Bill Text: CA SB626 | 2013-2014 | Regular Session | Amended
Bill Title: Workers' compensation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-02-03 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB626 Detail]
Download: California-2013-SB626-Amended.html
BILL NUMBER: SB 626 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 18, 2013
INTRODUCED BY Senator Beall
FEBRUARY 22, 2013
An act to amend Sections 75, 4600, 4604.5,
4610, 4610.6, 4616, and 4660.1 of the Labor Code, relating to workers'
compensation.
LEGISLATIVE COUNSEL'S DIGEST
SB 626, as amended, Beall. Workers' compensation.
Existing law establishes a worker's compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment. Existing law
creates the Commission on Health and Safety and Workers' Compensation
consisting of 8 voting members, that includes 4 voting members
representing organized labor and 4 voting members representing
employers.
This bill would increase the number of commission voting members
to 10 by adding one voting member representing injured workers and
one additional voting member representing employers, appointed by the
Governor.
Existing law establishes a worker's compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment. Existing
law generally provides for the reimbursement of medical providers for
services rendered in connection with the treatment of a worker's
injury. Existing law authorizes, with some exceptions, the employee
to be treated by a physician of his or her own choice or at a
facility of his or her own choice after 30 days from the date the
injury is reported. Existing law prohibits a chiropractor from being
the treating physician after the employee has received the maximum
number of chiropractic visits.
This bill would delete that provision and would instead
provide that a physician, as defined, may remain the patient's
primary treating physician even if additional treatment has been
denied as long as the physician complies with specified reporting
requirements prohibition .
Existing law requires that the recommended guidelines set forth in
the medical treatment utilization schedule adopted by the
administrative director be presumptively correct on the issue of
extent and scope of medical treatment. Notwithstanding the medical
treatment utilization schedule, for injuries occurring on and after
January 1, 2004, an employee is entitled to no more than 24
chiropractic, 24 occupational therapy, and 24 physical therapy visits
per industrial injury.
This bill would delete the limitation on chiropractic,
occupational therapy, and physical therapy visits per industrial
injury.
Existing law requires an employer to establish a medical treatment
utilization review process and, in this regard, prohibits any person
other than a licensed physician from modifying, delaying, or denying
requests for authorization of medical treatment for reasons of
medical necessity to cure and relieve. Existing law also provides for
an independent medical review process to resolve disputes over a
utilization review decision for injuries occurring on or after
January 1, 2013, and for any decision that is communicated to the
requesting physician on or after July 1, 2013, regardless of the date
of injury.
This bill would revise these provisions to require that medical
treatment utilization reviews and independent medical reviews be
conducted by physicians or medical professionals, as applicable, who
hold the same California license as the requesting physician. The
bill would delete the requirement that an independent
medical review organization keep the names of the reviewers
confidential in all communications with entities or individuals
outside the independent medical review organization.
Existing law prohibits a workers' compensation administrative law
judge, the appeals board, or any higher court from making a
determination of medical necessity contrary to the determination of
the independent medical review organization.
This bill would delete that provision.
Existing law provides certain methods for determining workers'
compensation benefits payable to a worker or his or her dependents
for purposes of permanent partial disability and permanent total
disability for injuries occurring on or after January 1, 2013.
Existing law requires that the nature of the physical injury or
disfigurement, the occupation of the injured employee, and his or her
age at the time of injury be taken into account in determining the
percentages of permanent partial disability or permanent total
disability. Existing law, with some exceptions, prohibits increases
in impairment ratings for sleep dysfunction, sexual dysfunction, or
psychiatric disorder, or any combination thereof, as specified.
This bill would delete the prohibition on increases in impairment
ratings for psychiatric disorder and would make related changes.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 75 of the Labor Code
is amended to read:
75. (a) There is in the department the Commission on Health and
Safety and Workers' Compensation. The commission shall be composed of
eight 10 voting members. Four voting
members shall represent organized labor, one voting member shall
represent injured workers, and four
five voting members shall represent employers. Not more than
one employer member shall represent public agencies. Two
Three of the employer and
members, two of the labor members , and the member
representing injured workers shall be appointed by the
Governor. The Senate Committee on Rules and the Speaker of the
Assembly shall each appoint one employer and one labor
representative. The public employer representative shall be appointed
by the Governor. No action of the commission shall be valid unless
agreed to by a majority of the membership and by not less than two
members representing organized labor and two members representing
employers.
(b) The commission shall select one of the members representing
organized labor to chair the commission during the 1994 calendar
year, and thereafter the commission shall alternatively select an
employer and organized labor representative to chair the commission
for one-year terms.
