Or. Admin. Code § 436-015-0008

Current through Register Vol. 63, No. 10, October 1, 2024

Section 436-015-0008 - Request for Review before the Director

(1) The process for administrative review is as follows:

(a) Any party that disagrees with an action of an MCO must first use the MCO's dispute resolution process. If the party does not appeal the MCO's decision, 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. 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) Within 60 days of the date the MCO issues a final decision under the MCO's dispute resolution process, the aggrieved party must file a written request for administrative review with the division. The request must specify the grounds upon which the action is contested. If a party has been denied access to an MCO dispute resolution process because the complaint or dispute was not included in the MCO's dispute resolution process or because the MCO's dispute resolution process was not completed for reasons beyond a party's control, the party must request administrative review within 60 days of the failure of the MCO to issue a 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.

(c) The director will create a documentary record sufficient for judicial review. The director may require and allow the parties to submit input and information appropriate to complete the review.

(d) The director will review the record and issue an order. The order must specify that it will become final within 30 days of the mailing date of the order unless a written request for hearing is filed with the division.

(2)Dispute Resolution by Agreement. Any party may request that the director provide voluntary mediation or alternative dispute resolution after a request for administrative review or hearing is filed. When a dispute is resolved by agreement of the parties to the director's satisfaction, the agreement must be in writing and approved by the director. If the dispute does not resolve through mediation, administrative review will continue.

(3)Physician Review (e.g., appropriateness). If the director determines an evaluation by a physician is indicated to resolve the dispute, the director may appoint an appropriate medical service provider or panel of providers under ORS 656.325(1) to review the medical records and, if necessary, examine the worker and perform any necessary and reasonable medical tests, other than invasive tests. The worker may refuse an invasive test without sanction.

(a) A single physician selected to conduct an evaluation must be a practitioner of the same healing art and specialty, if practicable, as 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, as the medical service provider whose treatment or service is being reviewed.

(c) When an examination of the worker is required, the director will notify the appropriate parties of the date, time, and location of the examination. No party may directly contact the physician or panel except as it relates to the examination date, time, location, and attendance. If the parties want the physician or panel to address specific questions, the parties must submit these questions to the director for screening. The director will determine the appropriateness of the questions. Matters not related to the issues before the director are inappropriate for medical evaluation, and the director will not submit questions regarding such matters to the evaluating physician(s). The evaluation may include:

(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.

(4)Hearings. Except as provided in sections (5) and (6), any party that disagrees with an order under these rules may file a request for hearing as provided in OAR 436-001-0019 within 30 days of the mailing date of the order. OAR 436-001 applies to the hearing. In the review of orders issued under ORS 656.260(15) and (16), no new medical evidence or issues will be admitted at hearing. In these reviews, administrative orders may be modified at hearing only if the administrative order is not supported by substantial evidence in the record or reflects an error of law. The dispute may be remanded to the MCO for further evidence taking, correction, or other necessary action if the administrative law judge or director determines the record has been improperly, incompletely, or otherwise insufficiently developed.

(5)Request for Hearing on Proposed Sanctions and Civil Penalties. Under ORS 656.740, any party that disagrees with a proposed order or proposed assessment of civil penalty issued by the director under ORS 656.745, or to a civil penalty or cease and desist order issued under ORS 656.260(21), may request a hearing by the Hearings Division of the Workers' Compensation Board (board) as follows:

(a) The party must file a written request for a hearing with the division within 60 days after the mailing date of the proposed order or assessment. The request must specify the grounds upon which the proposed order or assessment is contested.

(b) The division will forward the request and other pertinent information to the board.

(c) An administrative law judge from the Hearings Division, acting on behalf of the director, will conduct the hearing under ORS 656.740 and ORS chapter 183.

(6)MCO Certification Suspension or Revocation. Hearings on the suspension or revocation of an MCO's certification:

(a) At a show-cause hearing on a notice of intent to suspend issued under OAR 436-015-0080(2), the MCO must present evidence regarding why it should be permitted to continue to provide services under these rules.

(A) If the director determines that the acts or omissions of the MCO justify suspension of the MCO's certification, the director may issue an order suspending the MCO for a period of time up to a maximum of one year or may initiate revocation proceedings under OAR 436-015-0080(5). If the director determines that the acts or omissions of the MCO do not justify suspension, the director will issue an order withdrawing the notice.

(B) If the MCO disagrees with the order, the MCO may file a request for hearing as provided in OAR 436-001-0019 within 60 days of the mailing date of the order.

(C) OAR 436-001 applies to the hearing.

(b) A revocation issued under OAR 436-015-0080(5) becomes effective 10 days after service of such notice upon the MCO unless, within such period of time, the MCO corrects the grounds for revocation to the satisfaction of the director or files a written request for a show cause hearing with the division.

(A) If the MCO requests a hearing, the division will set a date for a show cause hearing and will give the MCO at least 10 days notice of the time and place of the hearing. At hearing, the MCO must show cause why it should be permitted to continue to provide services under these rules.

(B) Within 30 days after the hearing, the director will issue an order affirming or withdrawing the revocation.

(C) If the MCO disagrees with the order, the MCO may file a request for hearing as provided in OAR 436-001-0019 within 60 days of the mailing date of the order.

(D) OAR 436-001 applies to the hearing.

(c) An emergency revocation issued under OAR 436-015-0080(7) is effective immediately. The MCO may file a request for hearing as provided in OAR 436-001-0019 within 60 days of the mailing date of the order. OAR 436-001 applies to the hearing.

Or. Admin. Code § 436-015-0008

WCD 11-1990(Temp), f. 6-19-90, cert. ef. 7-1-90; WCD 33-1990, f. 12-12-90, cert. ef. 12-26-90; WCD 14-1994, f. 12-20-94, cert. ef. 2-1-95; WCD 13-1996, f. 5-6-96, cert. ef. 6-1-96; WCD 12-1998, f. 12-16-98, cert. ef. 1-1-99; WCD 13-1999(Temp), f. & cert. ef. 10-25-99 thru 4-21-00; Administrative correction 6-13-01; WCD 3-2002, f. 2-25-02 cert. ef. 4-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 6-2004, f. 6-14-04, cert. ef. 6-29-04; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; 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 5-2018, amend filed 03/15/2018, effective 4/1/2018; WCD 2-2019, amend filed 03/11/2019, effective 4/1/2019; WCD 16-2020, minor correction filed 11/30/2020, effective 11/30/2020

Statutory/Other Authority: ORS 183.310 - 183.550, ORS 656.260, 656.325, 656.704 & 656.726(4)

Statutes/Other Implemented: ORS 656.260, 656.325 & 656.704