OAR 436-010-0250: Temporary rule language in effect until 10/04/2026. Elective Surgery

(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 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 should try to notify the insurer of the need for emergency surgery.