Remote Medical Treatment Examinations & Medical-Legal Appointments

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REMOTE MEDICAL TREATMENT EXAMINATIONS AND MEDICAL-LEGAL APPOINTMENTS

On March 19, 2020, Gov. Gavin Newsom issued an executive order in response to COVID-19 requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Although health-care providers and hospital personnel are part of the essential workforce, not all medical services are essential. The California Coronavirus (COVID-19) Response website states, "Non-essential medical care like eye exams, teeth cleaning, and elective procedures must/should be cancelled or rescheduled. If possible, health care visits should be done remotely."

Employers generally view all workers' compensation doctors' visits as essential. Medical visits are necessary to determine whether an employee should remain off work, and if not, whether his or her work restrictions can be accommodated. Employers don't want COVID-19 restrictions to extend a worker's disability unnecessarily.

Many employees, in contrast, might feel that such appointments are not essential during the COVID-19 pandemic, particularly if their condition hasn't changed. Even employees who believe that the visits are essential, such as when they must renew a prescription, might fear contracting the coronavirus during a doctor visit.

COVID-19 prompted the Division of Workers' Compensation to issue a Newsline encouraging all parties to consider creative ways to provide care to injured workers. The DWC specifically noted that the increased use of telehealth (also called telemedicine) for medical treatment might be appropriate.

TELEHEALTH FOR MEDICAL TREATMENT APPOINTMENTS

Business and Professions Code § 2290.5(a)(6) defines telehealth as "the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care." Telehealth enables a physician to use video conferencing, video calling or other similar technology to evaluate a patient. The Workers' Compensation Appeals Board has recognized that telehealth services may be used to treat injured workers. For further discussion on the use of telehealth, see "Sullivan on Comp" Section 7.3 Scope of Care –– Applied Cases. For a complete discussion on the timing of medical appointments and required reporting, see "Sullivan on Comp" Section 7.13 Primary Treating Physician.

Normally, before treating via telehealth, a physician must obtain consent from the injured worker. BPC 2290.5(b) states: "[T]he health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented." On April 3, 2020, however, Gov. Newsom issued an executive order suspending the requirement to obtain verbal and written consent before the use of telehealth services.

On April 13, 2020, the DWC adopted changes to the fee schedule to encourage the use of telehealth during the COVID-19 public health emergency. Essentially, the fee schedule was modified for physician services on or after April 15, 2020 to equalize the payment for a service whether provided in a physician’s office or through telehealth using real-time audio and video telecommunications. So the DWC encouraged the use of telehealth by making payment the same regardless of whether the evaluation is conducted in person or via telehealth.

TELEHEALTH FOR MEDICAL-LEGAL EXAMINATIONS

Although telehealth services are permissible for treating an injured worker, normally they are not permitted for medical-legal evaluations. Qualified medical evaluators (QMEs) are required to conduct medical-legal evaluations face-to-face. California Code of Regulations, Title 8, § 49(b) defines "face to face time" as "only that time the evaluator is present with an injured worker." So it seems that QMEs must be physically present for specified time periods during an injured worker's examination, unless a video conference somehow could be seen to meet this definition (see "Sullivan on Comp" Section 14.44 Evaluation Requirements and Rights).

The Division of Workers' Compensation (DWC) noted that the qualified medical evaluator (QME) program in California does not qualify as part of the critical infrastructure workforce under the Healthcare and Public Health Sector guidelines of the U.S. Department of Homeland Security. So the medical-legal services are not exempt from the governor’s stay-at-home order.

QME evaluations, however, serve a vital role in the workers' compensation system. They are needed to resolve disputes regarding injured workers' entitlement to workers' compensation benefits and their ability to return to work.

On March 28, 2020, the DWC issued a Newsline noting that "it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary." At the time, the DWC made a "strong recommendation" regarding how parties should proceed with QME evaluations via telehealth.

On April 24, 2020, the Division of Workers' Compensation (DWC) gave notice that it intends to file two emergency regulations on the medical-legal process. The emergency regulations were drafted to address the ongoing need for medical-legal evaluations and to prevent a backlog resulting from the stay-at-home order. The regulations are intended to help injured workers and employers move their claims toward resolution while still allowing both injured workers and doctors to observe the stay-at-home order.

As discussed below, the proposed medical-legal regulations permit electronic service of medical-legal reports, give QMEs and Agreed Medical Examiners (AMEs) options for conducting and scheduling evaluations, and suspend several rules regarding the time limits for scheduling and complete medical-legal evaluations. Review the regulations at https://www.dir.ca.gov/dwc/DWCPropRegs/2020/QME-Regulations/QME_Regs.htm.

The emergency regulations will be filed with the California Office of Administrative Law (OAL) on May 4, 2020. The OAL has as long as 10 days to consider and approve the emergency rules. On OAL approval and filing with the secretary of state, the regulations will be effective for 180 days. During that period, the DWC may readopt the emergency regulations for an additional 90 days. A notice will be posted on the DWC website when these emergency regulations become effective.

ELECTRONIC SERVICE OF REPORTS

Proposed California Code of Regulations, Title 8, Section 36.7 would allow a QME, AME or other medical-legal report to be served electronically by the physician with the written agreement of the parties. The purpose of the proposed regulation is to enable providers to serve medical-legal reports without requiring them or their staff to go into their office to complete the clerical functions necessary for physically mailing the medical-legal report. For a detailed discussion on the rules for serving medical-legal reports, see "Sullivan on Comp" Section 14.47 Service of Comprehensive Medical-Legal Reports.

When a party consents in writing to electronic service, it must provide its email address. The proposed regulation adds that electronic service is not permitted on any unrepresented party or unrepresented injured worker. So if either the employer or the injured worker is unrepresented, electronic service would not be permitted on that party.

