BILL NUMBER: AB 1687 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 6, 2012
AMENDED IN ASSEMBLY MARCH 12, 2012
INTRODUCED BY Assembly Member Fong
FEBRUARY 14, 2012
An act to amend Section 4610 138.4
of, and to add Section 4610.2 to, the Labor Code, relating to workers'
compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1687, as amended, Fong. Workers' compensation:
utilization review. compensation.
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 every employer to establish a utilization review process,
either directly or through its insurer or an entity with which an
employer contracts for these services, for the purpose of reviewing
and approving, modifying, delaying, or denying treatment
recommendations made by physicians with respect to injured workers.
Existing law requires that communications regarding
decisions to approve requests by physicians specify the specific
medical treatment service approved, and that responses regarding
decisions to modify, delay, or deny medical treatment services
requested by physicians 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 the
administrative director, in consultation with the Commission on
Health and Safety and Workers' Compensation, prescribed rules and
regulations for serving notices that contain specified
information on employees .
This bill would additionally require that communications or
responses regarding decisions to modify, delay, or deny medical
treatment services requested by physicians also include a clear and
concise explanation of the available options for objecting to the
modification, delay, or denial of those medical services, to appear
on the first page of the communication in no less than 12-point bold
type so as to be prominently visible to the employee.
This bill would add information regarding objections to decisions
based on utilization reviews to those notices for which rules and
regulations are required to be prescribed.
Under existing law, when a party to a proceeding institutes
proceedings to terminate an award made by the Workers' Compensation
Appeals Board for continuing medical treatment and is unsuccessful in
these proceedings, the appeals board is authorized to award
reasonable attorney's fees to an applicant resisting these
proceedings.
This bill would authorize the appeals board to award attorney's
fees reasonably incurred by an applicant who prevails in a
proceeding in connection with the enforcement of a medical
award following a dispute that arises in the course of the
utilization review process if the applicant employs an attorney
to enforce the award .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 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.
(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 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, 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. Fees shall not 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.
Communications or responses regarding decisions to modify, delay, or
deny medical treatment services requested by physicians also shall
include a clear and concise explanation of the available options for
objecting to the modification, delay, or denial of those medical
services, which shall appear on the first page of the communication
in no less than 12-point bold type so as to be prominently visible to
the employee.
(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.
SECTION 1. Section 138.4 of the Labor
Code is amended to read:
138.4. (a) For the purpose of this section, "claims administrator"
means a self-administered workers' compensation insurer; or a
self-administered self-insured employer; or a self-administered
legally uninsured employer; or a self-administered joint powers
authority; or a third-party claims administrator for an insurer, a
self-insured employer, a legally uninsured employer, or a joint
powers authority.
(b) With respect to injuries resulting in lost time beyond the
employee's work shift at the time of injury or medical treatment
beyond first aid:
(1) If the claims administrator obtains knowledge that the
employer has not provided a claim form or a notice of potential
eligibility for benefits to the employee, it shall provide the form
and notice to the employee within three working days of its knowledge
that the form or notice was not provided.
(2) If the claims administrator cannot determine if the employer
has provided a claim form and notice of potential eligibility for
benefits to the employee, the claims administrator shall provide the
form and notice to the employee within 30 days of the administrator's
date of knowledge of the claim.
(c) The administrative director, in consultation with the
Commission on Health and Safety and Workers' Compensation, shall
prescribe reasonable rules and regulations, including notice of the
right to consult with an attorney, where appropriate, for serving on
the employee (or employee's dependents, in the case of death), the
following:
(1) Notices dealing with the payment, nonpayment, or delay in
payment of temporary disability, permanent disability, supplemental
job displacement, and death benefits.
(2) Notices of any change in the amount or type of benefits being
provided, the termination of benefits, the rejection of any liability
for compensation, and an accounting of benefits paid.
(3) Notices of rights to select the primary treating physician,
written continuity of care policies, requests for a comprehensive
medical evaluation, explanations of the options available to
object to a decision made pursuant to the utilization review process,
as described in Section 4610, to modify, delay, or deny medical
treatment, and offers of regular, modified, or alternative
work.
(d) The administrative director, in consultation with the
Commission on Health and Safety and Workers' Compensation, shall
develop, make fully accessible on the department's Internet Web site,
and make available at district offices informational material
written in plain language that describes the overall workers'
compensation claims process, including the rights and obligations of
employees and employers at every stage of a claim when a notice is
required.
(e) Each notice prescribed by the administrative director shall be
written in plain language, shall reference the informational
material described in subdivision (d) to enable employees to
understand the context of the notices, and shall clearly state the
Internet Web site address and contact information that an employee
may use to access the informational material.
SEC. 2. Section 4610.2 is added to the Labor Code, to read:
4610.2. If an award made by the appeals board specifies the
provision of future medical treatment and a dispute arises in the
course of a utilization review conducted pursuant to Section 4610 in
connection with the enforcement of this award, and the applicant
employs an attorney for purposes of enforcing the award and
prevails , the appeals board may award attorney's fees
reasonably incurred by the applicant in connection with enforcement
of the award.
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