(c) The initial terms of the members of the commission shall be
four years, and they shall hold office until the appointment of a
successor. However, the initial terms of one employer and one labor
member appointed by the Governor shall expire on December 31, 1995;
the initial terms of the members appointed by the Senate Committee on
Rules shall expire December 31, 1996; the initial terms of the
members appointed by the Speaker of the Assembly shall expire on
December 31, 1997; and the initial term of one employer and one labor
member appointed by the Governor shall expire on December 31, 1998.
Any vacancy shall be filled by appointment to the unexpired term.
(d) The commission shall meet every other month and upon the call
of the chair. Meetings shall be open to the public. Members of the
commission shall receive one hundred dollars ($100) for each day of
their actual attendance at meetings of the commission and other
official business of the commission and shall also receive their
actual and necessary traveling expenses incurred in the performance
of their duty as a member. Payment of per diem and traveling expenses
shall be made from the Workers' Compensation Administration
Revolving Fund, when appropriated by the Legislature.
SECTION 1. SEC. 2. Section 4600 of
the Labor Code is amended to read:
4600. (a) Medical, surgical, chiropractic, acupuncture, and
hospital treatment, including nursing, medicines, medical and
surgical supplies, crutches, and apparatuses, including orthotic and
prosthetic devices and services, that is reasonably required to cure
or relieve the injured worker from the effects of his or her injury
shall be provided by the employer. In the case of his or her neglect
or refusal reasonably to do so, the employer is liable for the
reasonable expense incurred by or on behalf of the employee in
providing treatment.
(b) As used in this division and notwithstanding any other
provision of law, medical treatment that is reasonably required to
cure or relieve the injured worker from the effects of his or her
injury means treatment that is based upon the guidelines adopted by
the administrative director pursuant to Section 5307.27.
(c) Unless the employer or the employer's insurer has established
or contracted with a medical provider network as provided for in
Section 4616, after 30 days from the date the injury is reported, the
employee may be treated by a physician of his or her own choice or
at a facility of his or her own choice within a reasonable geographic
area. A physician, as defined in Section 3209.3, may remain
the employee's primary treating physician even if additional medical
treatment, as specified in the medical treatment utilization
schedule adopted under Section 5307.27, has been denied, as long as
the physician complies with the reporting requirements set forth by
the administrative director.
(d) (1) If an employee has notified his or her employer in writing
prior to the date of injury that he or she has a personal physician,
the employee shall have the right to be treated by that physician
from the date of injury if the employee has health care coverage for
nonoccupational injuries or illnesses on the date of injury in a
plan, policy, or fund as described in subdivisions (b), (c), and (d)
of Section 4616.7.
(2) For purposes of paragraph (1), a personal physician shall meet
all of the following conditions:
(A) Be the employee's regular physician and surgeon, licensed
pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of
the Business and Professions Code.
(B) Be the employee's primary care physician and has previously
directed the medical treatment of the employee, and who retains the
employee's medical records, including his or her medical history.
"Personal physician" includes a medical group, if the medical group
is a single corporation or partnership composed of licensed doctors
of medicine or osteopathy, which operates an integrated
multispecialty medical group providing comprehensive medical services
predominantly for nonoccupational illnesses and injuries.
(C) The physician agrees to be predesignated.
(3) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a health care service
plan licensed pursuant to Chapter 2.2 (commencing with Section 1340)
of Division 2 of the Health and Safety Code, and the employer is
notified pursuant to paragraph (1), all medical treatment,
utilization review of medical treatment, access to medical treatment,
and other medical treatment issues shall be governed by Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code. Disputes regarding the provision of medical treatment shall be
resolved pursuant to Article 5.55 (commencing with Section 1374.30)
of Chapter 2.2 of Division 2 of the Health and Safety Code.
(4) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a group health
insurance policy as described in Section 4616.7, all medical
treatment, utilization review of medical treatment, access to medical
treatment, and other medical treatment issues shall be governed by
the applicable provisions of the Insurance Code.
(5) The insurer may require prior authorization of any
nonemergency treatment or diagnostic service and may conduct
reasonably necessary utilization review pursuant to Section 4610.
(6) An employee shall be entitled to all medically appropriate
referrals by the personal physician to other physicians or medical
providers within the nonoccupational health care plan. An employee
shall be entitled to treatment by physicians or other medical
providers outside of the nonoccupational health care plan pursuant to
standards established in Article 5 (commencing with Section 1367) of
Chapter 2.2 of Division 2 of the Health and Safety Code.
(e) (1) When at the request of the employer, the employer's
insurer, the administrative director, the appeals board, or a workers'
compensation administrative law judge, the employee submits to
examination by a physician, he or she shall be entitled to receive,
in addition to all other benefits herein provided, all reasonable
expenses of transportation, meals, and lodging incident to reporting
for the examination, together with one day of temporary disability
indemnity for each day of wages lost in submitting to the
examination.
