Amended in Senate August 1, 2016

Amended in Senate May 16, 2016

Amended in Assembly March 30, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2086

Introduced by Assembly Members Cooley and Mathis

February 17, 2016

An act to amend Section 139.2 of the Labor Code, relating to workers’ compensation, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

AB 2086, as amended, Cooley. Workers’ compensation: neuropsychologists.

Existing workers’ compensation law generally requires employers to secure the payment of workers’ compensation, including medical treatment, for injuries incurred by their employees that arise out of, or in the course of, employment. Existing law requires the Administrative Director of the Division of Workers’ Compensation to appoint qualified medical evaluators in each of the respective specialties as required for the evaluation of medical-legal issues, including medical doctors and osteopaths who meet specified requirements, including, among others, that the evaluator is board certified in a specialty by a board recognized by the administrative director and the appropriate regulatory board, or the evaluator has successfully completed a residency training program accredited by the Accreditation Council for Graduate Medical Education. Existing law also provides that the requirements for a psychologist to be appointed as an evaluator include either being board certified in clinical psychology by a board recognized by the administrative director, holding a doctoral degree in psychology or a doctoral degree sufficient for licensure, and having at least 5 years of specified experience, or having at least 5 years of postdoctoral experience and having previously served as a medical evaluator.

This bill would provide that a medical doctor or osteopath who has successfully completed a residency or fellowship program accredited by begin delete the American Osteopathic Association or by an organization that is end delete a predecessor to the Accreditation Council for Graduate Medical begin delete Evaluation or the American Osteopathic Association end delete begin insert Education end insert would satisfy the residency training requirement. begin delete The bill would delete the requirement that the specialty board be recognized by the administrative director. The bill would authorize as a criterion for those purposes board certification by a board approved by the American Board of Medical Specialties, the American Osteopathic Association Bureau of Osteopathic Specialists, a speciality board with a program accredited by the Accreditation Council for Graduate Medical Education, the American Osteopathic Association, or other specialty boards, as specified, or approval by the appropriate regulatory board for an evaluator who is a medical doctor or doctor of osteopathic medicine. The bill would also authorize as a criterion, for those purposes, having qualifications that the administrative director and either the Medical Board of California or the Osteopathic Medical Board of California both deem are equivalent to board certification, as specified. end delete The bill would provide that a person who is certified in neuropsychology by specified boards or organizations, or who is a clinical psychologist licensed to practice in the state, holds a doctoral degree in psychology, and has at least 2 years of specified experience and training, and has served as an agreed medical evaluator in neuropsychology on 5 or more occasions may be appointed by the administrative director as a qualified medical evaluator in neuropsychology.

The bill would state findings and declarations of the Legislature relative to the need for neuropsychologists in the workers’ compensation system. The bill would make additional technical, nonsubstantive changes.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Section 4 of Article XIV of the California Constitution grants
the Legislature plenary power to create a workers’ compensation
system that includes adequate provision for the comfort, health
and safety, and general welfare of workers and their dependents
to relieve them of the consequences of any work-related injury or
death, irrespective of the fault of any party, and requires the
administration of the workers’ compensation system to accomplish
substantial justice in all cases expeditiously, inexpensively, and
without encumbrance of any character, all of which matters are
expressly declared to be the social public policy of this state.

(b) Because current state law requires high school athletes
suffering traumatic brain injuries and concussions be evaluated by
specially trained health care professionals, California workers
suffering similar injuries also need to be treated and evaluated by
appropriate health care professionals such as neuropsychologists.

(c) For more than 23 years, the State of California recognized
neuropsychology as a separate and distinct specialty for qualified
medical evaluators in the workers’ compensation system,
permitting injured workers to receive prompt and appropriate
assessment of their traumatic brain injuries.

(d) Even though the former Industrial Medical Council and the
current Division of Workers’ Compensation have recognized
various health care specialties for more than two decades, health
care licensing boards such as the Medical Board of California, the
Osteopathic Medical Board of California, and the Board of
Psychology have never recognized separate specialties and
subspecialties within their respective licensing jurisdictions.