The mandatory Form 122 may be replaced by an affidavit of proof of electronic service for purposes of electronic service of all medical-legal reports. A provider must maintain an original copy of all documents electronically served.

RULES ON EVALUATIONS

Proposed CCR § 78 provides an QME or AME with three options for evaluations during the stay-at-home order. The evaluator may:

1. Reschedule the evaluation until after the stay-at-home order is lifted.
2. Perform an electronic interview followed by physical evaluation after the stay-at-home order is lifted.
3. Perform an evaluations entirely via telehealth under specified conditions.

Rescheduling the Evaluation

The proposed regulation would allow a QME or AME to reschedule an appointment to a date within 90 days after the date that both the statewide stay-at-home order and any similar local order where the injured worker resides or the visit will occur, if applicable, are lifted.

Currently, CCR § 34(e) requires a QME who cancels a scheduled appointment to reschedule for a date within 30 calendar days of the date of cancellation. CCR § 34(f) requires an AME to reschedule a canceled appointment within 60 calendar days of the date of the cancellation unless the parties agree otherwise. These rules are discussed further in "Sullivan on Comp" Section 14.40 Appointments and Cancellations.

Because the current stay-at-home order is indefinite, it's not clear when a QME or AME will be able to evaluate an injured worker. The proposed regulation would prevent a party from using the COVID-19 pandemic as an excuse for a replacement panel.

Electronic Interview Followed by Face-to-Face Evaluation

The QME or AME may issue a record review and electronic interview summary report. The physician initially may interview the injured worker either by telephone or by any form of video conferencing and prepare a report. Once the statewide stay-at-home order and any similar local order where the visit will occur are lifted, the QME may schedule a face-to-face evaluation, provided the necessary precautions are taken. For a discussion on the face-to-face requirements for a medical-legal evaluation, see "Sullivan on Comp" Section 14.44 Evaluation Requirements and Rights.

If a QME or AME chooses this option, he or she must send appropriate notice and information necessary for the injured worker to make the telephone call or initiate the videoconferencing for the appointment. On receipt of the notice of an electronic interview, the parties must provide the evaluator with records at least 10 days before the scheduled appointment. For a discussion on the time limits for providing documents to a QME or AME, see "Sullivan on Comp" Section 14.41 Communications with Agreed Medical Examiner and Qualified Medical Evaluator.

This option enables a QME or AME to continue working and get paid during the stay-at-home order. It also helps the provider avoid a backlog of work after the stay-at-home order is lifted.

Telehealth Evaluation

In addition to the two options above, the proposed regulations establish conditions under which a QME or AME may complete a medical-legal evaluation entirely through telehealth. The proposed regulation defines telehealth as "remote visits via videoconferencing, video-calling, or similar technology that allows each party to see the other via a video connection." So performing a medical-legal evaluation with only an audio phone call would be insufficient.

A medical-legal evaluation without a physical examination may be performed if all of these conditions are met:

1. The injured worker is not required to travel outside of his or her immediate household to undergo the telehealth evaluation.
2. There is a medical issue in dispute that involves whether the injury is AOE/COE, or the physician is asked to address the termination of an injured worker’s indemnity benefit payments, or address a dispute regarding work restrictions.
3. There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the evaluator.
4. The telehealth visit under the circumstances is consistent with appropriate and ethical medical practice, as determined by the evaluator.
5. The evaluator attests that the evaluation does not require a physical exam.

So the proposed regulation requires the parties and the physician to agree to a telehealth evaluation. But it's clear that agreement to such evaluation may not be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied, it may file an objection with the Workers’ Compensation Appeals Board, along with a declaration of readiness to proceed to set the matter for a hearing, including an expedited hearing (see "Sullivan on Comp" Section 15.32 Expedited Hearing).

SUSPENSION OF RULES

Proposed California Code Regulations, Title 8, section 78 also suspends a few rules regarding time limits for scheduling appointments and completing reports.

One, the proposed regulation suspends CCR § 31.3(e), requires a QME evaluation to be scheduled within 60 days of an appointment request. The proposal gives the scheduling party the option of accepting an appointment within 90 days of the request (see "Sullivan on Comp" Section 14.40 Appointments and Cancellations).

The proposed regulation doesn't eliminate the time limit for scheduling an appointment, it just extends it. It requires a QME to schedule an evaluation within 90 days of the date of the appointment request, or allow the requesting party to accept an appointment that is no more than 120 days after the date of the party's initial appointment request.

As discussed above, the proposed regulation permits an evaluator to reschedule a calendared appointment to a date within 90 days after the stay-at-home order is lifted. Any evaluations not currently scheduled would need to be scheduled within the time limits of the proposed regulation. But if the stay-at-home order is not lifted at the time of the examination, it probably could be rescheduled under the proposed regulations. Alternatively, the QME or AME could schedule an electronic interview followed by a face-to-face evaluation or a telehealth evaluation, provided the conditions in the proposed regulation are satisfied.

Two, the proposed regulation would extend all time periods specified in CCR § 38 by 15 days. That regulation generally requires a QME to complete a report within 30 days of the evaluation (unless an extension is requested), and a supplemental report within 60 days of a request (see "Sullivan on Comp" Section 14.42 Timeliness Requirements). So, while the proposed regulation is in effect, a QME would have at least 45 days to complete the initial report and 75 days for a supplemental report.

Finally, the proposed regulation would suspend CCR § 34(b), which requires the first examination to be conducted only at the office listed on the panel selection form. The proposed regulation would permit the examination to be conducted at any office listed with the medical director provided the parties agree. Given that parties could always agree to an evaluation at a different office, this change is not significant.

SEE ALSO

• Remote Depositions

REFERENCES

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