Oregon Administrative Rules › Chapter 436 - DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, WORKERS' COMPENSATION DIVISION › Division 10 - MEDICAL SERVICES › Section 436-010-0250 - Elective Surgery

Current through Register Vol. 63, No. 7, July 1, 2024
(1) "Elective
			 surgery" is surgery that may be required to recover from an injury or illness,
			 but is not an emergency surgery to preserve life, function, or
			 health.
(2) Except as otherwise
			 provided by the MCO:
(a) The attending
			 physician, authorized nurse practitioner, or specialist physician must give the
			 insurer at least seven days notice before the date of the proposed elective
			 surgery to treat a compensable injury or illness. The notice must provide the
			 medical information that substantiates the need for surgery, and the
			 approximate surgical date and place if known. To notify the insurer of the
			 proposed surgery, the provider has the option of using Form 5425 (Elective
			 Surgery Notification) or using their own form that includes the data gathered
			 on Form 5425.
(b) When elective
			 surgery is proposed, the insurer may require an independent consultation
			 (second opinion) with a physician of the insurer's choice.
(c) The insurer must respond to the
			 recommending physician, the worker, and the worker's representative within
			 seven days of receiving the notice of intent to perform surgery that the
			 proposed surgery:
(A) Is approved;
(B) Is not approved and a consultation is
			 requested by using Form 3228 (Elective Surgery Response); or
(C) Is disapproved by using Form
			 3228.
(d) If the insurer
			 does not complete Form 3228 (e.g., no specific date or consultant name) or
			 communicate approval to the recommending physician within seven days of
			 receiving the notice of intent to perform surgery, the insurer is barred from
			 challenging the appropriateness of the surgery or whether the surgery is
			 excessive or ineffectual. The attending physician and the worker may decide
			 whether to proceed with surgery.
(e) If the insurer requests a consultation,
			 it must be completed within 28 days after sending Form 3228 to the
			 physician.
(f) The insurer must
			 notify the recommending physician of the consultant's findings within seven
			 days of the consultation.
(g) When
			 the consultant disagrees with the proposed surgery, the recommending physician
			 and insurer should attempt to resolve disagreement. The insurer and
			 recommending physician may agree to obtain additional diagnostic testing or
			 other medical information, such as asking for clarification from the
			 consultant, to assist in reaching an agreement regarding the proposed
			 surgery.
(h) If the recommending
			 physician cannot reach an agreement with the insurer and continues to recommend
			 the proposed surgery, the physician must send either the signed and dated Form
			 3228 or other written notification to the insurer, the patient, and the
			 patient's representative. If the insurer believes the proposed surgery is
			 excessive, inappropriate, ineffectual, or in violation of these rules, the
			 insurer must request administrative review before the director within 21 days
			 of receiving the notification. If the insurer fails to timely request
			 administrative review the insurer is barred from challenging whether the
			 surgery is or was excessive, inappropriate, or ineffectual. The attending
			 physician and the worker may decide whether to proceed with surgery.
(i) A recommending physician who prescribes
			 or performs elective surgery and fails to give the insurer the seven day notice
			 requirement may be subject to civil penalties as provided in ORS
			 656.254 and OAR
			 436-010-0340. The insurer may
			 still be responsible to pay for the elective surgery.
(j) Surgery that must be performed before
			 seven days, because the condition is life threatening or there is rapidly
			 progressing deterioration or acute pain not manageable without surgical
			 intervention, is not considered elective surgery. In such cases, the attending
			 physician or authorized nurse practitioner should try to notify the insurer of
			 the need for emergency surgery.