(e) Pursuant to the plenary power granted by the Constitution,
the Legislature hereby establishes the criteria for the Administrative
Director of the Division of Workers’ Compensation to appoint
qualified medical evaluators in the specialty category of
neuropsychology.

SEC. 2.  

Section 139.2 of the Labor Code is amended to read:

139.2.  

(a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall
be for two-year terms.

(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs
(1), (2), (6), and (7), and, if the physician is a medical doctor,
doctor of osteopathic medicine, doctor of chiropractic, or a
psychologist, that he or she also meets the applicable requirements
in paragraph (3), (4), or (5).

(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating
competence in evaluating medical-legal issues in the workers’
compensation system. Physicians shall not be required to pass an
additional examination as a condition of reappointment. A
physician seeking appointment as a qualified medical evaluator
on or after January 1, 2001, shall also complete prior to
appointment, a course on disability evaluation report writing
approved by the administrative director. The administrative director
shall specify the curriculum to be covered by disability evaluation
report writing courses, which shall include, but is not limited to,
12 or more hours of instruction.

(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.

(3) Is a medical doctor or doctor of osteopathic medicine and
meets one of the following requirements:

(A) Is board certified in a specialty by a board begin delete approved by the
American Board of Medical Specialties, the American Osteopathic
Association Bureau of Osteopathic Specialists, or a specialty board
with a postgraduate training program accredited by the
Accreditation Council for Graduate Medical Education, the
American Osteopathic Association, or a specialty board with
equivalent requirements approved by end delete begin insert recognized by the
administrative director and either end insert the Medical Board of California
or the Osteopathic Medical Board of California.

(B) Has successfully completed a residency or fellowship
training program accredited by the Accreditation Council for
Graduate Medical begin delete Education, the American Osteopathic
Association, or a predecessor organization. end delete begin insert Education or a
predecessor organization, or osteopathic equivalent. end insert

(C) Was an active qualified medical evaluator on June 30, 2000.

(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board
of California, as appropriate, both deem to be equivalent to board
certification in a specialty.

(4) Is a doctor of chiropractic and has been certified in California
workers’ compensation evaluation by a provider recognized by
the administrative director. The certification program shall include
instruction on disability evaluation report writing that meets the
standards set forth in paragraph (1).

(5) Is a psychologist and meets one of the following
requirements:

(A) Is board certified in clinical psychology by a board
recognized by the administrative director.

(B) Holds a doctoral degree in psychology, or a doctoral degree
deemed equivalent for licensure by the Board of Psychology
pursuant to Section 2914 of the Business and Professions Code,
from a university or professional school recognized by the
administrative director and has not less than five years’
postdoctoral experience in the diagnosis and treatment of emotional
and mental disorders.

(C) Has not less than five years’ postdoctoral experience in the
diagnosis and treatment of emotional and mental disorders, and
has served as an agreed medical evaluator on eight or more
occasions prior to January 1, 1990.

(D) Is certified in clinical neuropsychology by the American
Board of Clinical Neuropsychology, the American Board of
Professional Neuropsychology, or another organization recognized
by the administrative director. A psychologist who meets the
requirements of this subparagraph may be appointed as a qualified
medical evaluator in neuropsychology.

(E) Is licensed to practice psychology in this state and has a
doctoral degree in psychology, or a doctoral degree deemed
equivalent for licensure by the Board of Psychology pursuant to
Section 2914 of the Business and Professions Code, from an
accredited university or college training program, has completed
an internship or its equivalent in a clinically relevant area of
professional psychology, has at least two years of experience and
specialized training, at least one year of which is at the postdoctoral
level, in the study and practice of clinical neuropsychology and
related neurosciences under the supervision of a clinical
neuropsychologist, and has served as an agreed medical evaluator
in neuropsychology on five or more occasions. A psychologist
who satisfies the requirements of this subparagraph may be
appointed as a qualified medical evaluator in neuropsychology.

(6) Does not have a conflict of interest as determined under the
regulations adopted by the administrative director pursuant to
subdivision (o).

(7) Meets any additional medical or professional standards
adopted pursuant to paragraph (6) of subdivision (j).

