Amended in Senate April 6, 2015

Senate Bill No. 522

Introduced by Senator Mendoza

February 26, 2015

An act to amend Section begin delete 139.45 end delete begin insert 4616.4 end insert of the Labor Code, relating to workers’ compensation.

LEGISLATIVE COUNSEL’S DIGEST

SB 522, as amended, Mendoza. Workers’ compensation: advertisements.

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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 authorizes an insurer, employer, or entity that provides physician network services to establish or modify a medical provider network for the provision of medical treatment to injured employees, and requires the administrative director to contract with individual physicians or an independent medical review organization to perform independent medical reviews.

end insert begin insert

This bill would clarify that those independent medical reviews are medical provider network independent medical reviews. The bill would make conforming changes.

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Existing law establishes a workers’ 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 requires the administrative director to promulgate regulations regarding advertisements relating to workers’ compensation, and requires the administrative director to take particular care to preclude any advertisements with respect to industrial injuries or illnesses that are false or that mislead the public with respect to workers’ compensation.

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This bill would make technical, nonsubstantive changes to these provisions.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 4616.4 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

4616.4.  

(a) (1) The administrative director shall contract with
individual physicians, as described in paragraph (2), or an
independent medical review organization to perform begin insert medical
provider network (MPN) end insert independent medical reviews pursuant
to this section.

(2) Only physicians licensed pursuant to Chapter 5 (commencing
with Section 2000) of the Business and Professions Code may be
independent medical reviewers.

(3) The administrative director shall ensure that the independent
medical reviewers or those within the review organization shall
do all of the following:

(A) Be appropriately credentialed and privileged.

(B) Ensure that the reviews provided by the medical
professionals are timely, clear, and credible, and that reviews are
monitored for quality on an ongoing basis.

(C) Ensure that the method of selecting medical professionals
for individual cases achieves a fair and impartial panel of medical
professionals who are qualified to render recommendations
regarding the clinical conditions consistent with the medical
utilization schedule established pursuant to Section 5307.27, or
the American College of Occupational and Environmental
Medicine’s Occupational Medicine Practice Guidelines.

(D) Ensure that confidentiality of medical records and the review
materials, consistent with the requirements of this section and
applicable state and federal law.

(E) Ensure the independence of the medical professionals
retained to perform the reviews through conflict-of-interest policies
and prohibitions, and ensure adequate screening for conflicts of
interest.

(4) Medical professionals selected by the administrative director
or the independent medical review organizations to review medical
treatment decisions shall be physicians, as specified in paragraph
(2) of subdivision (a), who meet the following minimum
requirements:

(A) The medical professional shall be a clinician knowledgeable
in the treatment of the employee’s medical condition,
knowledgeable about the proposed treatment, and familiar with
guidelines and protocols in the area of treatment under review.

(B) Notwithstanding any other provision of law, the medical
professional shall hold a nonrestricted license in any state of the
United States, and for physicians, a current certification by a
recognized American medical specialty board in the area or areas
appropriate to the condition or treatment under review.

(C) The medical professional shall have no history of
disciplinary action or sanctions, including, but not limited to, loss
of staff privileges or participation restrictions taken or pending by
any hospital, government, or regulatory body.

(b) If, after the third physician’s opinion, the treatment or
diagnostic service remains disputed, the injured employee may
request begin insert MPN end insert independent medical review regarding the disputed
treatment or diagnostic service still in dispute after the third
physician’s opinion in accordance with Section 4616.3. The
standard to be utilized for begin insert MPN end insert independent medical review is
identical to that contained in the medical treatment utilization
schedule established in Section 5307.27, or the American College
of Occupational and Environmental Medicine’s Occupational
Medicine Practice Guidelines, as appropriate.

(c) Applications for begin insert MPN end insert independent medical review shall be
submitted to the administrative director on a one-page form
provided by the administrative director entitled begin delete “Independent end delete
begin insert “MPN Independent end insert Medical Review Application.” The form shall
contain a signed release from the injured employee, or a person
authorized pursuant to law to act on behalf of the injured employee,
authorizing the release of medical and treatment information. The
injured employee may provide any relevant material or
documentation with the application. The administrative director
or the independent medical review organization shall assign the
independent medical reviewer.

