We are somewhat confident that most claims professionals are aware the law requires utilization review (UR) to issue a decision within five business days of receipt of a request for authorization (RFA). It’s called the five-day rule. However, the amount of litigation occurring over interpretation of this rule is absolutely mind boggling. We are not joking when we say that parties are continuously going to the Board over the issue of how to count to five. Allow us to explain.
The five-day rule is rather easy to explain. When a physician submits a prospective or concurrent RFA then pursuant to LC § 4610(i)(1), UR has up to five business days to respond. That sounds simple enough. However, three issues are often raised questioning how UR counted to five:
- Is the day of receipt of the RFA considered day one? Case law clearly states the date of receipt is not day one. Instead, the first business day after the RFA is received is day one. However, if an RFA is received past 5:30pm (pacific time) it is considered received the following business day, except in cases of expedited or concurrent review (CCR 9792.9.1(a)(1)).
- What is a business day? Labor Code §4600.4(b) provides the following definition: “(A) ‘normal business day’ does not include Saturday, Sunday, or any day that is declared by the Governor to be an official state holiday or a holiday listed on the Department of Human Resources internet website.” Prior to 1/1/2020 a major dispute existed over whether Saturday counted as a business day, but all that changed when California adopted Labor Code §4600.4(b), effective 1/1/2020, specifically excluding Saturday as a business day.
- What holidays are recognized as non-business days? In workers’ compensation only state holidays (as opposed to federal holidays) are considered non-business days. Official state holidays are defined as follows:
- as those days published by the California Department of Human Resources on their website at https://www.calhr.ca.gov/employees/Pages/state-holiday.aspx
- any day declared a state holiday by the Governor.
When proceeding to the board on a five-days rule dispute, we recommend that the claims administrator present a guide for the judge to reference using the following format:
| Aug 29, Wednesday | Prospective review RFA received after 5:30pm via fax |
| Aug 30, Thursday | RFA legal receipt date |
| Aug 31, Friday | Day One |
| Sept 1, Saturday | Weekend |
| Sept 2, Sunday | Weekend |
| Sept 3, Monday | Holiday – Labor Day |
| Sept 4, Tuesday | Day Two |
| Sept 5, Wednesday | Day Three |
| Sept 6, Thursday | Day Four |
| Sept 7, Friday | Day Five – Decision Issued; faxed & mailed that day to physician, applicant attorney and applicant |
In the above example one can easily understand why there has been so much litigation over the timeliness of UR decisions. Here we have an RFA that was faxed to the claims administrator on Wednesday, Aug. 29th where a decision was not issued until Friday, Sept 7th, and yet, the UR determination was still timely. Be prepared to prove timeliness because the burden of proof falls on the administrator.
We at F+B hope we have clarified how to count to five as workers’ compensation looks seriously at timeliness of UR decisions. If there are any questions, please feel free to contact the experts here at Friedman + Bartoumian.
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