Bill Text: CA AB1244 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Workers' compensation.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 852, Statutes of 2016. [AB1244 Detail]
Download: California-2015-AB1244-Amended.html
Bill Title: Workers' compensation.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 852, Statutes of 2016. [AB1244 Detail]
Download: California-2015-AB1244-Amended.html
BILL NUMBER: AB 1244 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2016
AMENDED IN SENATE AUGUST 1, 2016
AMENDED IN SENATE JUNE 22, 2016
AMENDED IN SENATE MAY 10, 2016
AMENDED IN ASSEMBLY JANUARY 26, 2016
AMENDED IN ASSEMBLY JANUARY 4, 2016
INTRODUCED BY Assembly Members Gray and Daly
FEBRUARY 27, 2015
An act to amend Sections 139.2, 4906, and 5402
139.2 and 4906 of, and to add Section 139.21 to, the Labor
Code, and to amend Section 14123 of the Welfare and Institutions
Code, relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1244, as amended, Gray. Workers' compensation: providers:
suspension: fees and expenses.
Under existing law, the Director of Health Care Services is
authorized, for purposes of administering the Medi-Cal program, to
suspend a provider of service from further participation under the
program for specified reasons, including conviction of any felony or
any misdemeanor involving fraud, abuse of the Medi-Cal program or any
patient, or otherwise substantially related to the qualifications,
functions, or duties of a provider of service. Existing law requires
the director, upon receipt of written notification from the Secretary
of the United States Department of Health and Human Services that a
physician or other individual practitioner has been suspended from
participation in the Medicare or Medicaid programs, to promptly
suspend the practitioner from participation in the Medi-Cal program.
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, that generally requires employers to secure
the payment of workers' compensation for injuries incurred by their
employees that arise out of, or in the course of, employment.
Existing law requires an employer to provide all medical services
reasonably required to cure or relieve the injured worker from the
effects of the injury.
Existing law authorizes an insurer, employer, or entity that
provides physician network services to establish or modify a medical
provider network for the provision of medical treatment to injured
employees and requires the administrative director to contract with
individual physicians or an independent medical review organization
to perform medical provider network independent medical reviews.
Existing law also requires the administrative director to appoint
qualified medical evaluators in each of the respective specialties as
required for the evaluation of medical-legal issues. Existing law
requires the administrative director to terminate from the list of
medical evaluators a physician who has been subject to disciplinary
action by the relevant licensing board or who has been convicted of a
misdemeanor or felony related to the conduct of his or her medical
practice.
This bill would require the administrative director to promptly
suspend any physician or practitioner from participating in the
workers' compensation system in any capacity when the individual or
entity meets specified criteria, including when that individual has
been convicted of any felony or misdemeanor involving fraud or abuse
of the Medi-Cal program, Medicare program, or workers' compensation
system, when that individual's license, certificate, or approval to
provide health care has been surrendered or revoked, or when that
individual or entity has been suspended, due to fraud or abuse, from
participation in the Medicare or Medicaid programs. The bill would
require the administrative director to adopt regulations for
suspending a physician's or practitioner's participation in the
workers' compensation system pursuant to these provisions, as
specified, and would require the administrative director to furnish
to the physician or practitioner written notice of the right to a
hearing regarding the suspension and the procedure to follow to
request that hearing. If a physician is a qualified medical examiner,
and the division finds that the physician meets the criteria for
suspension pursuant to these provisions, the bill would require the
administrative director to terminate the physician from the list of
medical evaluators. The bill would also require the administrative
director to promptly notify the appropriate state licensing,
certifying, or registering authority of a physician's or practitioner'
s suspension and to update the division's databases of qualified
medical evaluators and medical provider networks. The bill would
prohibit a provider of services from submitting or pursuing claims
for payment for services or supplies provided by a physician or
practitioner whose participation in the workers' compensation system
has been suspended, unless that claim for payment has been reduced to
final judgment or the services or supplies are unrelated to a
violation of the laws governing workers' compensation.
The bill would also require the Director of Health Care Services
to notify the administrative director of a suspension of a physician
from participation in the Medi-Cal program imposed pursuant to the
provisions described above authorizing the director to suspend a
provider of services from participation.
Existing law establishes the Workers' Compensation Appeals Board
to exercise all judicial powers vested in it, as specified, including
workers' compensation proceedings for the recovery of compensation,
or concerning any right or liability arising out of or incidental to
the recovery of compensation. Existing law vests the appeals board
with full power, authority, and jurisdiction to try and determine
finally those matters, subject only to the review by the courts, as
specified. Existing law authorizes the appeals board to determine,
and allow as liens against any sum to be paid as compensation, as
specified, a reasonable attorney's fee for legal services and the
reasonable expense incurred by or on behalf of the injured employee.