(d) Following receipt of the application for begin insert MPN end insert independent
medical review, the employer or insurer shall provide the
independent medical reviewer, assigned pursuant to subdivision
(c), with all information that was considered in relation to the
disputed treatment or diagnostic service, including both of the
following:

(1) A copy of all correspondence from, and received by, any
treating physician who provided a treatment or diagnostic service
to the injured employee in connection with the injury.

(2) A complete and legible copy of all medical records and other
information used by the physicians in making a decision regarding
the disputed treatment or diagnostic service.

(e) Upon receipt of information and documents related to the
application for begin insert MPN end insert independent medical review, the independent
medical reviewer shall conduct a physical examination of the
injured employee at the employee’s discretion. The reviewer may
order any diagnostic tests necessary to make his or her
determination regarding medical treatment. Utilizing the medical
treatment utilization schedule established pursuant to Section
5307.27, or the American College of Occupational and
Environmental Medicine’s Occupational Medicine Practice
Guidelines, as appropriate, and taking into account any reports
and information provided, the reviewer shall determine whether
the disputed health care service was consistent with Section
5307.27 or the American College of Occupational and
Environmental Medicine’s Occupational Medicine Practice
Guidelines based on the specific medical needs of the injured
employee.

(f) The independent medical reviewer shall issue a report to the
administrative director, in writing, and in layperson’s terms to the
maximum extent practicable, containing his or her analysis and
determination whether the disputed health care service was
consistent with the medical treatment utilization schedule
established pursuant to Section 5307.27, or the American College
of Occupational and Environmental Medicine’s Occupational
Medicine Practice Guidelines, as appropriate, within 30 days of
the examination of the injured employee, or within less time as
prescribed by the administrative director. If the disputed health
care service has not been provided and the independent medical
reviewer certifies in writing that an imminent and serious threat
to the health of the injured 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
injured employee, the report shall be expedited and rendered within
three days of the examination by the independent medical reviewer.
Subject to the approval of the administrative director, the deadlines
for analyses and determinations involving both regular and
expedited reviews may be extended by the administrative director
for up to three days in extraordinary circumstances or for good
cause.

(g) The independent medical reviewer’s analysis shall cite the
injured employee’s medical condition, the relevant documents in
the record, and the relevant findings associated with the documents
or any other information submitted to the reviewer in order to
support the determination.

(h) The administrative director shall immediately adopt the
determination of the independent medical reviewer, and shall
promptly issue a written decision to the parties.

(i) If the determination of the independent medical reviewer
finds that the disputed treatment or diagnostic service is consistent
with Section 5307.27 or the American College of Occupational
and Environmental Medicine’s Occupational Medicine Practice
Guidelines, the injured employee may seek the disputed treatment
or diagnostic service from a physician of his or her choice from
within or outside the medical provider network. Treatment outside
the medical provider network shall be provided consistent with
Section 5307.27 or the American College of Occupational and
Environmental Medicine’s Occupational Practice Guidelines. The
employer shall be liable for the cost of any approved medical
treatment in accordance with Section 5307.1 or 5307.11.

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SECTION 1.  

Section 139.45 of the Labor Code is amended to
read:

139.45.  

(a) In promulgating regulations pursuant to Sections
139.4 and 139.43, the administrative director shall take particular
care to preclude any advertisements with respect to industrial
injuries or illnesses that are false or that mislead the public with
respect to workers’ compensation. In promulgating rules with
respect to advertising, the State Bar of California and physician
licensing boards shall also take particular care to achieve the same
goal.

(b) For purposes of subdivision (a), false or misleading
advertisements shall include advertisements that do any of the
following:

(1) Contain an untrue statement.

(2) Contain any matter, or present or arrange any matter in a
manner or format that is false, deceptive, or that tends to confuse,
deceive, or mislead.

(3) Omit any fact necessary to make the statement made, in the
light of the circumstances under which the statement is made, not
misleading.

(4) Are transmitted in any manner that involves coercion, duress,
compulsion, intimidation, threats, or vexatious or harassing
conduct.

(5) Entice a person to respond by the offering of any
consideration, including a good or service but excluding free
medical evaluations or treatment, that would be provided either at
no charge or for less than market value. A free medical evaluation
or treatment shall not be offered for the purpose of defrauding any
entity.

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