(c) The administrative director shall adopt standards for
appointment of physicians who are retired or who hold teaching
positions who are exceptionally well qualified to serve as a
qualified medical evaluator even though they do not otherwise
qualify under paragraph (2) of subdivision (b). A physician whose
full-time practice is limited to the forensic evaluation of disability
shall not be appointed as a qualified medical evaluator under this
subdivision.

(d) (1) The qualified medical evaluator, upon request, shall be
reappointed if he or she meets the qualifications of subdivision (b)
and meets all of the following criteria:

(A) Is in compliance with all applicable regulations and
evaluation guidelines adopted by the administrative director.

(B) Has not had more than five of his or her evaluations that
were considered by a workers’ compensation administrative law
judge at a contested hearing rejected by the workers’ compensation
administrative law judge or the appeals board pursuant to this
section during the most recent two-year period during which the
physician served as a qualified medical evaluator. If the workers’
compensation administrative law judge or the appeals board rejects
the qualified medical evaluator’s report on the basis that it fails to
meet the minimum standards for those reports established by the
administrative director or the appeals board, the workers’
compensation administrative law judge or the appeals board, as
the case may be, shall make a specific finding to that effect, and
shall give notice to the medical evaluator and to the administrative
director. Any rejection shall not be counted as one of the five
qualifying rejections until the specific finding has become final
and time for appeal has expired.

(C) Has completed within the previous 24 months at least 12
hours of continuing education in impairment evaluation or workers’
compensation-related medical dispute evaluation approved by the
administrative director.

(D) Has not been terminated, suspended, placed on probation,
or otherwise disciplined by the administrative director during his
or her most recent term as a qualified medical evaluator.

(2) If the evaluator does not meet any one of these criteria, the
administrative director may in his or her discretion reappoint or
deny reappointment according to regulations adopted by the
administrative director. A physician who does not currently meet
the requirements for initial appointment or who has been terminated
under subdivision (e) because his or her license has been revoked
or terminated by the licensing authority shall not be reappointed.

(e) The administrative director may, in his or her discretion,
suspend or terminate a qualified medical evaluator during his or
her term of appointment without a hearing as provided under
subdivision (k) or (l) whenever either of the following conditions
occurs:

(1) The evaluator’s license to practice in California has been
suspended by the relevant licensing authority so as to preclude
practice, or has been revoked or terminated by the licensing
authority.

(2) The evaluator has failed to timely pay the fee required by
the administrative director pursuant to subdivision (n).

(f) The administrative director shall furnish a physician, upon
request, with a written statement of its reasons for termination of,
or for denying appointment or reappointment as, a qualified
medical evaluator. Upon receipt of a specific response to the
statement of reasons, the administrative director shall review his
or her decision not to appoint or reappoint the physician or to
terminate the physician and shall notify the physician of its final
decision within 60 days after receipt of the physician’s response.

(g) The administrative director shall establish agreements with
qualified medical evaluators to ensure the expeditious evaluation
of cases assigned to them for comprehensive medical evaluations.

(h) (1) When requested by an employee or employer pursuant
to Section 4062.1, the medical director appointed pursuant to
Section 122 shall assign three-member panels of qualified medical
evaluators within five working days after receiving a request for
a panel. Preference in assigning panels shall be given to cases in
which the employee is not represented. If a panel is not assigned
within 20 working days, the employee shall have the right to obtain
a medical evaluation from any qualified medical evaluator of his
or her choice within a reasonable geographic area. The medical
director shall use a random selection method for assigning panels
of qualified medical evaluators. The medical director shall select
evaluators who are specialists of the type requested by the
employee. The medical director shall advise the employee that he
or she should consult with his or her treating physician prior to
deciding which type of specialist to request.

(2) The administrative director shall promulgate a form that
shall notify the employee of the physicians selected for his or her
panel after a request has been made pursuant to Section 4062.1 or
4062.2. The form shall include, for each physician on the panel,
the physician’s name, address, telephone number, specialty, number
of years in practice, and a brief description of his or her education
and training, and shall advise the employee that he or she is entitled
to receive transportation expenses and temporary disability for
each day necessary for the examination. The form shall also state
in a clear and conspicuous location and type:

“You have the right to consult with an information and assistance
officer at no cost to you prior to selecting the doctor to prepare
your evaluation, or you may consult with an attorney. If your claim
eventually goes to court, the workers’ compensation administrative
law judge will consider the evaluation prepared by the doctor you
select to decide your claim.”