(2) Regardless of the date of injury, "reasonable expenses of
transportation" includes mileage fees from the employee's home to the
place of the examination and back at the rate of twenty-one cents
($0.21) a mile or the mileage rate adopted by the Director of Human
Resources pursuant to Section 19820 of the Government Code, whichever
is higher, plus any bridge tolls. The mileage and tolls shall be
paid to the employee at the time he or she is given notification of
the time and place of the examination.
(f) When at the request of the employer, the employer's insurer,
the administrative director, the appeals board, or a workers'
compensation administrative law judge, an employee submits to
examination by a physician and the employee does not proficiently
speak or understand the English language, he or she shall be entitled
to the services of a qualified interpreter in accordance with
conditions and a fee schedule prescribed by the administrative
director. These services shall be provided by the employer. For
purposes of this section, "qualified interpreter" means a language
interpreter certified, or deemed certified, pursuant to Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of, or Section 68566 of, the Government Code.
(g) If the injured employee cannot effectively communicate with
his or her treating physician because he or she cannot proficiently
speak or understand the English language, the injured employee is
entitled to the services of a qualified interpreter during medical
treatment appointments. To be a qualified interpreter for purposes of
medical treatment appointments, an interpreter is not required to
meet the requirements of subdivision (f), but shall meet any
requirements established by rule by the administrative director that
are substantially similar to the requirements set forth in Section
1367.04 of the Health and Safety Code. The administrative director
shall adopt a fee schedule for qualified interpreter fees in
accordance with this section. Upon request of the injured employee,
the employer or insurance carrier shall pay for interpreter services.
An employer shall not be required to pay for the services of an
interpreter who is not certified or is provisionally certified by the
person conducting the medical treatment or examination unless either
the employer consents in advance to the selection of the individual
who provides the interpreting service or the injured worker requires
interpreting service in a language other than the languages
designated pursuant to Section 11435.40 of the Government Code.
(h) Home health care services shall be provided as medical
treatment only if reasonably required to cure or relieve the injured
employee from the effects of his or her injury and prescribed by a
physician and surgeon licensed pursuant to Chapter 5 (commencing with
Section 2000) of Division 2 of the Business and Professions Code,
and subject to Section 5307.1 or 5703.8. The employer shall not be
liable for home health care services that are provided more than 14
days prior to the date of the employer's receipt of the physician's
prescription.
SEC. 3. Section 4604.5 of the Labor
Code is amended to read:
4604.5. (a) The recommended guidelines set forth in the medical
treatment utilization schedule adopted by the administrative director
pursuant to Section 5307.27 shall be presumptively correct on the
issue of extent and scope of medical treatment. The presumption is
rebuttable and may be controverted by a preponderance of the
scientific medical evidence establishing that a variance from the
guidelines reasonably is required to cure or relieve the injured
worker from the effects of his or her injury. The presumption created
is one affecting the burden of proof.
(b) The recommended guidelines set forth in the schedule adopted
pursuant to subdivision (a) shall reflect practices that are evidence
and scientifically based, nationally recognized, and peer reviewed.
The guidelines shall be designed to assist providers by offering an
analytical framework for the evaluation and treatment of injured
workers, and shall constitute care in accordance with Section 4600
for all injured workers diagnosed with industrial conditions.
(c) (1) Notwithstanding the medical treatment utilization
schedule, for injuries occurring on and after January 1, 2004, an
employee shall be entitled to no more than 24 chiropractic, 24
occupational therapy, and 24 physical therapy visits per industrial
injury.
(2) (A) Paragraph (1) shall not apply when an employer authorizes,
in writing, additional visits to a health care practitioner for
physical medicine services. Payment or authorization for treatment
beyond the limits set forth in paragraph (1) shall not be deemed a
waiver of the limits set forth by paragraph (1) with respect to
future requests for authorization.
(B) The Legislature finds and declares that the amendments made to
subparagraph (A) by the act adding this subparagraph are declaratory
of existing law.
(3) Paragraph (1) shall not apply to visits for postsurgical
physical medicine and postsurgical rehabilitation services provided
in compliance with a postsurgical treatment utilization schedule
established by the administrative director pursuant to Section
5307.27.
(d)
(c) For all injuries not covered by the official
utilization schedule adopted pursuant to Section 5307.27, authorized
treatment shall be in accordance with other evidence-based medical
treatment guidelines that are recognized generally by the national
medical community and scientifically based.