Existing law provides that a charge, claim, or agreement for those
legal services or disbursements, or that reasonable expense, is not
enforceable, valid, or binding in excess of a reasonable amount.
Existing law also requires an attorney to furnish to
the employee a written disclosure form describing the procedures
available to the injured employee or his or her dependents and
specified information regarding attorney's fees. Existing law
requires that a copy of the disclosure form be signed by the employee
and the attorney and sent to the employer, or insurer or 3rd-party
administrator, if either is known, by the attorney within 15 days of
the employee's and attorney's execution of the form. Existing law
also requires the employee, the insurer, the employer, and the
attorneys for each party to sign and file with the board a statement,
signed under penalty of perjury, attesting that the signatories have
not violated specified laws prohibiting conflicts of interest.
Existing law authorizes the appeals board, a workers' compensation
judge, or any party to the action or proceeding, as specified, to
cause the deposition of witnesses in any investigation or hearing
before the appeals board, and provides that the deponent is entitled
to receive specified benefits, such as reasonable expenses of
transportation, meals, and lodging, as specified.
This bill would prohibit payment for services or expenses incurred
under the provisions described above, as specified, prior to the
filing of the disclosure form with the appeals board and the sending
of that form to the employer, or to the insurer or 3rd-party
administrator, if either is known, by the attorney. The bill would
require the disclosure form described above to contain a paragraph
setting forth the exact location of the district office of the
appeals board at which the employee's case will be filed and to
include a specified statement. The bill would impose other
requirements regarding the signing and content of the form, including
that the form be signed under penalty of perjury by the attorney
representing the employee, and would require the form to be filed
with the appeals board.
The bill would also require an attorney who subsequently assumes
the representation of the employee in the same action or proceeding
to complete and sign under penalty of perjury a disclosure form that
meets the above-described requirements and the statement attesting
that the signatories have not violated specified laws prohibiting
conflicts of interest. The bill would require the attorney to file
the form and statement with the appeals board, and send them to the
employer, or insurer or 3rd-party administrator, if either is known,
within 15 days of the employee's and attorney's execution of the form
and statement.
By expanding the scope of the crime of perjury under these
provisions, this bill would impose a state-mandated local program.
Existing law requires an employer to authorize the provision of
all treatment, as specified, for an alleged injury within one working
day after an employee files a specified claim for workers'
compensation and to continue to provide the treatment until the date
that liability for the claim is accepted or rejected. Existing law
limits liability for medical treatment, until the date that liability
for the claim is accepted or rejected, to $10,000.
This bill would exclude from that liability limitation claims for
occupational disease or cumulative injury filed on or after January
1, 2017, except under specified circumstances, including when the
treatment is provided by a physician in a medical provider network
established by the employer or when the treatment is provided by the
employee's personal physician, as defined.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 139.2 of the Labor Code is amended to read:
139.2. (a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall be
for two-year terms.
(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs (1),
(2), (6), and (7), and, if the physician is a medical doctor, doctor
of osteopathy, doctor of chiropractic, or a psychologist, that he or
she also meets the applicable requirements in paragraph (3), (4), or
(5).
(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating competence
in evaluating medical-legal issues in the workers' compensation
system. Physicians shall not be required to pass an additional
examination as a condition of reappointment. A physician seeking
appointment as a qualified medical evaluator on or after January 1,
2001, shall also complete prior to appointment, a course on
disability evaluation report writing approved by the administrative
director. The administrative director shall specify the curriculum to
be covered by disability evaluation report writing courses, which
shall include, but is not limited to, 12 or more hours of
instruction.
(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.
(3) Is a medical doctor or doctor of osteopathy and meets one of
the following requirements:
(A) Is board certified in a specialty by a board recognized by the
administrative director and either the Medical Board of California
or the Osteopathic Medical Board of California.
(B) Has successfully completed a residency training program
accredited by the Accreditation Council for Graduate Medical
Education or the osteopathic equivalent.
(C) Was an active qualified medical evaluator on June 30, 2000.
(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board of
California, as appropriate, both deem to be equivalent to board
certification in a specialty.
(4) Is a doctor of chiropractic and has been certified in
California workers' compensation evaluation by a provider recognized
by the administrative director. The certification program shall
include instruction on disability evaluation report writing that
meets the standards set forth in paragraph (1).
(5) Is a psychologist and meets one of the following requirements:
(A) Is board certified in clinical psychology by a board
recognized by the administrative director.
(B) Holds a doctoral degree in psychology, or a doctoral degree
deemed equivalent for licensure by the Board of Psychology pursuant
to Section 2914 of the Business and Professions Code, from a
university or professional school recognized by the administrative
director and has not less than five years' postdoctoral experience in
the diagnosis and treatment of emotional and mental disorders.
