Home Health Care–Is the WCAB Creating A Separate Non-UR/IMR Path?

Regarding the WCAB’s en banc decision in the case of Roque Neri Hernandez v. Workforce Outsourcing, Inc.

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The WCAB has issued an en banc decision in the case of Roque Neri Hernandez v. Workforce Outsourcing, Inc.ii In this case, treating physician, Dr. Lee, had made a handwritten note in which he stated that the applicant had been under his care for a severe right hand [crush] injury and that he was also under the “constant care” of his wife. The “note,” which was addressed to “To Whom it May Concern,” and was transmitted by applicant’s attorney, was neither a formal medical report nor was it an RFA. Was it actually a prescription? (The applicant’s wife would testify at expedited hearing that she devoted all of her time to attending to her husband’s needs, including bathing, feeding, dressing, etc.)

At the Expedited Hearing, one of the issues was whether this handwritten note was actually a “prescription” for home health care, as required under Lab C 4600(h). Among other things, the defendant had argued that Dr. Lee’s “note” did not specify the type of care being sought or the number of hours actually required. It was also argued that there was no itemization of the services provided.

It must be noted that here, the defendant did not refer Dr. Lee’s “note” or the request for home health care to UR and therefore the subject of UR and IMR was not before the WCAB. But, this decision has implications, which I will discuss below. First, let’s digest the decision.

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DISCUSSION

This decision is hard to digest as it is very technical, covers a lot of ground and there are unanswered questions, such as “When does the UR process start” and how do we know? I see a lot of mischief here, because if a PTP or secondary PTP calls the examiner, or sends a fax, or sends a report (PR-2), it need not be in any particular “form” or “format,” so long as it covers the minimum for a prescription. And, it can be something which first goes to the applicant’s attorney and is then served on the defendants, so that the attorney transmittal now in effect becomes the “new RFA” for HHC.” For all requests for treatment on or after 7/1/2013, 8 CCR 9792.9.1 mandates the use of the new DWC Form RFA and requires that all requests for medical treatment be in “written form.” So, this decision seems to carve out a special path for HHC, since the request can be “oral” and if “written” it need not be in any form particular form, so the requesting physician can opt not to even use the RFA. But, the UR process would still trigger.

Another question is what if the first notice of the HHC request comes from receipt of a transmittal from applicant’s attorney and they waited 30 days before sending the doctor’s report? The dispute then involves when defendant had notice and in what form. Also, what if the HHC is buried in the hard-to-read handwriting of a physician inside of a PR-2 or even the Doctor’s First Report of Injury?

RECOMMENDATIONS:

• You now need to be more vigilant in reading every medical report, because once you see any reference to the need for HHC, which comes from an M.D., or D.O, you are now off to the UR races and if you intend to protect IMR, you need to have a plan to respond to any request for HHC, in any form or format.

• Since HHC is deemed medical treatment, then it must go through UR, but this will be tricky.

• Your Claim Notes need to be very specific as to when and in what manner you first became aware of HHC requests. These will be important.

• It is suggested that you develop a form letter, or even a “check list request” which demands information from the HHC provider, as to proof of services provided prior to the injury, including those from any member of the applicant’s household, a statement as to hours worked, what was done, and proof of rate per hour.

• How are you going to deploy UR when this case seems to imply that the prescription of the PTP or secondary Doctor need not be specific as to the number of hours needed or the actual services provided? A good place to begin: (1) Direct a letter to the requesting doctor under 8 CCR 9785(f)(7) which DEMANDS SPECIFICS on the HHC treatment plan. Nothing in this decision relieves the PTP from having to explain the plan. Once you get the prescription, it is highly likely (2) The UR Reviewer will need further information from the requesting physician as well, or how could they evaluate the request, or to modify?. If the doctor fails to respond, then this may form the basis for the UR denial. We can’t be hand-tied by a lack of detail or the UR process becomes a farce.

You can be sure that this is going to be a very lively area for applicant attorneys because of the “fee” issue”. Expect more requests for HHC, more DOR’s for Expedited Hearing and collateral challenges to UR/IMR.


i Copyright Ingber & Weinberg, LLP.2014, All rights reserved.
ii ADJ7995806 –filed 6/12/2014. WCAB en banc decisions are binding on all WCAB offices and are therefore citable authority.

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