SEC. 2. SEC. 4. Section 4610 of the
Labor Code is amended to read:
4610. (a) For purposes of this section, "utilization review"
means utilization review or utilization management functions that
prospectively, retrospectively, or concurrently review and approve,
modify, delay, or deny, based in whole or in part on medical
necessity to cure and relieve, treatment recommendations by
physicians, as defined in Section 3209.3, prior to, retrospectively,
or concurrent with the provision of medical treatment services
pursuant to Section 4600.
(b) Every employer shall establish a utilization review process in
compliance with this section, either directly or through its insurer
or an entity with which an employer or insurer contracts for these
services.
(c) Each utilization review process shall be governed by written
policies and procedures. These policies and procedures shall ensure
that decisions based on the medical necessity to cure and relieve of
proposed medical treatment services are consistent with the schedule
for medical treatment utilization adopted pursuant to Section
5307.27. These policies and procedures, and a description of the
utilization process, shall be filed with the administrative director
and shall be disclosed by the employer to employees, physicians, and
the public upon request.
(d) If an employer, insurer, or other entity subject to this
section requests medical information from a physician in order to
determine whether to approve, modify, delay, or deny requests for
authorization, the employer shall request only the information
reasonably necessary to make the determination. The employer,
insurer, or other entity shall employ or designate a medical director
who holds an unrestricted license to practice medicine in this state
issued pursuant to Section 2050 or Section 2450 of the Business and
Professions Code. The medical director shall ensure that the process
by which the employer or other entity reviews and approves, modifies,
delays, or denies requests by physicians prior to, retrospectively,
or concurrent with the provision of medical treatment services,
complies with the requirements of this section. Nothing in this
section shall be construed as restricting the existing authority of
the Medical Board of California.
(e) No person other than a physician who holds the same California
license as that held by the requesting physician who is competent to
evaluate the specific clinical issues involved in the medical
treatment services, and where these services are within the scope of
the physician's practice, requested by the physician may modify,
delay, or deny requests for authorization of medical treatment for
reasons of medical necessity to cure and relieve.
(f) The criteria or guidelines used in the utilization review
process to determine whether to approve, modify, delay, or deny
medical treatment services shall be all of the following:
(1) Developed with involvement from actively practicing
physicians.
(2) Consistent with the schedule for medical treatment utilization
adopted pursuant to Section 5307.27.
(3) Evaluated at least annually, and updated if necessary.
(4) Disclosed to the physician and the employee, if used as the
basis of a decision to modify, delay, or deny services in a specified
case under review.
(5) Available to the public upon request. An employer shall only
be required to disclose the criteria or guidelines for the specific
procedures or conditions requested. An employer may charge members of
the public reasonable copying and postage expenses related to
disclosing criteria or guidelines pursuant to this paragraph.
Criteria or guidelines may also be made available through electronic
means. No charge shall be required for an employee whose physician's
request for medical treatment services is under review.
(g) In determining whether to approve, modify, delay, or deny
requests by physicians prior to, retrospectively, or concurrent with
the provisions of medical treatment services to employees all of the
following requirements shall be met:
(1) Prospective or concurrent decisions shall be made in a timely
fashion that is appropriate for the nature of the employee's
condition, not to exceed five working days from the receipt of the
information reasonably necessary to make the determination, but in no
event more than 14 days from the date of the medical treatment
recommendation by the physician. In cases where the review is
retrospective, a decision resulting in denial of all or part of the
medical treatment service shall be communicated to the individual who
received services, or to the individual's designee, within 30 days
of receipt of information that is reasonably necessary to make this
determination. If payment for a medical treatment service is made
within the time prescribed by Section 4603.2, a retrospective
decision to approve the service need not otherwise be communicated.
(2) When the employee's condition is such that the employee faces
an imminent and serious threat to his or her health, including, but
not limited to, the potential loss of life, limb, or other major
bodily function, or the normal timeframe for the decisionmaking
process, as described in paragraph (1), would be detrimental to the
employee's life or health or could jeopardize the employee's ability
to regain maximum function, decisions to approve, modify, delay, or
deny requests by physicians prior to, or concurrent with, the
provision of medical treatment services to employees shall be made in
a timely fashion that is appropriate for the nature of the employee'
s condition, but not to exceed 72 hours after the receipt of the
information reasonably necessary to make the determination.
(3) (A) Decisions to approve, modify, delay, or deny requests by
physicians for authorization prior to, or concurrent with, the
provision of medical treatment services to employees shall be
communicated to the requesting physician within 24 hours of the
decision. Decisions resulting in modification, delay, or denial of
all or part of the requested health care service shall be
communicated to physicians initially by telephone or facsimile, and
to the physician and employee in writing within 24 hours for
concurrent review, or within two business days of the decision for
prospective review, as prescribed by the administrative director. If
the request is not approved in full, disputes shall be resolved in
accordance with Section 4610.5, if applicable, or otherwise in
accordance with Section 4062.