(C) Has not less than five years' postdoctoral experience in the
diagnosis and treatment of emotional and mental disorders, and has
served as an agreed medical evaluator on eight or more occasions
prior to January 1, 1990.
(6) Does not have a conflict of interest as determined under the
regulations adopted by the administrative director pursuant to
subdivision (o).
(7) Meets any additional medical or professional standards adopted
pursuant to paragraph (6) of subdivision (j).
(c) The administrative director shall adopt standards for
appointment of physicians who are retired or who hold teaching
positions who are exceptionally well qualified to serve as a
qualified medical evaluator even though they do not otherwise qualify
under paragraph (2) of subdivision (b). A physician whose full-time
practice is limited to the forensic evaluation of disability shall
not be appointed as a qualified medical evaluator under this
subdivision.
(d) The qualified medical evaluator, upon request, shall be
reappointed if he or she meets the qualifications of subdivision (b)
and meets all of the following criteria:
(1) Is in compliance with all applicable regulations and
evaluation guidelines adopted by the administrative director.
(2) Has not had more than five of his or her evaluations that were
considered by a workers' compensation administrative law judge at a
contested hearing rejected by the workers' compensation
administrative law judge or the appeals board pursuant to this
section during the most recent two-year period during which the
physician served as a qualified medical evaluator. If the workers'
compensation administrative law judge or the appeals board rejects
the qualified medical evaluator's report on the basis that it fails
to meet the minimum standards for those reports established by the
administrative director or the appeals board, the workers'
compensation administrative law judge or the appeals board, as the
case may be, shall make a specific finding to that effect, and shall
give notice to the medical evaluator and to the administrative
director. Any rejection shall not be counted as one of the five
qualifying rejections until the specific finding has become final and
time for appeal has expired.
(3) Has completed within the previous 24 months at least 12 hours
of continuing education in impairment evaluation or workers'
compensation-related medical dispute evaluation approved by the
administrative director.
(4) Has not been terminated, suspended, placed on probation, or
otherwise disciplined by the administrative director during his or
her most recent term as a qualified medical evaluator.
If the evaluator does not meet any one of these criteria, the
administrative director may in his or her discretion reappoint or
deny reappointment according to regulations adopted by the
administrative director. A physician who does not currently meet the
requirements for initial appointment or who has been terminated under
subdivision (e) because his or her license has been revoked or
terminated by the licensing authority shall not be reappointed.
(e) The administrative director may, in his or her discretion,
suspend or terminate a qualified medical evaluator during his or her
term of appointment without a hearing as provided under subdivision
(k) or ( l ) whenever either of the following conditions
occurs:
(1) The evaluator's license to practice in California has been
suspended by the relevant licensing authority so as to preclude
practice, or has been revoked or terminated by the licensing
authority.
(2) The evaluator has failed to timely pay the fee required by the
administrative director pursuant to subdivision (n).
(f) The administrative director shall furnish a physician, upon
request, with a written statement of its reasons for termination of,
or for denying appointment or reappointment as, a qualified medical
evaluator. Upon receipt of a specific response to the statement of
reasons, the administrative director shall review his or her decision
not to appoint or reappoint the physician or to terminate the
physician and shall notify the physician of its final decision within
60 days after receipt of the physician's response.
(g) The administrative director shall establish agreements with
qualified medical evaluators to ensure the expeditious evaluation of
cases assigned to them for comprehensive medical evaluations.
(h) (1) When requested by an employee or employer pursuant to
Section 4062.1, the medical director appointed pursuant to Section
122 shall assign three-member panels of qualified medical evaluators
within five working days after receiving a request for a panel.
Preference in assigning panels shall be given to cases in which the
employee is not represented. If a panel is not assigned within 20
working days, the employee shall have the right to obtain a medical
evaluation from any qualified medical evaluator of his or her choice
within a reasonable geographic area. The medical director shall use a
random selection method for assigning panels of qualified medical
evaluators. The medical director shall select evaluators who are
specialists of the type requested by the employee. The medical
director shall advise the employee that he or she should consult with
his or her treating physician prior to deciding which type of
specialist to request.
(2) The administrative director shall promulgate a form that shall
notify the employee of the physicians selected for his or her panel
after a request has been made pursuant to Section 4062.1 or 4062.2.
The form shall include, for each physician on the panel, the
physician's name, address, telephone number, specialty, number of
years in practice, and a brief description of his or her education
and training, and shall advise the employee that he or she is
entitled to receive transportation expenses and temporary disability
for each day necessary for the examination. The form shall also state
in a clear and conspicuous location and type: "You have the right to
consult with an information and assistance officer at no cost to you
prior to selecting the doctor to prepare your evaluation, or you may
consult with an attorney. If your claim eventually goes to court,
the workers' compensation administrative law judge will consider the
evaluation prepared by the doctor you select to decide your claim."
