BILL NUMBER: AB 584 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2011
INTRODUCED BY Assembly Member Fong
FEBRUARY 16, 2011
An act to amend Sections 3209.3 and 4610 of the Labor Code,
and to amend Section 2708 of the Unemployment Insurance Code,
relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 584, as amended, Fong. Workers' compensation: utilization
review.
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 the Employment Development Department to
administer the disability compensation program. Existing law requires
a claim for disability benefits to be supported by a certification
of a treating physician or practitioner. Existing law defines
physician by reference to the above provision and defines a
practitioner as a person duly licensed or certified in California
acting within the scope of his or her license or certification who is
a dentist, podiatrist, or nurse practitioner, as specified, or, as
to normal pregnancy or childbirth, a midwife, nurse midwife, or a
nurse practitioner.
This bill would provide that claim for disability benefits may
also be supported by a health professional as defined, and as
specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
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 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. 3. Section 2708 of the Unemployment
Insurance Code is amended to read:
2708. (a) (1) In accordance with the director's authorized
regulations, and except as provided in subdivision (c) and Sections
2708.1 and 2709, a claimant shall establish medical eligibility for
each uninterrupted period of disability by filing a first claim for
disability benefits supported by the certificate of a treating
physician , health professional, or practitioner that
establishes the sickness, injury, or pregnancy of the employee, or
the condition of the family member that warrants the care of the
employee. For subsequent periods of uninterrupted disability after
the period covered by the initial certificate or any preceding
continued claim, a claimant shall file a continued claim for those
benefits supported by the certificate of a treating physician ,
health professional, or practitioner. A certificate filed to
establish medical eligibility for the employee's own sickness,
injury, or pregnancy shall contain a diagnosis and diagnostic code
prescribed in the International Classification of Diseases, or, where
no diagnosis has yet been obtained, a detailed statement of
symptoms.
(2) A certificate filed to establish medical eligibility of the
employee's own sickness, injury, or pregnancy shall also contain a
statement of medical facts including secondary diagnoses when
applicable, within the physician's , health professional'
s, or practitioner's knowledge, based on a physical
examination and a documented medical history of the claimant by the
physician , health professional, or practitioner,
indicating the physician's or practitioner's conclusion as to the
claimant's disability, and a statement of the physician's ,
health professional's, or practitioner's opinion as to the
expected duration of the disability.
(b) An employee shall be required to file a certificate to
establish eligibility when taking leave to care for a family member
with a serious health condition. The certificate shall be developed
by the department. In order to establish medical eligibility of the
serious health condition of the family member that warrants the care
of the employee, the information shall be within the physician's
, health professional' s, or practitioner's
knowledge and shall be based on a physical examination and documented
medical history of the family member and shall contain all of the
following:
(1) A diagnosis and diagnostic code prescribed in the
International Classification of Diseases, or, where no diagnosis has
yet been obtained, a detailed statement of symptoms.
(2) The date, if known, on which the condition commenced.
(3) The probable duration of the condition.
(4) An estimate of the amount of time that the physician ,
health professional , or practitioner believes the
employee is needed to care for the child, parent, spouse, or domestic
partner.
(5) (A) A statement that the serious health condition warrants the
participation of the employee to provide care for his or her child,
parent, spouse, or domestic partner.
(B) "Warrants the participation of the employee" includes, but is
not limited to, providing psychological comfort, and arranging "third
party" care for the child, parent, spouse, or domestic partner, as
well as directly providing, or participating in, the medical care.
(c) The department shall develop a certification form for bonding
that is separate and distinct from the certificate required in
subdivision (a) for an employee taking leave to bond with a minor
child within the first year of the child's birth or placement in
connection with foster care or adoption.
(d) The first and any continuing claim of an individual who
obtains care and treatment outside this state shall be supported by a
certificate of a treating physician , health professional,
or practitioner duly licensed or certified by the state or
foreign country in which the claimant is receiving the care and
treatment. If a physician , health professional, or
practitioner licensed by and practicing in a foreign country is under
investigation by the department for filing false claims and the
department does not have legal remedies to conduct a criminal
investigation or prosecution in that country, the department may
suspend the processing of all further certifications until the
physician , health professional, or practitioner fully
cooperates, and continues to cooperate with the investigation. A
physician , health professional's, or practitioner
licensed by and practicing in a foreign country who has been
convicted of filing false claims with the department may not file a
certificate in support of a claim for disability benefits for a
period of five years.
(e) For purposes of this part:
(1) "Health professional" means a psychologist, optometrist,
dentist, podiatrist, or chiropractor, provided that he or she is duly
licensed on any state or foreign country, or in a territory or
possession of a country, in which care and treatment was provided to
the employee or the employee's family member with a serious health
condition. The care and treatment shall be within the scope of his or
her practice, as defined by the laws of the licensing jurisdiction.
For purposes of this part, all references to a physician shall be
also deemed to apply to a health professional.
(1)
(2) "Physician" has the same meaning as
defined in Section 3209.3 of the Labor Code means a
physician and surgeon holding an M.D. or D.O. degree, provided that
he or she is duly licensed in any state or foreign country, or in a
territory or possession of any country, in which care and treatment
was provided to the employee or the employee's family
member with a serious health condition. The care and treatment shall
be within the scope of his or her practice, as defined by the laws of
the licensing jurisdiction .
(2)
( 3) (A) "Practitioner"
means a person duly licensed or certified in California
acting within the scope of his or her license or certification who is
a dentist, podiatrist, or a nurse practitioner, and in the case of a
nurse practitioner, after performance of a physical examination by a
nurse practitioner and collaboration with a physician and surgeon,
or as to normal pregnancy or childbirth, a midwife or nurse midwife,
or nurse practitioner nurse practitioner who is duly
licensed or certified in any state or foreign country, or in a
territory or possession of any country, in which he or she has
provided care and treatment to the employee or the employee's family
member with a serious health condition. The care and treatment shall
be within the scope of his or her practice, as defined by the laws of
the licensing or certifying jurisdiction and the nurse practitioner
shall have performed a physical examination and collaborated with a
physician and surgeon holding an M.D. or D.O. degree .
(B) For purposes of normal pregnancy or childbirth, "practitioner"
means a midwife, nurse midwife, or a nurse practitioner operating
within the scope of his or her practice, as determined by the laws of
the licensing or certifying jurisdiction, who is duly licensed or
certified in any state or foreign country, or a territory or
possession of a country, in which he or she has provided care to the
employee or the employee's family member with a serious health
condition.
(f) For a claimant who is hospitalized in or under the authority
of a county hospital in this state, a certificate of initial and
continuing medical disability, if any, shall satisfy the requirements
of this section if the disability is shown by the claimant's
hospital chart, and the certificate is signed by the hospital's
registrar. For a claimant hospitalized in or under the care of a
medical facility of the United States government, a certificate of
initial and continuing medical disability, if any, shall satisfy the
requirements of this section if the disability is shown by the
claimant's hospital chart, and the certificate is signed by a medical
officer of the facility duly authorized to do so.
(g) Nothing in this This section
shall not be construed to preclude the department from
requesting additional medical evidence to supplement the first or any
continued claim if the additional evidence can be procured without
additional cost to the claimant. The department may require that the
additional evidence include any or all of the following:
(1) Identification of diagnoses.
(2) Identification of symptoms.
(3) A statement setting forth the facts of the claimant's
disability. The statement shall be completed by any of the following
individuals:
(A) The physician , health professional, or
practitioner treating the claimant.
(B) The registrar, authorized medical officer, or other duly
authorized official of the hospital or health facility treating the
claimant.
(C) An examining physician or other representative of the
department.