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.
On May 27, 2020, the DWC also gave notice that the American College of Occupational and Environmental Medicine (ACOEM) and MDGuidelines have released a Coronavirus (COVID-19) Clinical Practice Guideline. The DWC supports this guidance and plans to adopt and incorporate the ACOEM guideline into the medical treatment utilization schedule (MTUS). But because the evidence-based management of COVID-19 is fluid and evolving, guidelines are published frequently, so the DWC will wait to adopt and incorporate the ACOEM's COVID-19 guideline into the MTUS until the frequency of updates slows to the point at which the formal adoption process can be completed.
In the meantime, treatment recommendations pertaining to COVID-19 should follow the MTUS medical evidence search sequence found in the California Code of Regulations, Title 8, § 9792.21.1. This regulatory sequence requires a search of the most current version of ACOEM guidance and is discussed further in "Sullivan on Comp" Section 7.31 Utilization Review — Medical Treatment Utilization Schedule.
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 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 were 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 May 14, 2020, the Office of Administrative Law approved emergency regulations from the Division of Workers' Compensation (DWC) 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.
The original emergency regulations regarding medical-legal telehealth visits expired on Jan. 11, 2022. A new emergency regulation became effective Jan. 18, 2022. It expires on July 19, 2022, with two possible 90-day extensions.
The emergency regulation aims to: reduce exposure to the corona virus by physicians and injured workers; reduce the use of personal protective equipment; and facilitate workers' compensation claim resolution through more flexibility for employers and workers in evaluation site location.
While it's in effect, emergency CCR 46.3 directs that a QME, AME, or other medical-legal evaluation may be performed even though the physician and the injured worker do not share physical space. In those cases, the telehealth evaluation creates a virtual meeting between the physician and the worker. Per the regulation, "telehealth" is defined as "remote visits via video-conferencing, video-calling, or such similar technology that allows each party to see and converse with the other via a video and audio connection."
A QME or AME may complete a medical-legal evaluation via telehealth when a hands-on physical examination is not necessary and all of these conditions are met:
- A medical issue in dispute 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 a dispute regarding work restrictions.
- There's agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the evaluator.
- The telehealth visit is consistent with appropriate and ethical medical practices as determined by the QME and the relevant medical licensing board.
- The evaluator attests in writing that the evaluation does not require a physical exam.
The evaluation must be conducted with the same standard of care as an in-person visit and must comply with all relevant state and federal privacy laws.
So the regulation generally requires the parties and the physician to agree to a telehealth evaluation. An 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 can file an objection with the appeals board, along with a declaration of readiness to proceed to set the matter for a hearing.
Suspension of Rule
Emergency CCR 46.3 also suspends CCR 34(b), which requires a QME to conduct the first examination only at the office listed on the panel selection form. The emergency regulation directs the QME to schedule an appointment for the first comprehensive medical-legal evaluation at a medical office listed on the panel selection form or any office listed with the medical director, provided the parties agree. It permits any subsequent evaluation appointments to be performed at another medical office of the selected QME if it's listed with the medical director and is within a reasonable geographic distance from the injured worker’s residence.
For purposes of QME telehealth evaluations conducted under the emergency regulation, the medical office listed on the panel selection form for the QME is deemed the site of the telehealth evaluation. For all other telehealth evaluations, the medical office of the physician that's within a reasonable geographic distance from the injured worker’s residence is deemed the site of the telehealth evaluation.
Electronic Service of Medical-Legal Reports
Originally, California Code of Regulations, Title 8, Section 36.7 was adopted as an emergency regulation to allow medical-legal reports to be served electronically. Later, it was adopted on a permanent basis. 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.
CCR 36.7 explains that electronic service may be performed directly by the physician, by an agent of the physician, or through an electronic service provider. It permits electronic service of a medical-legal report, but only if the parties agree and a written confirmation of that agreement is made. At the time of giving consent to electronic service, a party or entity must provide the party’s electronic address to receive electronic service.
The medical-legal report or other papers must be transmitted to an email address maintained by the person or entity on whom it is served, using the most recent address provided to the physician by the party who consented to accept service electronically.
Service is deemed complete at the time of transmission. Any period of notice and any right or duty to act or make any response within any period or on a date certain after service of the document will be extended by two business days.
All the terms of CCR 36 and CCR 36.5 apply except that the reports may be served electronically. Mandatory form 122 may be replaced by an affidavit of proof of electronic service for medical-legal reports. A provider must maintain an original copy of all documents electronically served.
- See https://covid19.ca.gov/stay-home-except-for-essential-needs/.
- See the DWC's Newsline of March 19, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-21.html.
- Oranje v. Crestwood Behavioral Health (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 602.
- The executive order is available at https://www.gov.ca.gov/wp-content/uploads/2020/04/4.3.20-EO-N-43-20-text.pdf.
- See the DWC's Newsline of April 13, 2020 at https://www.dir.ca.gov/DIRNews/2020/2020-31.html.
- See the DWC's Newsline of May 27, 2020 at https://www.dir.ca.gov/DIRNews/2020/2020-46.html.
- See the DWC's Newsline of March 28, 2020 containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-26.html.
- See the DWC's Newsline of Oct. 13, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-90.html.
- See the DIR Newsline dated Jan. 19, 2022: https://www.dir.ca.gov/DIRNews/2022/2022-09.html.
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