Necessity of Treatment

Necessity of treatment provisions can be found in section 102.16 (2m) of the Wisconsin state statutes and are further detailed in DWD Administrative Code, section 80.73

When there is a dispute between a health care provider and an insurer or self-insured employer regarding the necessity of treatment provided to an injured worker, the provider may request the department resolve the dispute. The Department will than obtain and adopt the opinion of an independent medical expert in the same profession.

The cost of the first dispute filed by the provider will be charged to the insurer or self-insured employer. In all subsequent disputes filed by the provider, the losing party will be charged the full cost. The provider is prohibited from collecting the fee from the employee after being notified that the necessity of the treatment is in dispute.

An insurer or self-insured employer that disputes the necessity of treatment provided by a health service provider or the department shall provide reasonable notice to the health service provider that the necessity of that treatment is being disputed. After receiving reasonable notice that the necessity of treatment is being disputed, a health service provider may not collect a fee for that disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

Before determining the necessity of treatment provided for an injured employee, the department shall obtain a written opinion on the necessity of the treatment in dispute from an expert selected by the department. To qualify as an expert, a person must be licensed to practice the same health care profession as the individual health service provider whose treatment is under review and must either be performing services for an impartial health care services review organization or be a member of an independent panel of experts established by the department. The department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion, unless the health service provider or the insurer or self-insured employer present clear and convincing written evidence that the expert's opinion is in error.

The department may set aside, reverse or modify a determination under this subsection within 30 days after the date of the determination. The Department may set aside, reverse or modify a determination within 60 days on grounds of mistake.  A health service provider, insurer or self-insured employer that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23.

NOTICE TO THE PROVIDER

The insurer or self-insurer who refused to pay for treatment rendered to an injured worker because it disputes that any treatment is necessary or in a case where liability or the extent of liability is an issue, is required to give the provider written notice of payment denial within 60 days of receiving a bill. The notice shall specify:

  1. The name of the patient-employee;
  2. The name of the employer on the date of injury;
  3. The date of the treatment in dispute;
  4. The amount charged for the treatment and the amount in dispute;
  5. The reason that the insurer or self-insurer believes the treatment was unnecessary, including the organization and credentials of any person who provides supporting medical documentation;
  6. The provider's right to initiate an independent review by the department within 9 months, including a description of how the costs for the review will be assessed;
  7. The address to use in directing correspondence to the insurer or self-insurer regarding the dispute; and
  8. That pursuant to s. 102.16(2m) (b), Stats., once the notice required by this subsection is received by a provider, the provider may not collect a fee for the disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

If an insurer or self-insurer provides the notice after the 60-day period, or after 60 days the provider has not received a reply from the insurer or self-insurer, the provider may immediately request the department to issue a default order requiring the insurer or self-insurer to pay the full amount in dispute. No dispute shall be submitted to the department for resolution if the dispute is less than $25.00 and treatment with the provider is ongoing. 

NOTICE TO THE INSURER OR SELF-INSURER

After receiving notice from the insurer or self-insurer, the provider shall explain to the insurer or self-insurer in writing why the treatment was necessary to cure and relieve the effects of the injury, including a diagnosis of the condition for which treatment was provided.

RESPONSE BY THE INSURER OR SELF-INSURER

  1. Within 30 days from the date on which the provider sent or delivered notice, an insurer or self-insurer shall notify the provider whether or not it accepts the provider's explanation regarding necessity of treatment.
  2. If the insurer or self-insurer accepts the provider's explanation, the provider's fee must be paid in full, or in an amount mutually agreed to by the provider and insurer or self-insurer, within the 30-day period specified in par. (a).

SUBMITTING DISPUTES TO THE DEPARTMENT

  1. For the department to determine whether or not treatment was necessary a provider shall, after the 30-day notice period has elapsed, apply to the department in writing to resolve the dispute. (Necessity of Treatment Dispute Resolution Request Form WKC-9380) The provider shall apply to the department within 9 months from the date it receives notice from the insurer or self-insurer refusing to pay the provider's bill.
  2. The provider's application to the department shall include copies of all correspondence related to the dispute.
  3. At the time it files the application with the department, the provider shall send or deliver to the insurer or self-insurer which is refusing to pay for the treatment in dispute a copy of all materials submitted to the department.
  4. When an application to resolve a dispute is submitted, the department shall notify the insurer or self-insurer that it has 20 days to either pay the bill in full for the treatment in dispute or to file an answer under par. (e) for the department to use in the review process.
  5. The answer shall include copies of any prior correspondence relating to the dispute, which the provider has not already filed, and any other material that responds to the provider's application. The answer shall include the name of the organization, and credentials of any individual, whose review of the case has been relied upon in reaching the decision to denying payment.

REVIEW PROCESS

  1. After the 20-day period for the insurer or self-insurer to answer has passed, the department shall provide a copy of all materials in its possession relating to a dispute to an impartial health care services review organization, or to an expert from a panel of experts established by the department, to obtain an expert written opinion on the necessity of treatment in dispute.
  2. In all cases where the dispute involves a Wisconsin provider, the expert reviewer shall be licensed to practice in Wisconsin.
  3. When necessary to provide a fair and informed decision, the expert may contact the provider, insurer or self-insurer for clarification of issues raised in the written materials. Where the contact is in writing, the expert shall provide all parties to the dispute with a copy of the request for clarification and a copy of any responses received. Where the contact is by phone, the expert shall arrange a conference call giving all parties an opportunity to participate simultaneously.
  4. Within 90 days of receiving the material from the department the review organization or panel shall provide the department with the expert's written opinion regarding the necessity of treatment, including a recommendation regarding how much of the provider's bill the insurer or self-insurer should pay, if any. At the same time that it provides an opinion to the department, the review organization or panel on which the expert serves shall send a copy of the opinion to the provider and the insurer or self-insurer which are parties to the dispute.
  5. The provider, insurer or self-insurer shall have 30 days from the date the expert's opinion is received by the department to present written evidence to the department that the expert's opinion is in error. Unless the department receives clear and convincing written evidence that the opinion is in error, the department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion.
  6. If the necessity of treatment dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of the disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the necessity of treatment dispute until a hearing is held or an order is issued resolving the dispute between the injured employee and the insurer or self-insurer.
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