SBR-1 vs Objection Letter For Copy Services

Is a copy service required to answer/object to an Explanation Of Review (EOR) using an SBR-1 form, or can the copy service simply “object” to the non-payment and EOR? My personal position after researching this is that an SBR-1 is NOT required for 99% of all copy service disputes. More precisely, whenever the dispute must be settled at the WCAB, and not Bill Review, all that is needed is an “objection”. It is only when the Payer’s objection is limited to ONLY the amount of the payment according to a Fee Schedule, and the dispute must go through IBR, that timely service of an SBR-1 is required.

Let’s analyze this together…

LABOR CODE

Labor Code Section 4622 is the Legislature’s legal procedures for handling medical legal expenses. We know that copying services are all considered medical legal expenses, regardless of the type of records that were copied, because the WCAB told us this in the en banc case of Luis Martinez vs Anna Terrazas 78 Cal. Comp. Cases 444. The issue we are reviewing here is what format or form must be used by the provider of the services to dispute the payer’s under/non payment position and served EOR.

Subsection (b) of Labor Code Section 4622 states that if the provider contests the AMOUNT PAID, then the Provider may request a SECOND REVIEW within 90 days of service of the EOR. This subsection lists the requirements of a Second Review, and states that it should be made on a form prescribed by the Administrative Director of the DWC. This is the SBR-1 form.

However, what happens when the Payer refuses to pay anything towards the invoice, and instead objects to the Invoice in its entirety based on some issue OTHER THAN the amount to be paid according to a Fee Schedule? That instruction is found in subsection (c) of Labor Code 4622. This subsection says “If the employer denies all or a portion of the amount billed for any reason other than the amount to be paid pursuant to the fee schedules in effect on the date of service, the provider may object to the denial within 90 days of the service of the explanation of review.” There is no mention of using a form prescribed by the Administrative Director of the DWC, and there are no requirements listed for this type of objection.

You might be thinking “So what, both subsections are talking about disputing the Payer’s position, so it’s the same form and requirements.” I disagree…

IBR TRACK vs WCAB TRACK

There are TWO separate/distinct TRACKS to resolving disputes over payment of medical legal expenses. Track 1 is Independent Bill Review (IBR), which is a dispute process designed to resolve amounts to be paid according to a fee schedule that is in place at the time of the services. This track is described in subsection (b) of LC 4622. The IBR process is not designed to resolve LEGAL disputes that have nothing to do with the Fee Schedule and amounts to be paid. Track 2 is the WCAB District Office and a WCJ. Track 2 is used to resolve LEGAL disputes that don’t have anything to do with the amounts to be paid according to a fee schedule. This track is described in subsection (c) of LC 4622.

IBR TRACK

For Track 1, or IBR, the Administrative Director designed form SBR-1 for Providers to use to object to an EOR and underpayment, and start the process of IBR. This form includes specific information regarding the amount to be paid under a Fee Schedule. The form is not designed to resolve other types of legal disputes that would be resolved by the WCAB. In fact, if you try to use the SBR-1 form to resolve legal disputes through the WCAB, it doesn’t really seem appropriate.

SBR-1 FORM INSTRUCTIONS

If you look at the INSTRUCTIONS for the SBR-1 form, which is the second page, and read under “Overview” it says “The second bill review process must be completed before a provider can seek independent bill review of a billing dispute.” This indicates that if the copy service is not intending to go through IBR, the second bill review process is not appropriate. Now read further down under “When To Apply“, where it states “If an issue that would preclude your right to receive compensation for the submitted bill is under consideration by the Workers’ Compensation Appeal Board (WCAB), you have 90 days from the date of the service of the WCAB order that resolves the issue to request the second bill review.”

SO, it seems clear on the face of the SBR-1 form that the Administrative Director of the DWC does NOT intend for the form to be used if the issues raised would preclude the Provider’s right to receive ANY compensation because of other types of issues that must be resolved through the WCAB.

Let’s turn to the Regulations and see if they shed more light on this…

DWC REGULATIONS

First, let’s review the DWC’s regulations on medical legal disputes. Cal. Code of Regs. Section 9794(d) states “If the provider disputes the amount of payment made by the claims administrator on a bill for medical-legal expenses following the receipt of an explanation of review issued under subdivision (c), the provider must request the claims administrator to conduct a second review of the bill. The second bill review request must be made according to the provisions of California Code of Regulations, title 8, section 9792.5.5.” Note that this applies when the dispute is the amount of the payment, and not necessarily when no payment is made because of issues unrelated to Bill Review or a Fee Schedule. However, let’s move on and see what the referenced section 9792.5.5 says, since that seems to govern how we must object…

Cal. Code of Regs. Section 9792.5.5(c) states “The request for second review must be made as follows”, and then subsection (1) states “For a non-electronic medical treatment bill, the second review shall be requested on either:” …. and then subsection (1)(B) states “The Request for Second Bill Review form, DWC Form SBR-1, set forth at section 9792.5.6. The DWC Form SBR-1 shall be the first page of the request for second review submitted by the provider.” The reference to section 9792.5.6 is the actual form itself, making the included INSTRUCTIONS page of the form part of the DWC’s formal regulations on the issue. So….

As described in detail above, the Instructions page of the form that is Cal. Code of Regs. Section 9792.5.6 states that the SBR-1 form is not required to be served until 90 days after service of the order by the WCAB that resolved the disputes unrelated to Independent Bill Review (IBR).

In other words, the DWC’s regulations indicate that service of an SBR-1 form is not NECESSARY when the matter must be resolved by the WCAB and is not currently subject to (or appropriate for) Independent Bill Review (IBR). The dispute must go through the WCAB dispute process FIRST, and after those disputes are resolved and if there are still disputes over the amount paid according to a Fee Schedule, only THEN must an SBR-1 be served (within 90 days of said Order).

WCAB REGULATIONS

NEXT, let’s review the WCAB’s regulations on that matter, which is contained in Cal. Code of Regs. Section 10786. Subsection (g) states “(g) A medical-legal provider’s bill will be deemed satisfied, and neither the employee nor the employer shall be liable for any further payment, if the defendant issued a timely and proper EOR and made payment consistent with that EOR within 60 days after receipt of the provider’s written billing and report and the provider failed to make a timely and proper request for second review in the form prescribed by the Rules of the Administrative Director within 90 days after service of the EOR.” We just went over in detail the “form prescribed by the Rules of the Administrative Director” and concluded that service of an SBR-1 is NOT REQUIRED when the dispute is to be resolved by the WCAB until 90 days after the Order is issued by the WCAB resolving those disputes. In other words, the WCAB disputes get resolved FIRST, and then the IBR disputes get resolved. Before the WCAB’s regulation was renumbered to 10786 it was 10451.1, and that version of the regulation actually stated this two-track process pretty clearly. It’s odd that the WCAB changed the section during the renumbering and made this less clear.

CONCLUSION

SO FINALLY... this leaves us with the requirement in Labor Code Section 4622(c), which is that the Provider must “object” within 90 days if the EOR raises disputes that are unrelated to Independent Bill Review and requires the WCAB to resolve. It appears from all our research and analysis up to this point that the Provider need only serve an “objection”, and that the objection need not be on an SBR-1 form. It certainly COULD be, but doesn’t HAVE to be.

With all that said, Providers may want to attach a completed SBR-1 form anyway, just to avoid a Judge’s opinion that is different than our analysis. However, it was good to go through this exercise for those instances when an SBR-1 was not served within 90 days of receipt of an EOR, but there was some other indication that the Provider objected to the Payer’s position. Could a Payer argue that re-sending the invoices again within 90 days is an “objection”? That’s a debate for another day.