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Peer Reviews - Recently addressed by the KY Court of Appeals

In Com. v. Barlow, 2013-CA-000552-MR, 2014 WL 2916902 (Ky. Ct. App. June 27, 2014), the Kentucky Court of Appeals recently addressed peer reviews.

KRS 312.015(4) provides:

"Peer review" means an evaluation, based upon generally accepted standards, by a peer review committee established in KRS 312.200 or by other persons performing peer review pursuant to KRS 312.200(3), of the appropriateness, quality, utilization, and cost of chiropractic health care and health service provided to a patient.

Next, KRS 312.200 (entitled "Peer review committee-Initiation of peer review-Report of findings-Licensure of other persons performing peer review of chiropractic claims") provides:

(1) The board shall appoint a peer review committee not to exceed five (5) doctors of chiropractic licensed under this chapter, none of whom are in direct business relationship with the provider, insurer, or patient whose case is being reviewed. Members of the peer review committee shall serve at the pleasure of the board.

(2) Peer review shall occur upon submission by a patient, the patient's representative, insurer, or chiropractor, in accordance with the procedures and fees approved by the board, of an inquiry about a treatment rendered to a patient by a chiropractor. The peer review committee shall examine each inquiry submitted to it and shall report its findings to the board and furnish copies of the findings to the patient, chiropractor, and third-party payor. The findings of the peer review committee on each inquiry reviewed may include a determination of whether or not the chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable.

(3) Other persons performing peer review of chiropractic claims shall be licensed by the board and complete annually a board approved utilization review course, in addition to the required annual education in KRS 312.175. Persons performing review services under this subsection shall annually register with the board and pay a registration fee not to exceed one hundred dollars ($100).

Com. v. Barlow, 2013-CA-000552-MR, 2014 WL 2916902, at *1 (Ky. Ct. App. June 27, 2014).

In Barlow, the Kentucky Board of Chiropractic Examiners sought injunctive relief against two physicians who had given opinions to an insurance company to assist in deciding whether the carrier should pay PIP benefits in regard to the necessity of chiropractic treatment. Id. The Board essentially argued that "[the above-referenced] statutory provisions lend it the exclusive authority to determine-in every given circumstance-who is qualified to evaluate whether or not a Kentucky chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable." Id. at *2. The Court disagreed and held:

[W]e are left to conclude that a "peer review" within the meaning of KRS 312.015(4) merely refers to an optional and nonbinding evaluation process that the Board provides as a service in exchange for a fee. In turn, the Board's procedures require that its nonbinding evaluation process only be performed by a "peer review committee" composed of chiropractors appointed by the Board per KRS 312.200(1), or, alternatively, by an individual chiropractor who has received additional training and has been licensed by the Board per KRS 312.200(3). We are unwilling to read anything more into what a "peer review" is, and we certainly do not understand it to also include or to have any effect upon some other kind of review conducted outside of this process.

Id. at *4. Based on this interpretation, the circuit court's decision dismissing the Board's suit was affirmed. Of note, the Court did not address whether it is good practice for an insurer to deny PIP based on the opinion of a doctor who may be unfamiliar with the treatment at issue, but rather the holding is limited-by giving an opinion to an insurer regarding chiropractic treatment, the doctor is not undertaking an illegal peer review.

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