BILL NUMBER: AB 2086 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 1, 2016
AMENDED IN SENATE MAY 16, 2016
AMENDED IN ASSEMBLY MARCH 30, 2016
INTRODUCED BY Assembly Members Cooley and Mathis
FEBRUARY 17, 2016
An act to amend Section 139.2 of the Labor Code, relating to
workers' compensation, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 2086, as amended, Cooley. Workers' compensation:
neuropsychologists.
Existing workers' compensation law generally requires employers to
secure the payment of workers' compensation, including medical
treatment, for injuries incurred by their employees that arise out
of, or in the course of, employment. Existing law requires the
Administrative Director of the Division of Workers' Compensation to
appoint qualified medical evaluators in each of the respective
specialties as required for the evaluation of medical-legal issues,
including medical doctors and osteopaths who meet specified
requirements, including, among others, that the evaluator is board
certified in a specialty by a board recognized by the administrative
director and the appropriate regulatory board, or the evaluator has
successfully completed a residency training program accredited by the
Accreditation Council for Graduate Medical Education. Existing law
also provides that the requirements for a psychologist to be
appointed as an evaluator include either being board certified in
clinical psychology by a board recognized by the administrative
director, holding a doctoral degree in psychology or a doctoral
degree sufficient for licensure, and having at least 5 years of
specified experience, or having at least 5 years of postdoctoral
experience and having previously served as a medical evaluator.
This bill would provide that a medical doctor or osteopath who has
successfully completed a residency or fellowship program accredited
by the American Osteopathic Association or by an
organization that is a predecessor to the Accreditation
Council for Graduate Medical Evaluation or the American
Osteopathic Association Education would satisfy
the residency training requirement. The bill would delete
the requirement that the specialty board be recognized by the
administrative director. The bill would authorize as a criterion for
those purposes board certification by a board approved by the
American Board of Medical Specialties, the American Osteopathic
Association Bureau of Osteopathic Specialists, a speciality board
with a program accredited by the Accreditation Council for Graduate
Medical Education, the American Osteopathic Association, or other
specialty boards, as specified, or approval by the appropriate
regulatory board for an evaluator who is a medical doctor or doctor
of osteopathic medicine. The bill would also authorize as a
criterion, for those purposes, having qualifications that the
administrative director and either the Medical Board of California or
the Osteopathic Medical Board of California both deem are equivalent
to board certification, as specified. The bill would
provide that a person who is certified in neuropsychology by
specified boards or organizations, or who is a clinical psychologist
licensed to practice in the state, holds a doctoral degree in
psychology, and has at least 2 years of specified experience and
training, and has served as an agreed medical evaluator in
neuropsychology on 5 or more occasions may be appointed by the
administrative director as a qualified medical evaluator in
neuropsychology.
The bill would state findings and declarations of the Legislature
relative to the need for neuropsychologists in the workers'
compensation system. The bill would make additional technical,
nonsubstantive changes.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Section 4 of Article XIV of the California Constitution grants
the Legislature plenary power to create a workers' compensation
system that includes adequate provision for the comfort, health and
safety, and general welfare of workers and their dependents to
relieve them of the consequences of any work-related injury or death,
irrespective of the fault of any party, and requires the
administration of the workers' compensation system to accomplish
substantial justice in all cases expeditiously, inexpensively, and
without encumbrance of any character, all of which matters are
expressly declared to be the social public policy of this state.
(b) Because current state law requires high school athletes
suffering traumatic brain injuries and concussions be evaluated by
specially trained health care professionals, California workers
suffering similar injuries also need to be treated and evaluated by
appropriate health care professionals such as neuropsychologists.
(c) For more than 23 years, the State of California recognized
neuropsychology as a separate and distinct specialty for qualified
medical evaluators in the workers' compensation system, permitting
injured workers to receive prompt and appropriate assessment of their
traumatic brain injuries.
(d) Even though the former Industrial Medical Council and the
current Division of Workers' Compensation have recognized various
health care specialties for more than two decades, health care
licensing boards such as the Medical Board of California, the
Osteopathic Medical Board of California, and the Board of Psychology
have never recognized separate specialties and subspecialties within
their respective licensing jurisdictions.
(e) Pursuant to the plenary power granted by the Constitution, the
Legislature hereby establishes the criteria for the Administrative
Director of the Division of Workers' Compensation to appoint
qualified medical evaluators in the specialty category of
neuropsychology.
SEC. 2. 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 osteopathic medicine, 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 osteopathic medicine and
meets one of the following requirements:
(A) Is board certified in a specialty by a board approved
by the American Board of Medical Specialties, the American
Osteopathic Association Bureau of Osteopathic Specialists, or a
specialty board with a postgraduate training program accredited by
the Accreditation Council for Graduate Medical Education, the
American Osteopathic Association, or a specialty board with
equivalent requirements approved by 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 or fellowship training
program accredited by the Accreditation Council for Graduate Medical
Education, the American Osteopathic Association, or a
predecessor organization. Education or a predecessor
organization, or 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.
(D) Is certified in clinical neuropsychology by the American Board
of Clinical Neuropsychology, the American Board of Professional
Neuropsychology, or another organization recognized by the
administrative director. A psychologist who meets the requirements of
this subparagraph may be appointed as a qualified medical evaluator
in neuropsychology.
(E) Is licensed to practice psychology in this state and has 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 an accredited university or
college training program, has completed an internship or its
equivalent in a clinically relevant area of professional psychology,
has at least two years of experience and specialized training, at
least one year of which is at the postdoctoral level, in the study
and practice of clinical neuropsychology and related neurosciences
under the supervision of a clinical neuropsychologist, and has served
as an agreed medical evaluator in neuropsychology on five or more
occasions. A psychologist who satisfies the requirements of this
subparagraph may be appointed as a qualified medical evaluator in
neuropsychology.
(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) (1) 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:
(A) Is in compliance with all applicable regulations and
evaluation guidelines adopted by the administrative director.
(B) 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.
(C) 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.
(D) 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.
(2) 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) (1) 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:
(A) Has violated any material statutory or administrative duty.
(B) Has failed to follow the medical procedures or qualifications
established pursuant to paragraph (2), (3), (4), or (5) of
subdivision (j).
(C) Has failed to comply with the timeframe standards established
pursuant to subdivision (j).
(D) Has failed to meet the requirements of subdivision (b) or (c).
(E) Has prepared medical-legal evaluations that fail to meet the
minimum standards for those reports established by the administrative
director or the appeals board.
(F) Has made material misrepresentations or false statements in an
application for appointment or reappointment as a qualified medical
evaluator.
(2) 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 where 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. 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. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
The Administrative Director of the Division of Workers'
Compensation recently abolished the recognition of neuropsychologists
as qualified medical evaluators in the workers' compensation system
based on the division's interpretation of Section 139.2 of the Labor
Code. In order to permit injured workers to continue to receive
medical-legal evaluation services from neuropsychologists in
appropriate cases and at the earliest possible time, it is necessary
for this act to take effect immediately.