Bill Text: CA AB1687 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Workers' compensation.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2012-09-28 - Consideration of Governor's veto pending. [AB1687 Detail]

Download: California-2011-AB1687-Amended.html

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BILL NUMBER: AB 1687	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 12, 2012

INTRODUCED BY   Assembly Member Fong

                        FEBRUARY 14, 2012

   An act to amend Section 4610 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.
   Existing law establishes a workers' compensation system 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.
   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
 . 
   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 in connection with the
enforcement of a medical award following a dispute that arises in the
course of the utilization review process. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  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.

   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, the appeals
board may award attorney's fees reasonably incurred by the applicant
in connection with enforcement of the award.