(3) When compiling the list of evaluators from which to select
randomly, the medical director shall include all qualified medical
evaluators who meet all of the following criteria:
(A) He or she does not have a conflict of interest in the case, as
defined by regulations adopted pursuant to subdivision (o).
(B) He or she is certified by the administrative director to
evaluate in an appropriate specialty and at locations within the
general geographic area of the employee's residence. An evaluator
shall not conduct qualified medical evaluations at more than 10
locations.
(C) He or she has not been suspended or terminated as a qualified
medical evaluator for failure to pay the fee required by the
administrative director pursuant to subdivision (n) or for any other
reason.
(4) When the medical director determines that an employee has
requested an evaluation by a type of specialist that is appropriate
for the employee's injury, but there are not enough qualified medical
evaluators of that type within the general geographic area of the
employee's residence to establish a three-member panel, the medical
director shall include sufficient qualified medical evaluators from
other geographic areas and the employer shall pay all necessary
travel costs incurred in the event the employee selects an evaluator
from another geographic area.
(i) The medical director appointed pursuant to Section 122 shall
continuously review the quality of comprehensive medical evaluations
and reports prepared by agreed and qualified medical evaluators and
the timeliness with which evaluation reports are prepared and
submitted. The review shall include, but not be limited to, a review
of a random sample of reports submitted to the division, and a review
of all reports alleged to be inaccurate or incomplete by a party to
a case for which the evaluation was prepared. The medical director
shall submit to the administrative director an annual report
summarizing the results of the continuous review of medical
evaluations and reports prepared by agreed and qualified medical
evaluators and make recommendations for the improvement of the system
of medical evaluations and determinations.
(j) After public hearing pursuant to Section 5307.3, the
administrative director shall adopt regulations concerning the
following issues:
(1) (A) Standards governing the timeframes within which medical
evaluations shall be prepared and submitted by agreed and qualified
medical evaluators. Except as provided in this subdivision, the
timeframe for initial medical evaluations to be prepared and
submitted shall be no more than 30 days after the evaluator has seen
the employee or otherwise commenced the medical evaluation procedure.
The administrative director shall develop regulations governing the
provision of extensions of the 30-day period in both of the following
cases:
(i) When the evaluator has not received test results or consulting
physician's evaluations in time to meet the 30-day deadline.
(ii) To extend the 30-day period by not more than 15 days when the
failure to meet the 30-day deadline was for good cause.
(B) For purposes of subparagraph (A), "good cause" means any of
the following:
(i) Medical emergencies of the evaluator or evaluator's family.
(ii) Death in the evaluator's family.
(iii) Natural disasters or other community catastrophes that
interrupt the operation of the evaluator's business.
(C) The administrative director shall develop timeframes governing
availability of qualified medical evaluators for unrepresented
employees under Section 4062.1. These timeframes shall give the
employee the right to the addition of a new evaluator to his or her
panel, selected at random, for each evaluator not available to see
the employee within a specified period of time, but shall also permit
the employee to waive this right for a specified period of time
thereafter.
(2) Procedures to be followed by all physicians in evaluating the
existence and extent of permanent impairment and limitations
resulting from an injury in a manner consistent with Sections 4660
and 4660.1.
(3) Procedures governing the determination of any disputed medical
treatment issues in a manner consistent with Section 5307.27.
(4) Procedures to be used in determining the compensability of
psychiatric injury. The procedures shall be in accordance with
Section 3208.3 and shall require that the diagnosis of a mental
disorder be expressed using the terminology and criteria of the
American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders, Third Edition-Revised, or the terminology and
diagnostic criteria of other psychiatric diagnostic manuals generally
approved and accepted nationally by practitioners in the field of
psychiatric medicine.
(5) Guidelines for the range of time normally required to perform
the following:
(A) A medical-legal evaluation that has not been defined and
valued pursuant to Section 5307.6. The guidelines shall establish
minimum times for patient contact in the conduct of the evaluations,
and shall be consistent with regulations adopted pursuant to Section
5307.6.
(B) Any treatment procedures that have not been defined and valued
pursuant to Section 5307.1.
(C) Any other evaluation procedure requested by the Insurance
Commissioner, or deemed appropriate by the administrative director.
(6) Any additional medical or professional standards that a
medical evaluator shall meet as a condition of appointment,
reappointment, or maintenance in the status of a medical evaluator.