(B) In the case of concurrent review, medical care shall not be
discontinued until the employee's physician has been notified of the
decision and a care plan has been agreed upon by the physician that
is appropriate for the medical needs of the employee. Medical care
provided during a concurrent review shall be care that is medically
necessary to cure and relieve, and an insurer or self-insured
employer shall only be liable for those services determined medically
necessary to cure and relieve. If the insurer or self-insured
employer disputes whether or not one or more services offered
concurrently with a utilization review were medically necessary to
cure and relieve, the dispute shall be resolved pursuant to Section
4610.5, if applicable, or otherwise pursuant to Section 4062. Any
compromise between the parties that an insurer or self-insured
employer believes may result in payment for services that were not
medically necessary to cure and relieve shall be reported by the
insurer or the self-insured employer to the licensing board of the
provider or providers who received the payments, in a manner set
forth by the respective board and in such a way as to minimize
reporting costs both to the board and to the insurer or self-insured
employer, for evaluation as to possible violations of the statutes
governing appropriate professional practices. No fees shall be levied
upon insurers or self-insured employers making reports required by
this section.
(4) Communications regarding decisions to approve requests by
physicians shall specify the specific medical treatment service
approved. Responses regarding decisions to modify, delay, or deny
medical treatment services requested by physicians shall include a
clear and concise explanation of the reasons for the employer's
decision, a description of the criteria or guidelines used, and the
clinical reasons for the decisions regarding medical necessity. If a
utilization review decision to deny or delay a medical service is due
to incomplete or insufficient information, the decision shall
specify the reason for the decision and specify the information that
is needed.
(5) If the employer, insurer, or other entity cannot make a
decision within the timeframes specified in paragraph (1) or (2)
because the employer or other entity is not in receipt of all of the
information reasonably necessary and requested, because the employer
requires consultation by an expert reviewer, or because the employer
has asked that an additional examination or test be performed upon
the employee that is reasonable and consistent with good medical
practice, the employer shall immediately notify the physician and the
employee, in writing, that the employer cannot make a decision
within the required timeframe, and specify the information requested
but not received, the expert reviewer to be consulted, or the
additional examinations or tests required. The employer shall also
notify the physician and employee of the anticipated date on which a
decision may be rendered. Upon receipt of all information reasonably
necessary and requested by the employer, the employer shall approve,
modify, or deny the request for authorization within the timeframes
specified in paragraph (1) or (2).
(6) A utilization review decision to modify, delay, or deny a
treatment recommendation shall remain effective for 12 months from
the date of the decision without further action by the employer with
regard to any further recommendation by the same physician for the
same treatment unless the further recommendation is supported by a
documented change in the facts material to the basis of the
utilization review decision.
(7) Utilization review of a treatment recommendation shall not be
required while the employer is disputing liability for injury or
treatment of the condition for which treatment is recommended
pursuant to Section 4062.
(8) If utilization review is deferred pursuant to paragraph (7),
and it is finally determined that the employer is liable for
treatment of the condition for which treatment is recommended, the
time for the employer to conduct retrospective utilization review in
accordance with paragraph (1) shall begin on the date the
determination of the employer's liability becomes final, and the time
for the employer to conduct prospective utilization review shall
commence from the date of the employer's receipt of a treatment
recommendation after the determination of the employer's liability.
(h) Every employer, insurer, or other entity subject to this
section shall maintain telephone access for physicians to request
authorization for health care services.
(i) If the administrative director determines that the employer,
insurer, or other entity subject to this section has failed to meet
any of the timeframes in this section, or has failed to meet any
other requirement of this section, the administrative director may
assess, by order, administrative penalties for each failure. A
proceeding for the issuance of an order assessing administrative
penalties shall be subject to appropriate notice to, and an
opportunity for a hearing with regard to, the person affected. The
administrative penalties shall not be deemed to be an exclusive
remedy for the administrative director. These penalties shall be
deposited in the Workers' Compensation Administration Revolving Fund.
SEC. 3. SEC. 5. Section 4610.6 of
the Labor Code is amended to read:
4610.6. (a) Upon receipt of a case pursuant to Section 4610.5, an
independent medical review organization shall conduct the review in
accordance with this article and any regulations or orders of the
administrative director. The organization's review shall be limited
to an examination of the medical necessity of the disputed medical
treatment.
(b) Upon receipt of information and documents related to a case,
the medical reviewer or reviewers selected to conduct the review by
the independent medical review organization shall promptly review all
pertinent medical records of the employee, provider reports, and any
other information submitted to the organization or requested from
any of the parties to the dispute by the reviewers. If the reviewers
request information from any of the parties, a copy of the request
and the response shall be provided to all of the parties. The
reviewer or reviewers shall also review relevant information related
to the criteria set forth in subdivision (c).
