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. Anew emergency regulation became effective Jan. 18, 2022 and will expire on July 19, 2022 with two possible 90 day extensions.

The emergency regulation is intended to reduce physician and injured workers exposure to the COVID-19 virus, reduce the use of personal protective equipment and allow injured workers and physicians flexibility in evaluation site locations which will help injured workers and employers continue to move their workers’ compensation claims towards a resolution.

Telehealth Evaluations

Emergency CCR 46.3 provides that during the period it is in effect, a QME, AME, or other medical-legal evaluation may be performed in the circumstance where the physician and the injured worker are not in the same physical space or site during the evaluation. In those cases, the evaluation must be performed by way of telehealth through the use of electronic means of creating a virtual meeting between the physician and the injured worker. "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 through telehealth when a hands on physical examination is not necessary and all of the following conditions are met:

1. 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.
2. There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer and the evaluator.
3. The telehealth visit is consistent with appropriate and ethical medical practices, as determined by the QME and the relevant medical licensing board.
4. 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. But 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 may 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. It instead provides that the QME must 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 there is agreement by the parties. It allows any subsequent evaluation appointments to be performed at another medical office of the selected QME if it is 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 will be deemed the site of the telehealth evaluation. For all other telehealth evaluations, the medical office of the physician that is within a reasonable geographic distance from the injured worker’s residence will be 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. However, it was later 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 provides that electronic service may be performed directly by the physician or by an agent of the physician, or through an electronic service provider. But, it allows electronic service of a medical-legal report, but only where 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 for the purpose of receiving 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 Also

• Remote Depositions

References

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