(k) Except as provided in this subdivision, the administrative
director may, in his or her discretion, suspend or terminate the
privilege of a physician to serve as a qualified medical evaluator if
the administrative director, after hearing pursuant to subdivision (
l ), determines, based on substantial evidence, that a
qualified medical evaluator:
(1) Has violated any material statutory or administrative duty.
(2) Has failed to follow the medical procedures or qualifications
established pursuant to paragraph (2), (3), (4), or (5) of
subdivision (j).
(3) Has failed to comply with the timeframe standards established
pursuant to subdivision (j).
(4) Has failed to meet the requirements of subdivision (b) or (c).
(5) Has prepared medical-legal evaluations that fail to meet the
minimum standards for those reports established by the administrative
director or the appeals board.
(6) Has made material misrepresentations or false statements in an
application for appointment or reappointment as a qualified medical
evaluator.
A hearing shall not be required prior to the suspension or
termination of a physician's privilege to serve as a qualified
medical evaluator when the physician has done either of the
following:
(A) Failed to timely pay the fee required pursuant to subdivision
(n).
(B) Had his or her license to practice in California suspended by
the relevant licensing authority so as to preclude practice, or had
the license revoked or terminated by the licensing authority.
( l ) The administrative director shall cite the
qualified medical evaluator for a violation listed in subdivision (k)
and shall set a hearing on the alleged violation within 30 days of
service of the citation on the qualified medical evaluator. In
addition to the authority to terminate or suspend the qualified
medical evaluator upon finding a violation listed in subdivision (k),
the administrative director may, in his or her discretion, place a
qualified medical evaluator on probation subject to appropriate
conditions, including ordering continuing education or training. The
administrative director shall report to the appropriate licensing
board the name of any qualified medical evaluator who is disciplined
pursuant to this subdivision.
(m) The administrative director shall terminate from the list of
medical evaluators any physician whose licensure has been terminated
by the relevant licensing board, or who has been convicted of a
misdemeanor or felony related to the conduct of his or her medical
practice, or of a crime of moral turpitude. The administrative
director shall suspend or terminate as a medical evaluator any
physician who has been suspended or placed on probation by the
relevant licensing board. The administrative director shall terminate
as a medical evaluator any physician who is a person described in
paragraph (3) of subdivision (b) of Section 139.21. If a physician is
suspended or terminated as a qualified medical evaluator under this
subdivision, a report prepared by the physician that is not complete,
signed, and furnished to one or more of the parties prior to the
date of conviction or action of the licensing board, whichever is
earlier, shall not be admissible in any proceeding before the appeals
board nor shall there be any liability for payment for the report
and any expense incurred by the physician in connection with the
report.
(n) A qualified medical evaluator shall pay a fee, as determined
by the administrative director, for appointment or reappointment.
These fees shall be based on a sliding scale as established by the
administrative director. All revenues from fees paid under this
subdivision shall be deposited into the Workers' Compensation
Administration Revolving Fund and are available for expenditure upon
appropriation by the Legislature, and shall not be used by any other
department or agency or for any purpose other than administration of
the programs of the Division of Workers' Compensation related to the
provision of medical treatment to injured employees.
(o) An evaluator shall not request or accept any compensation or
other thing of value from any source that does or could create a
conflict with his or her duties as an evaluator under this code. The
administrative director, after consultation with the Commission on
Health and Safety and Workers' Compensation, shall adopt regulations
to implement this subdivision.
SEC. 2. Section 139.21 is added to the Labor Code, immediately
following Section 139.2, to read:
139.21. (a) (1) The administrative director shall promptly
suspend any physician or practitioner from participating in the
workers' compensation system in any capacity when the individual or
entity meets any of the following criteria:
(A) The individual has been convicted of any felony or misdemeanor
involving fraud or abuse of the Medi-Cal program, Medicare program,
or workers' compensation system, or fraud or abuse of any patient, or
otherwise substantially related to the qualifications, functions, or
duties of a provider of services.
(B) The individual or entity has been suspended, due to fraud or
abuse, from the federal Medicare or Medicaid programs.
(C) The individual's license, certificate, or approval to provide
health care has been surrendered or revoked.
(2) The administrative director shall exercise due diligence to
identify physicians and practitioners who have been suspended as
described in subdivision (a) by accessing the quarterly updates to
the list of suspended and ineligible providers maintained by the
State Department of Health Care Services for the Medi-Cal program at
https://files.medi-cal.ca.gov/pubsdoco/SandILanding.asp.
(b) (1) The administrative director shall adopt regulations for
suspending a physician's or practitioner's participation in the
workers' compensation system, subject to the notice and hearing
requirements in paragraph (2).