(3) When compiling the list of evaluators from which to select
randomly, the medical director shall include all qualified medical
evaluators who meet all of the following criteria:

(A) He or she does not have a conflict of interest in the case, as
defined by regulations adopted pursuant to subdivision (o).

(B) He or she is certified by the administrative director to
evaluate in an appropriate specialty and at locations within the
general geographic area of the employee’s residence. An evaluator
shall not conduct qualified medical evaluations at more than 10
locations.

(C) He or she has not been suspended or terminated as a
qualified medical evaluator for failure to pay the fee required by
the administrative director pursuant to subdivision (n) or for any
other reason.

(4) When the medical director determines that an employee has
requested an evaluation by a type of specialist that is appropriate
for the employee’s injury, but there are not enough qualified
medical evaluators of that type within the general geographic area
of the employee’s residence to establish a three-member panel,
the medical director shall include sufficient qualified medical
evaluators from other geographic areas and the employer shall pay
all necessary travel costs incurred in the event the employee selects
an evaluator from another geographic area.

(i) The medical director appointed pursuant to Section 122 shall
continuously review the quality of comprehensive medical
evaluations and reports prepared by agreed and qualified medical
evaluators and the timeliness with which evaluation reports are
prepared and submitted. The review shall include, but not be
limited to, a review of a random sample of reports submitted to
the division, and a review of all reports alleged to be inaccurate
or incomplete by a party to a case for which the evaluation was
prepared. The medical director shall submit to the administrative
director an annual report summarizing the results of the continuous
review of medical evaluations and reports prepared by agreed and
qualified medical evaluators and make recommendations for the
improvement of the system of medical evaluations and
determinations.

(j) After public hearing pursuant to Section 5307.3, the
administrative director shall adopt regulations concerning the
following issues:

(1) (A) Standards governing the timeframes within which
medical evaluations shall be prepared and submitted by agreed
and qualified medical evaluators. Except as provided in this
subdivision, the timeframe for initial medical evaluations to be
prepared and submitted shall be no more than 30 days after the
evaluator has seen the employee or otherwise commenced the
medical evaluation procedure. The administrative director shall
develop regulations governing the provision of extensions of the
30-day period in both of the following cases:

(i) When the evaluator has not received test results or consulting
physician’s evaluations in time to meet the 30-day deadline.

(ii) To extend the 30-day period by not more than 15 days when
the failure to meet the 30-day deadline was for good cause.

(B) For purposes of subparagraph (A), “good cause” means any
of the following:

(i) Medical emergencies of the evaluator or evaluator’s family.

(ii) Death in the evaluator’s family.

(iii) Natural disasters or other community catastrophes that
interrupt the operation of the evaluator’s business.

(C) The administrative director shall develop timeframes
governing availability of qualified medical evaluators for
unrepresented employees under Section 4062.1. These timeframes
shall give the employee the right to the addition of a new evaluator
to his or her panel, selected at random, for each evaluator not
available to see the employee within a specified period of time,
but shall also permit the employee to waive this right for a specified
period of time thereafter.

(2) Procedures to be followed by all physicians in evaluating
the existence and extent of permanent impairment and limitations
resulting from an injury in a manner consistent with Sections 4660
and 4660.1.

(3) Procedures governing the determination of any disputed
medical treatment issues in a manner consistent with Section
5307.27.

(4) Procedures to be used in determining the compensability of
psychiatric injury. The procedures shall be in accordance with
Section 3208.3 and shall require that the diagnosis of a mental
disorder be expressed using the terminology and criteria of the
American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, Third Edition-Revised, or the
terminology and diagnostic criteria of other psychiatric diagnostic
manuals generally approved and accepted nationally by
practitioners in the field of psychiatric medicine.

(5) Guidelines for the range of time normally required to perform
the following:

(A) A medical-legal evaluation that has not been defined and
valued pursuant to Section 5307.6. The guidelines shall establish
minimum times for patient contact in the conduct of the
evaluations, and shall be consistent with regulations adopted
pursuant to Section 5307.6.