(c) Following its review, the reviewer or reviewers shall
determine whether the disputed health care service was medically
necessary based on the specific medical needs of the employee and the
standards of medical necessity as defined
in subdivision (c) of Section 4610.5.
(d) The organization shall complete its review and make its
determination in writing, and in layperson's terms to the maximum
extent practicable, within 30 days of the receipt of the request for
review and supporting documentation, or within less time as
prescribed by the administrative director. If the disputed medical
treatment has not been provided and the employee's provider or the
administrative director certifies in writing that an imminent and
serious threat to the health of the employee may exist, including,
but not limited to, serious pain, the potential loss of life, limb,
or major bodily function, or the immediate and serious deterioration
of the health of the employee, the analyses and determinations of the
reviewers shall be expedited and rendered within three days of the
receipt of the information. Subject to the approval of the
administrative director, the deadlines for analyses and
determinations involving both regular and expedited reviews may be
extended for up to three days in extraordinary circumstances or for
good cause.
(e) The medical professionals' analyses and determinations shall
state whether the disputed health care service is medically
necessary. Each analysis shall cite the employee's medical condition,
the relevant documents in the record, and the relevant findings
associated with the provisions of subdivision (c) to support the
determination. If more than one medical professional reviews the
case, the recommendation of the majority shall prevail. If the
medical professionals reviewing the case are evenly split as to
whether the disputed health care service should be provided, the
decision shall be in favor of providing the service.
(f) The independent medical review organization shall provide the
administrative director, the employer, the employee, and the employee'
s provider with the analyses and determinations of the medical
professionals reviewing the case, and a description of the
qualifications of the medical professionals. Independent medical
reviews shall be conducted by medical professionals who hold the same
California license as the requesting physician. If more than one
medical professional reviewed the case and the result was differing
determinations, the independent medical review organization shall
provide each of the separate reviewer's analyses and determinations.
(g) The determination of the independent medical review
organization shall be deemed to be the determination of the
administrative director and shall be binding on all parties.
(h) A determination of the administrative director pursuant to
this section may be reviewed only by a verified appeal from the
medical review determination of the administrative director, filed
with the appeals board for hearing pursuant to Chapter 3 (commencing
with Section 5500) of Part 4 and served on all interested parties
within 30 days of the date of mailing of the determination to the
aggrieved employee or the aggrieved employer. The determination of
the administrative director shall be presumed to be correct and shall
be set aside only upon proof by clear and convincing evidence of one
or more of the following grounds for appeal:
(1) The administrative director acted without or in excess of the
administrative director's powers.
(2) The determination of the administrative director was procured
by fraud.
(3) The independent medical reviewer was subject to a material
conflict of interest that is in violation of Section 139.5.
(4) The determination was the result of bias on the basis of race,
national origin, ethnic group identification, religion, age, sex,
sexual orientation, color, or disability.
(5) The determination was the result of a plainly erroneous
express or implied finding of fact, provided that the mistake of fact
is a matter of ordinary knowledge based on the information submitted
for review pursuant to Section 4610.5 and not a matter that is
subject to expert opinion.
(i) If the determination of the administrative director is
reversed, the dispute shall be remanded to the administrative
director to submit the dispute to independent medical review by a
different independent review organization. In the event that a
different independent medical review organization is not available
after remand, the administrative director shall submit the dispute to
the original medical review organization for review by a different
reviewer in the organization.
(j) Upon receiving the determination of the administrative
director that a disputed health care service is medically necessary,
the employer shall promptly implement the decision as provided by
this section unless the employer has also disputed liability for any
reason besides medical necessity. In the case of reimbursement for
services already rendered, the employer shall reimburse the provider
or employee, whichever applies, within 20 days, subject to resolution
of any remaining issue of the amount of payment pursuant to Sections
4603.2 to 4603.6, inclusive. In the case of services not yet
rendered, the employer shall authorize the services within five
working days of receipt of the written determination from the
independent medical review organization, or sooner if appropriate for
the nature of the employee's medical condition, and shall inform the
employee and provider of the authorization.
(k) Failure to pay for services already provided or to authorize
services not yet rendered within the time prescribed by subdivision
(l) is a violation of this section and, in addition to any other
fines, penalties, and other remedies available to the administrative
director, the employer shall be subject to an administrative penalty
in an amount determined pursuant to regulations to be adopted by the
administrative director, not to exceed five thousand dollars ($5,000)
for each day the decision is not implemented. The administrative
penalties shall be paid to the Workers' Compensation Administration
Revolving Fund.