(2) The administrative director shall furnish to the physician or
practitioner written notice of the right to a hearing regarding the
suspension and the procedure to follow to request a hearing. The
notice shall state that the division is required to suspend the
physician or practitioner pursuant to subdivision (a) after 30 days
from the date the notice is mailed unless the physician or
practitioner requests a hearing and, in that hearing, the physician
or practitioner provides proof that paragraph (1) of subdivision (a)
is not applicable. The physician or practitioner may request a
hearing within 10 days from the date the notice is sent by the
administrative director. The request for the hearing shall stay the
suspension. The hearing shall be held within 30 days of the receipt
of the request. Upon the completion of the hearing, if the division
finds that paragraph (1) of subdivision (a) is applicable, the
administrative director shall immediately suspend the physician or
practitioner.
(3) If a physician is a qualified medical examiner, and the
division finds, in accordance with the notice and hearing
requirements of this section, that paragraph (1) of subdivision (a)
is applicable to that physician, the physician shall be terminated
from the list of medical evaluators pursuant to subdivision (m) of
Section 139.2.
(c) The administrative director shall promptly notify the
physician's or practitioner's state licensing, certifying, or
registering authority of a suspension imposed pursuant to this
section and shall update the division's qualified medical evaluator
and medical provider network databases, as appropriate.
(d) A provider of services, whether an individual, clinic, group,
corporation, or other association, may not submit a claim for payment
to, or pursue a claim for payment from, a payor for any services or
supplies provided by a physician or practitioner whose participation
in the workers' compensation system has been suspended pursuant to
this section, unless that claim for payment has been reduced to final
judgment or the services or supplies are unrelated to a violation of
the laws governing workers' compensation.
SEC. 3. Section 4906 of the Labor Code is amended to read:
4906. (a) A charge, claim, or agreement for the legal services or
disbursements mentioned in subdivision (a) of Section 4903, or for
the expense mentioned in subdivision (b) of Section 4903, is not
enforceable, valid, or binding in excess of a reasonable amount. The
appeals board may determine what constitutes a reasonable amount, but
payment pursuant to subdivision (a) or (b) of Section 4903 or
Section 5710 shall not be allowed for any services or expenses
incurred prior to the filing of the disclosure form described in
subdivision (e) with the appeals board and the sending of that form
to the employer, or to the insurer or third-party administrator, if
either is known, by the attorney.
(b) An attorney or agent shall not demand or accept any fee from
an employee or dependent of an employee for the purpose of
representing the employee or dependent of an employee in any
proceeding of the division, appeals board, or any appellate procedure
related thereto until the amount of the fee has been approved or set
by the appeals board.
(c) Any fee agreement shall be submitted to the appeals board for
approval within 10 days after the agreement is made.
(d) In establishing a reasonable attorney's fee, consideration
shall be given to the responsibility assumed by the attorney, the
care exercised in representing the applicant, the time involved, and
the results obtained.
(e) At the initial consultation, an attorney shall furnish the
employee a written disclosure form promulgated by the administrative
director which shall clearly and prominently describe the procedures
available to the injured employee or his or her dependents. The
disclosure form shall describe this section, the range of attorney's
fees customarily approved by the appeals board, and the attorney's
fees provisions of Section 4064 and the extent to which an employee
may receive compensation without incurring attorney's fees. The
disclosure form shall include the telephone number of the
administrative director together with the statement that the employee
may receive answers at that number to questions concerning
entitlement to compensation or the procedures to follow to receive
compensation. A copy of the disclosure form shall be signed by the
employee and the attorney and filed with the appeals board and sent
to the employer, or insurer or third-party administrator, if either
is known, by the attorney within 15 days of the employee's and
attorney's execution thereof.
(f) The disclosure form set forth in subdivision (e) shall
contain, prominently stated, the following statement:
"Any person who makes or causes to be made any knowingly false or
fraudulent material statement or representation for the purpose of
obtaining or denying worker's workers
' compensation benefits or payments is guilty of a felony."
(g) (1) The disclosure form described in subdivision (e) shall
also contain a paragraph setting forth the exact location of the
district office of the appeals board at which the employee's case
will be filed. This paragraph shall also contain, prominently
displayed, the following statement:
"The employee has been advised of the district office at which his
or her case will be filed and that he or she may be required to
attend conferences
or hearings at this location at his or her own expense."
(2) The disclosure form may not be signed by the employee until he
or she has been advised of the location at which his or her case
will be filed, has met with or personally spoken with an attorney
licensed by the State Bar of California who is regularly employed by
the firm by which the employee will be represented, and has been
advised of his or her rights as set forth in subdivision (e) and the
provisions of paragraph (1). The name of this individual shall be
clearly and legibly set forth on the disclosure form.
