BILL NUMBER: AB 933 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2010
INTRODUCED BY Assembly Member Fong
FEBRUARY 26, 2009
An act to amend Sections 3209.3 and 4610 ,
3762, 4610, and 4616 of the Labor Code, relating to workers'
compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 933, as amended, Fong. Workers' compensation:
utilization review. medical treatment.
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, for purposes of workers' compensation, defines
"psychologist" to mean a licensed psychologist with a doctoral degree
in psychology, or a doctoral degree deemed equivalent for licensure
by the Board of Psychology, as specified, and who either has at least
two years of clinical experience in a recognized health setting or
has met the standards of the National Register of the Health Service
Providers in Psychology.
This bill would require the psychologist to be licensed by
California state law.
Existing law requires every employer to establish a medical
treatment utilization review process, in compliance with specified
requirements, either directly or through its insurer or an entity
with which the employer or insurer contracts for these services.
Existing law provides that no person other than a licensed 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.
This bill would require the physician to be licensed by California
state law.
Existing law authorizes an employer or insurer to establish or
modify a medical provider network for the provision of medical
treatment to injured employees, and to submit a medical provider
network plan to the administrative director for approval.
This bill would require reapproval of a medical provider network
plan every 3 years. This bill would also require a medical provider
network plan approved before January 1, 2011, to be resubmitted to
the administrative director for approval, as specified. This bill
would permit an employer or insurer to submit a statement signed
under penalty of perjury attesting that there have been no changes to
a plan since it was last approved by the administrative director. By
expanding the scope of a crime, this bill would impose a
state-mandated local program.
This bill would also require by April 1, 2011, the administrative
director to require that procedures be established to ensure that a
list of the medical providers made available for selection to provide
treatment to an injured employee is accurate and updated
semiannually.
Existing law requires every employer except the state to secure
the payment of workers' compensation either by being insured against
liability by one or more insurers duly authorized to write
compensation insurance in this state or by securing a certificate of
consent to self-insure from the Director of Industrial Relations.
Existing law requires an insurer, with certain exceptions, to discuss
all elements of a workers' compensation claim file that affect the
employer's premium with the employer, and to supply copies of the
documents that affect the premium at the employer's expense during
reasonable business hours.
This bill would expressly provide that specified items are
elements of a claim file that affect the employer's premium.
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: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3209.3 of the Labor Code is amended to read:
3209.3. (a) "Physician" means physicians and surgeons holding an
M.D. or D.O. degree, psychologists, acupuncturists, optometrists,
dentists, podiatrists, and chiropractic practitioners licensed by
California state law and within the scope of their practice as
defined by California state law.
(b) "Psychologist" means a psychologist licensed by California
state law with 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, and who either
has at least two years of clinical experience in a recognized health
setting or has met the standards of the National Register of the
Health Service Providers in Psychology.
(c) When treatment or evaluation for an injury is provided by a
psychologist, provision shall be made for appropriate medical
collaboration when requested by the employer or the insurer.
(d) "Acupuncturist" means a person who holds an acupuncturist's
certificate issued pursuant to Chapter 12 (commencing with Section
4925) of Division 2 of the Business and Professions Code.
(e) Nothing in this section shall be construed to authorize
acupuncturists to determine disability for the purposes of Article 3
(commencing with Section 4650) of Chapter 2 of Part 2, or under
Section 2708 of the Unemployment Insurance Code.
SEC. 2. Section 3762 of the Labor Code
is amended to read:
3762. (a) Except as provided in subdivisions (b) and (c), the
insurer shall discuss all elements of the claim file that affect the
employer's premium with the employer, and shall supply copies of the
documents that affect the premium at the employer's expense during
reasonable business hours. Elements of the claim file that
affect the employer's premium include, but are not limited to, a loss
adjustment expense paid as a result of medical cost containment
services ordered by the insurer, if the medical cost containment
services ordered by the insurer were provided by a third party, the
name of the third party, and whether a portion of the loss adjustment
expense was retained, rebated, or reimbursed to the insurer or an
entity in which the insurer has a financial interest.