(l) The costs of independent medical review and the administration
of the independent medical review system shall be borne by employers
through a fee system established by the administrative director.
After considering any relevant information on program costs, the
administrative director shall establish a reasonable, per-case
reimbursement schedule to pay the costs of independent medical review
organization reviews and the cost of administering the independent
medical review system, which may vary depending on the type of
medical condition under review and on other relevant factors.
(m) The administrative director may publish the results of
independent medical review determinations after removing individually
identifiable information.
(n) If any provision of this section, or the application thereof
to any person or circumstances, is held invalid, the remainder of the
section, and the application of its provisions to other persons or
circumstances, shall not be affected thereby.
SEC. 4. SEC. 6. Section 4616 of the
Labor Code is amended to read:
4616. (a) (1) On or after January 1, 2005, an insurer, employer,
or entity that provides physician network services may establish or
modify a medical provider network for the provision of medical
treatment to injured employees. The network shall include physicians
primarily engaged in the treatment of occupational injuries. The
administrative director shall encourage the integration of
occupational and nonoccupational providers. The number of physicians
in the medical provider network shall be sufficient to enable
treatment for injuries or conditions to be provided in a timely
manner. The provider network shall include an adequate number and
type of physicians, as described in Section 3209.3, or other
providers, as described in Section 3209.5, to treat common injuries
experienced by injured employees based on the type of occupation or
industry in which the employee is engaged, and the geographic area
where the employees are employed.
(2) Medical treatment for injuries shall be readily available at
reasonable times to all employees. To the extent feasible, all
medical treatment for injuries shall be readily accessible to all
employees. With respect to availability and accessibility of
treatment, the administrative director shall consider the needs of
rural areas, specifically those in which health facilities are
located at least 30 miles apart and areas in which there is a health
care shortage.
(3) Commencing January 1, 2014, a treating physician shall be
included in the network only if, at the time of entering into or
renewing an agreement by which the physician would be in the network,
the physician, or an authorized employee of the physician or the
physician's office, provides a separate written acknowledgment in
which the physician affirmatively elects to be a member of the
network. Copies of the written acknowledgment shall be provided to
the administrative director upon the administrative director's
request. This paragraph shall not apply to a physician who is a
shareholder, partner, or employee of a medical group that elects to
be part of the network.
(4) Commencing January 1, 2014, every medical provider network
shall post on its Internet Web site a roster of all treating
physicians in the medical provider network and shall update the
roster at least quarterly. Every network shall provide to the
administrative director the Internet Web site address of the network
and of its roster of treating physicians. The administrative director
shall post, on the division's Internet Web site, the Internet Web
site address of every approved medical provider network.
(5) Commencing January 1, 2014, every medical provider network
shall provide one or more persons within the United States to serve
as medical access assistants to help an injured employee find an
available physician of the employee's choice, and subsequent
physicians if necessary, under Section 4616.3. Medical access
assistants shall have a toll-free telephone number that injured
employees may use and shall be available at least from 7 a.m. to 8
p.m. Pacific Standard Time, Monday through Saturday, inclusive, to
respond to injured employees, contact physicians' offices during
regular business hours, and schedule appointments. The administrative
director shall promulgate regulations on or before July 1, 2013,
governing the provision of medical access assistants.
(b) (1) An insurer, employer, or entity that provides physician
network services shall submit a plan for the medical provider network
to the administrative director for approval. The administrative
director shall approve the plan for a period of four years if he or
she determines that the plan meets the requirements of this section.
If the administrative director does not act on the plan within 60
days of submitting the plan, it shall be deemed approved. Commencing
January 1, 2014, existing approved plans shall be deemed approved for
a period of four years from the most recent application or
modification approval date. Plans for reapproval for medical provider
networks shall be submitted at least six months before the
expiration of the four-year approval period. Upon a showing that the
medical provider network was approved or deemed approved by the
administrative director, there shall be a conclusive presumption on
the part of the appeals board that the medical provider network was
validly formed.
(2) Every medical provider network shall establish and follow
procedures to continuously review the quality of care, performance of
medical personnel, utilization of services and facilities, and
costs.
(3) Every medical provider network shall submit geocoding of its
network for reapproval to establish that the number and geographic
location of physicians in the network meets the required access
standards.
(4) The administrative director shall at any time have the
discretion to investigate complaints and to conduct random reviews of
approved medical provider networks.