(B) Any treatment procedures that have not been defined and
valued pursuant to Section 5307.1.

(C) Any other evaluation procedure requested by the Insurance
Commissioner, or deemed appropriate by the administrative
director.

(6) Any additional medical or professional standards that a
medical evaluator shall meet as a condition of appointment,
reappointment, or maintenance in the status of a medical evaluator.

(k) (1) Except as provided in this subdivision, the administrative
director may, in his or her discretion, suspend or terminate the
privilege of a physician to serve as a qualified medical evaluator
if the administrative director, after hearing pursuant to subdivision
(l), determines, based on substantial evidence, that a qualified
medical evaluator:

(A) Has violated any material statutory or administrative duty.

(B) Has failed to follow the medical procedures or qualifications
established pursuant to paragraph (2), (3), (4), or (5) of subdivision
(j).

(C) Has failed to comply with the timeframe standards
established pursuant to subdivision (j).

(D) Has failed to meet the requirements of subdivision (b) or
(c).

(E) Has prepared medical-legal evaluations that fail to meet the
minimum standards for those reports established by the
administrative director or the appeals board.

(F) Has made material misrepresentations or false statements
in an application for appointment or reappointment as a qualified
medical evaluator.

(2) A hearing shall not be required prior to the suspension or
termination of a physician’s privilege to serve as a qualified
medical evaluator when the physician has done either of the
following:

(A) Failed to timely pay the fee required pursuant to subdivision
(n).

(B) Had his or her license to practice in California suspended
by the relevant licensing authority so as to preclude practice, or
had the license revoked or terminated by the licensing authority.

(l) The administrative director shall cite the qualified medical
evaluator for a violation listed in subdivision (k) and shall set a
hearing on the alleged violation within 30 days of service of the
citation on the qualified medical evaluator. In addition to the
authority to terminate or suspend the qualified medical evaluator
upon finding a violation listed in subdivision (k), the administrative
director may, in his or her discretion, place a qualified medical
evaluator on probation subject to appropriate conditions, including
ordering continuing education or training. The administrative
director shall report to the appropriate licensing board the name
of any qualified medical evaluator who is disciplined pursuant to
this subdivision.

(m) The administrative director shall terminate from the list of
medical evaluators any physician where licensure has been
terminated by the relevant licensing board, or who has been
convicted of a misdemeanor or felony related to the conduct of his
or her medical practice, or of a crime of moral turpitude. The
administrative director shall suspend or terminate as a medical
evaluator any physician who has been suspended or placed on
probation by the relevant licensing board. If a physician is
suspended or terminated as a qualified medical evaluator under
this subdivision, a report prepared by the physician that is not
complete, signed, and furnished to one or more of the parties prior
to the date of conviction or action of the licensing board, whichever
is earlier, shall not be admissible in any proceeding before the
appeals board nor shall there be any liability for payment for the
report and any expense incurred by the physician in connection
with the report.

(n) A qualified medical evaluator shall pay a fee, as determined
by the administrative director, for appointment or reappointment.
These fees shall be based on a sliding scale as established by the
administrative director. All revenues from fees paid under this
subdivision shall be deposited into the Workers’ Compensation
Administration Revolving Fund and are available for expenditure
upon appropriation by the Legislature, and shall not be used by
any other department or agency or for any purpose other than
administration of the programs of the Division of Workers’
Compensation related to the provision of medical treatment to
injured employees.

(o) An evaluator shall not request or accept any compensation
or other thing of value from any source that does or could create
a conflict with his or her duties as an evaluator under this code.
The administrative director, after consultation with the Commission
on Health and Safety and Workers’ Compensation, shall adopt
regulations to implement this subdivision.

SEC. 3.  

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

The Administrative Director of the Division of Workers’
Compensation recently abolished the recognition of
neuropsychologists as qualified medical evaluators in the workers’
compensation system based on the division’s interpretation of
Section 139.2 of the Labor Code. In order to permit injured workers
to continue to receive medical-legal evaluation services from
neuropsychologists in appropriate cases and at the earliest possible
time, it is necessary for this act to take effect immediately.