(b) The right provided by this section shall not extend to any
document that the insurer is prohibited from disclosing to the
employer under the attorney-client privilege, any other applicable
privilege, or statutory prohibition upon disclosure, or under Section
1877.4 of the Insurance Code.
(c) An insurer, third-party administrator retained by a
self-insured employer pursuant to Section 3702.1 to administer the
employer's workers' compensation claims, and those employees and
agents specified by a self-insured employer to administer the
employer's workers' compensation claims, are prohibited from
disclosing or causing to be disclosed to an employer, any medical
information, as defined in subdivision (b) of Section 56.05 of the
Civil Code, about an employee who has filed a workers' compensation
claim, except as follows:
(1) Medical information limited to the diagnosis of the mental or
physical condition for which workers' compensation is claimed and the
treatment provided for this condition.
(2) Medical information regarding the injury for which workers'
compensation is claimed that is necessary for the employer to have in
order for the employer to modify the employee's work duties.
SEC. 2. SEC. 3. 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. Prior to adoption of the schedule, these policies and
procedures shall be consistent with the recommended standards set
forth in the American College of Occupational and Environmental
Medicine Occupational Medical Practice Guidelines. 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 licensed by California state
law 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. Prior to adoption of the
schedule, these policies and procedures shall be consistent with the
recommended standards set forth in the American College of
Occupational and Environmental Medicine Occupational Medical Practice
Guidelines.
(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 must 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, the decision 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.
(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 4062. If a request to perform spinal surgery
is denied, disputes shall be resolved in accordance with subdivision
(b) of 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
4062, except in cases involving recommendations for the performance
of spinal surgery, which shall be governed by the provisions of
subdivision (b) of 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.
(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).
(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. 4. Section 4616 of the Labor Code
is amended to read:
4616. (a) (1) On or after January 1, 2005, an insurer or employer
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 and physicians primarily engaged in the treatment of
nonoccupational injuries. The goal shall be at least 25 percent of
physicians primarily engaged in the treatment of nonoccupational
injuries. The administrative director shall encourage the integration
of occupational and nonoccupational providers. The number and
the office locat ions 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 employee is employed and
resides .
(2) Medical treatment for injuries shall be readily available at
reasonable times to all employees. To the extent feasible,
all 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.
(b) (1) The employer or insurer shall submit
a plan for the medical provider network to the administrative
director for approval. The administrative director shall
approve the plan 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.
(2) A medical provider network plan submitted pursuant to this
subdivision shall have a three-year approval term.
(3) An employer or insurer seeking renewal of its medical provider
network plan shall resubmit its plan at least 60 days prior to the
anniversary of the plan's three-year approval term. The employer or
insurer shall include information as may be required by the
administrative director at the time of resubmission so that the
administrative director may determine that the plan meets the
requirements of this section. If there have been no changes to the
plan since it was last approved by the administrative director, the
employer or insurer may submit a statement signed under penalty of
perjury attesting that there have been no changes, and the
administrative director shall approve the resubmitted plan for a new
three-year term of approval.
(4) A plan that was approved before January 1, 2011, shall be
resubmitted to the administrative director for approval as follows:
(A) A plan that was approved before January 1, 2009, shall be
resubmitted to the administrative director for approval by April 1,
2012.
(B) A plan that was approved on or after January 1, 2009, shall be
resubmitted to the administrative director at least 60 days prior to
the three-year anniversary of the plan's approval.
(5) The administrative director shall approve the plan submitted
by an employer or insurer if the administrative director determines
that the plan meets the requirements of this section. If the
administrative director does not act on the plan within 60 days of
submission, it shall be deemed approved.
(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 or the American College of Occupational
Medicine's Occupational Medicine Practice Guidelines, as appropriate
.
(f) No person other than a licensed physician
licensed by California state law 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) By April 1, 2011, the
administrative director shall require that procedures be established
to ensure that a list of the medical providers made available for
selection to provide treatment to an injured employee pursuant to
this section is accurate and updated semiannually.
(g)
(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. 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.