New Challenges in Home Health Care

Monday, August 4, 2014 | 0

At the time Senate Bill 863 was enacted on Jan. 1, 2013, Labor Code §4600(h) was incorporated, allowing reimbursement of home health care services as medical treatment. Despite its categorization of home health care services as medical treatment, §4600(h) limits an employer’s duty to provide that treatment by imposing additional conditions which are part of an injured worker’s burden of proof. On June 12, 2014, the Workers' Compensation Appeals Board, sitting en banc, issued the first Opinion and Decision clarifying the recently enacted home health care statutes. In Roque Nerti Hernandez v. Geneva Staffing, Inc., the WCAB held that Labor Code §§4600(h), 4603.2(b)(1) and 5307.7 apply to requests for home health care services in all cases in which no final decision on the request had issued before Jan. 1, 2013. The WCAB also clarified what steps an applicant must take to establish the burden of proof that the home health care services are reasonable and necessary and how to seek reimbursement for those services.

Overall, this is excellent news. Many applicants’ attorneys were arguing that the new home health statutes applied only to new dates of injury or requests after the date of the statute. The holding in the instant case says otherwise. Therefore, regardless of the date of injury, the prescription for home health services is required and defendants are only liable starting 14 days before that prescription. Applicants can no longer demand retroactive reimbursement back months, or even years, for self procured home health care if there is no prescription.

Despite this excellent news, there are a few significant issues raised by this holding. First, it is true that home health care services must be prescribed by a physician. On the other hand, §4600(h) does not specify how an employer must receive the prescription before it may become liable for care and does not require that the prescription be submitted by an injured worker. In the Hernandez decision, the WCAB held that the prescription required by §4600(h) can be an oral referral, recommendation or order for home health care services or, a signed and dated written referral, recommendation or order by a physician. For an employer to “receive” an oral prescription, the communication can only be made directly to
the employer or the employer’s agent. With respect to an oral prescription, §4600(h) only allows prescriptions for home health care services by a licensed physician or licensed osteopath, so that a prescription by any other practitioner as defined by §3209.3(a) would not meet the requirements of §4600(h) unless adopted and incorporated by a licensed physician or licensed osteopath.

An oral prescription or referral is going to be the significant problem. Why? It says an “employer’s agent.” But that isn’t clearly defined. So, it could mean not just the claims personnel, but also a claims assigned nurse case manager. It seems defendants will have to stay on top of the conversations with the doctor’s office to avoid problems.
The case further clarifies that an employer’s liability for home healthcare services is subject to an official medical fee schedule pursuant to either §5307.1 or §5307.8. Of course, no schedule has been adopted for home care services at this time. Therefore, in order to meet the burden for reimbursement, a service provider must submit substantial evidence of the reasonably required number of hours and a reasonable rate of reimbursement.

Section 5307.8 requires that an applicant show that the home health care services at issue had not been “regularly performed in the same manner and to the same degree prior to the date of injury.” The section also contains a provision allowing an injured worker to seek attorney’s fees and/or an award of future medical care in the form of home health care. This part of the holding is especially important to the spousal claims for reimbursement and could mean significant, additional litigation. Costs are anticipated to increase for expert opinions on the “reasonable value” argument and probable additional depositions of the spouses or other family members, though the overall amount paid for these services will be reduced.

Ultimately, defendants need to be aggressively aware of the prescriptions and avoid the expedited hearings that are anticipated for failure to do so. The defendants also need to re-evaluate how to address Utilization Review with these oral prescriptions that seem to start the clock ticking on the time limits. As for the reasonable value for services, once the fee schedule issues, this portion of the dispute will resolve. Until then, Defendants need to be prepared for additional litigation on the issue as it relates to costs for properly prescribed services.

Lori Nigam and Valerie Smith are attorneys in the San Jose office of Grancell, Stander, Reubens, Thomas and Kinsey. This column was reprinted with the firm's permission from its quarterly newsletter.