(3) The disclosure form shall include the actual date the
disclosure form was signed by both the employee and the attorney and
shall be signed under penalty of perjury by the attorney representing
the employee, or an attorney licensed by the State Bar of California
who is regularly employed by his or her firm. A copy of the
disclosure form containing all of the required information shall be
given to the employee when he or she signs the disclosure form.
(h) In addition to the disclosure form, the employee, the insurer,
the employer, and the attorneys for each party shall sign under
penalty of perjury and file with the board a statement, with the
application or answer, and in addition to the disclosure required
pursuant to subdivision (g), that they have not violated Section
139.3 and that they have not offered, delivered, received, or
accepted any rebate, refund, commission, preference, patronage
dividend, discount, or other consideration, whether in the form of
money or otherwise, as compensation or inducement for any referred
examination or evaluation.
(i) An attorney who subsequently assumes the representation of the
employee in the same action or proceeding shall complete a
disclosure form that meets all of the requirements of this section
and the statement required by subdivision (h). Both the form and the
statement shall be signed under penalty of perjury by the attorney or
an attorney licensed by the State Bar of California who is regularly
employed by his or her firm. Both the disclosure form and the
statement shall be filed with the appeals board and sent to the
employer, or insurer or third-party administrator, if either is
known, by the attorney within 15 days of the employee's and attorney'
s execution of the form and statement. Payment pursuant to
subdivision (a) or (b) of Section 4903 or Section 5710 shall not be
allowed for any services or expenses incurred prior to the filing of
the disclosure form described in subdivision (e) with the appeals
board and the sending of that form to the employer, or to the insurer
or third-party administrator, if either is known, by the attorney.
SEC. 4. Section 5402 of the Labor Code is
amended to read:
5402. (a) Knowledge of an injury, obtained from any source, on
the part of an employer, his or her managing agent, superintendent,
foreman, or other person in authority, or knowledge of the assertion
of a claim of injury sufficient to afford opportunity to the employer
to make an investigation into the facts, is equivalent to service
under Section 5400.
(b) If liability is not rejected within 90 days after the date the
claim form is filed under Section 5401, the injury shall be presumed
compensable under this division. The presumption of this subdivision
is rebuttable only by evidence discovered subsequent to the 90-day
period.
(c) Within one working day after an employee files a claim form
under Section 5401, the employer shall authorize the provision of all
treatment, consistent with Section 5307.27, for the alleged injury
and shall continue to provide the treatment until the date that
liability for the claim is accepted or rejected. Until the date the
claim is accepted or rejected, liability for medical treatment shall
be limited to ten thousand dollars ($10,000).
(d) The liability for payment for medical treatment set forth in
subdivision (c) shall not apply to claims for occupational disease or
cumulative injury filed on or after January 1, 2017, unless one of
the following applies:
(1) A multiemployer Taft-Hartley trust fund, as described in
paragraph (5) of subdivision (c) of Section 186 of Title 29 of the
United States Code, would be liable for payment for the treatment if
the employer was not liable for payment for the treatment.
(2) The treatment is provided by the employee's personal physician
as defined in subdivision (d) of Section 4600.
(3) The treatment is provided by a physician in a medical provider
network established by the employer pursuant to Section 4616.
(e) Treatment provided under subdivision (c) shall not give rise
to a presumption of liability on the part of the employer.
SEC. 5. SEC. 4. Section 14123 of the
Welfare and Institutions Code is amended to read:
14123. Participation in the Medi-Cal program by a provider of
service is subject to suspension in order to protect the health of
the recipients and the funds appropriated to carry out this chapter.
(a) (1) The director may suspend a provider of service from
further participation under the Medi-Cal program for violation of any
provision of this chapter or Chapter 8 (commencing with Section
14200) or any rule or regulation promulgated by the director pursuant
to those chapters. The suspension may be for an indefinite or
specified period of time and with or without conditions, or may be
imposed with the operation of the suspension stayed or probation
granted. The director shall suspend a provider of service for
conviction of any felony or any misdemeanor involving fraud, abuse of
the Medi-Cal program or any patient, or otherwise substantially
related to the qualifications, functions, or duties of a provider of
service.
(2) If the provider of service is a clinic, group, corporation, or
other association, conviction of any officer, director, or
shareholder with a 10 percent or greater interest in that
organization, of a crime described in paragraph (1) shall result in
the suspension of that organization and the individual convicted if
the director believes that suspension would be in the best interest
of the Medi-Cal program. If the provider of service is a political
subdivision of the state or other government agency, the conviction
of the person in charge of the facility of a crime described in
paragraph (1) may result in the suspension of that facility. The
record of conviction or a certified copy thereof, certified by the
clerk of the court or by the judge in whose court the conviction is
had, shall be conclusive evidence of the fact that the conviction
occurred. A plea or verdict of guilty, or a conviction following a
plea of nolo contendere is deemed to be a conviction within the
meaning of this section.