(5) Approval of a plan may be denied, revoked, or suspended if the
medical provider network fails to meet the requirements of this
article. Any person contending that a medical provider network is not
validly constituted may petition the administrative director to
suspend or revoke the approval of the medical provider network. The
administrative director may adopt regulations establishing a schedule
of administrative penalties not to exceed five thousand dollars
($5,000) per violation, or probation, or both, in lieu of revocation
or suspension for less severe violations of the requirements of this
article. Penalties, probation, suspension, or revocation shall be
ordered by the administrative director only after notice and
opportunity to be heard. Unless suspended or revoked by the
administrative director, the administrative director's approval of a
medical provider network shall be binding on all persons and all
courts. A determination of the administrative director may be
reviewed only by an appeal of the determination of the administrative
director filed as an original proceeding before the reconsideration
unit of the workers' compensation appeals board on the same grounds
and within the same time limits after issuance of the determination
as would be applicable to a petition for reconsideration of a
decision of a workers' compensation administrative law judge.
(c) Physician compensation may not be structured in order to
achieve the goal of reducing, delaying, or denying medical treatment
or restricting access to medical treatment.
(d) If the employer or insurer meets the requirements of this
section, the administrative director may not withhold approval or
disapprove an employer's or insurer's medical provider network based
solely on the selection of providers. In developing a medical
provider network, an employer or insurer shall have the exclusive
right to determine the members of their network.
(e) All treatment provided shall be provided in accordance with
the medical treatment utilization schedule established pursuant to
Section 5307.27.
(f) No person other than a physician who holds the same California
license as the requesting physician who is competent to evaluate the
specific clinical issues involved in the medical treatment services,
when these services are within the scope of the physician's
practice, may modify, delay, or deny requests for authorization of
medical treatment.
(g) Commencing January 1, 2013, every contracting agent that
sells, leases, assigns, transfers, or conveys its medical provider
networks and their contracted reimbursement rates to an insurer,
employer, entity that provides physician network services, or another
contracting agent shall, upon entering or renewing a provider
contract, disclose to the provider whether the medical provider
network may be sold, leased, transferred, or conveyed to other
insurers, employers, entities that provide physician network
services, or another contracting agent, and specify whether those
insurers, employers, entities that provide physician network
services, or contracting agents include workers' compensation
insurers.
(h) On or before November 1, 2004, the administrative director, in
consultation with the Department of Managed Health Care, shall adopt
regulations implementing this article. The administrative director
shall develop regulations that establish procedures for purposes of
making medical provider network modifications.
SEC. 5. SEC. 7. Section 4660.1 of
the Labor Code is amended to read:
4660.1. This section shall apply to injuries occurring on or
after January 1, 2013.
(a) In determining the percentages of permanent partial or
permanent total disability, account shall be taken of the nature of
the physical injury or disfigurement, the occupation of the injured
employee, and his or her age at the time of injury.
(b) For purposes of this section, the "nature of the physical
injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding
percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment
(5th edition) with the employee's whole person impairment, as
provided in the guides, multiplied by an adjustment factor of 1.4.
(c) There shall be no increases in impairment ratings for sleep
dysfunction or sexual dysfunction, or both, arising out of a
compensable physical injury. Nothing in this section shall limit the
ability of an injured employee to obtain treatment for sleep
dysfunction or sexual dysfunction, if any, that are a consequence of
an industrial injury.
(d) The administrative director may formulate a schedule of age
and occupational modifiers and may amend the schedule for the
determination of the age and occupational modifiers in accordance
with this section. The Schedule for Rating Permanent Disabilities
pursuant to the American Medical Association (AMA) Guides to the
Evaluation of Permanent Impairment (5th edition) and the schedule of
age and occupational modifiers shall be available for public
inspection and, without formal introduction in evidence, shall be
prima facie evidence of the percentage of permanent disability to be
attributed to each injury covered by the schedule. Until the schedule
of age and occupational modifiers is amended, for injuries occurring
on or after January 1, 2013, permanent disabilities shall be rated
using the age and occupational modifiers in the permanent disability
rating schedule adopted as of January 1, 2005.
(e) The schedule of age and occupational modifiers shall promote
consistency, uniformity, and objectivity.
(f) The schedule of age and occupational modifiers and any
amendment thereto or revision thereof shall apply prospectively and
shall apply to and govern only those permanent disabilities that
result from compensable injuries received or occurring on and after
the effective date of the adoption of the schedule, amendment, or
revision, as the case may be.
(g) Nothing in this section shall preclude a finding of permanent
total disability in accordance with Section 4662.
(h) In enacting the act adding this section, it is not the intent
of the Legislature to overrule the holding in Milpitas Unified School
District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187
Cal.App.4th 808.
(i) The Commission on Health and Safety and Workers' Compensation
shall conduct a study to compare average loss of earnings for
employees who sustained work-related injuries with permanent
disability ratings under the schedule, and shall report the results
of the study to the appropriate policy and fiscal committees of the
Legislature no later than January 1, 2016.
