request a hearing. However, providers often will say no, and that leaves the injured worker with no real relief. If they have health insurance, then they can try to use that as a backup, and have the bill sent to the insurance carrier after treatment is provided. Sometimes, this can be another way to try to get the necessary treatment and then could appeal the denial once that bill is sent post-treatment to the insurance carrier.

Injured workers with no health insurance have no such options. For them, they have no options for relief if their medical provider refuses to comply with Rule 507.05 or is unwilling to perform the treatment without a guarantee of payment. This creates a situation where they are stuck in limbo and have no options for relief.

So, what are our options to address this shortfall?

First, education of medical providers is paramount. Often, I explain that this rule is an important part of ensuring they get paid, while also protecting the rights of the injured worker. Educating providers that this process is simple and can allow for an order directing payment for the service can help narrow the gap for injured workers.

Second, the legislature and rules committee should look at modifying Rule 507.05 to allow a hearing request from an injured worker where the provider certifies they called the insurer to obtain pre-approval and were advised it was denied. Insurers should not be able to hide the consequences of their decisions behind the veil of a phone call.

Ultimately, it is important to try to be proactive in these situations, and to try to get the medical providers to comply with the rule. I often analogize the pre-approval letter to a letter of medical necessity that health insurers want. My hope in doing so is to normalize this process, and outline ways for the provider to comply that do not require lengthy letters.

All my injured worker clients just want to get back to their normal lives pre-injury. The pre-approval process is not efficient, creates situations where injured workers cannot get necessary care, and should be amended to allow more freedom to compel necessary care.

If you find yourself frustrated with the workers’ compensation process, the experienced attorneys at PMM Law can help.

• This article was also published in the August edition of the New Hampshire Bar news.