(3) After conviction, but before the time for appeal has elapsed
or the judgment of conviction has been affirmed on appeal, the
director, if he or she believes that suspension would be in the best
interests of the Medi-Cal program, may order the suspension of a
provider of service. When the time for appeal has elapsed, or the
judgment of conviction has been affirmed on appeal or when an order
granting probation is made suspending the imposition of sentence
irrespective of any subsequent order under Section 1203.4 of the
Penal Code allowing a person to withdraw his or her plea of guilty
and to enter a plea of not guilty, or setting aside the verdict of
guilty, or dismissing the accusation, information, or indictment, the
director shall order the suspension of a provider of service. The
suspension shall not take effect earlier than the date of the
director's order. Suspension following a conviction is not subject to
the proceedings required in subdivision (c). However, the director
may grant an informal hearing at the request of the provider of
service to determine in the director's sole discretion if the
circumstances surrounding the conviction justify rescinding or
otherwise modifying the suspension provided for in this subdivision.
(4) If the provider of service appeals the conviction and the
conviction is reversed, the provider may apply for reinstatement to
the Medi-Cal program after the conviction is reversed.
Notwithstanding Section 14124.6, the application for reinstatement
shall not be subject to the one-year waiting period for the filing of
a reinstatement petition pursuant to Section 11522 of the Government
Code.
(b) Whenever the director receives written notification from the
Secretary of the United States Department of Health and Human
Services that a physician or other individual practitioner has been
suspended from participation in the Medicare or Medicaid programs,
the director shall promptly suspend the practitioner from
participation in the Medi-Cal program and notify the Administrative
Director of the Division of Workers' Compensation of the suspension,
in accordance with paragraph (2) of subdivision (e). This automatic
suspension is not subject to the proceedings required in subdivision
(c). No payment from state or federal funds may be made for any item
or service rendered by the practitioner during the period of
suspension.
(c) The proceedings for suspension shall be conducted pursuant to
Section 100171 of the Health and Safety Code. The director may
temporarily suspend any provider of service prior to any hearing when
in his or her opinion that action is necessary to protect the public
welfare or the interests of the Medi-Cal program. The director shall
notify the provider of service of the temporary suspension and the
effective date thereof and at the same time serve the provider with
an accusation. The accusation and all proceedings thereafter shall be
in accordance with Section 100171 of the Health and Safety Code.
Upon receipt of a notice of defense by the provider, the director
shall set the matter for hearing within 30 days after receipt of the
notice. The temporary suspension shall remain in effect until such
time as the hearing is completed and the director has made a final
determination on the merits. The temporary suspension shall, however,
be deemed vacated if the director fails to make a final
determination on the merits within 60 days after the original hearing
has been completed. This subdivision does not apply where the
suspension of a provider is based upon the conviction of any crime
involving fraud, abuse of the Medi-Cal program, or suspension from
the federal Medicare program. In those instances, suspension shall be
automatic.
(d) (1) The suspension by the director of any provider of service
shall preclude the provider from submitting claims for payment,
either personally or through claims submitted by any clinic, group,
corporation, or other association to the Medi-Cal program for any
services or supplies the provider has provided under the program,
except for services or supplies provided prior to the suspension. No
clinic, group, corporation, or other association which is a provider
of service shall submit claims for payment to the Medi-Cal program
for any services or supplies provided by a person within the
organization who has been suspended or revoked by the director,
except for services or supplies provided prior to the suspension.
(2) If the provisions of this chapter, Chapter 8 (commencing with
Section 14200), or the regulations promulgated by the director are
violated by a provider of service that is a clinic, group,
corporation, or other association, the director may suspend the
organization and any individual person within the organization who is
responsible for the violation.
(e) (1) Notice of the suspension shall be sent by the director to
the provider's state licensing, certifying, or registering authority,
along with the evidence upon which the suspension was based.
(2) At the same time notice is provided pursuant to paragraph (1),
the director shall provide written notification of the suspension to
the Administrative Director of the Division of Workers'
Compensation, for purposes of Section 139.21 of the Labor Code.
(f) In addition to the bases for suspension contained in
subdivisions (a) and (b), the director may suspend a provider of
service from further participation under the Medi-Cal dental program
for the provision of services that are below or less than the
standard of acceptable quality, as established by the California
Dental Association Guidelines for the Assessment of Clinical Quality
and Professional Performance, Copyright 1995, Third Edition, as
periodically amended. The suspension shall be subject to the
requirements contained in subdivisions (a) to (e), inclusive.
SEC. 6. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.
