Paul: The Home Health Care Burden

Monday, March 28, 2016 | 0

Many of us have experienced that gut-wrenching moment of receiving an out-of-the-blue demand for reimbursement of hundreds of thousands of dollars for home health care. I was recently presented with such a demand, and as is often the case, the demand was accompanied with little to no proof or explanation. So, what is the injured worker’s burden of proof for home health care services?

Jeremiah L. Paul

As a part of Senate Bill 863, the California Legislature enacted Labor Code Sections 4600(h), 4603.2(b)(1), and 5307.8, in an attempt to reign in out-of-control home health care costs. In the en banc decision of Hernandez v. Geneva Staffing, (2014) 79 CCC 682, the Workers' Compensation Appeals Board clarified the applicant’s new burden of proof.

As an initial matter, the WCAB confirmed that the SB 863 changes apply to requests for home health care services in all cases that are not final regardless of date or injury or dates of service. Therefore, the WCAB identified two conditions that are a part of the injured worker’s burden of proof. First, the home health care services must be prescribed by a physician. Second, the employer’s liability is subject to either Section 5307.1 (which is not applicable as there is not yet an Official Medical Fee Schedule for home health care) or Section 5307.8.

As far as the requirement that there be a doctor's prescription, it is fairly straightforward to determine whether services were prescribed by a “physician.” The appeals board determined a physician was either a M.D. or a D.O.

It is more difficult to define a “prescription.” The Labor Code does not define the word prescription. Instead, the WCAB borrowed from the Business and Professions Code to conclude that a prescription is either “an oral order for a patient or, a written order identifying the patient, with the date, the name and address of the prescriber, and the signature of the physician.” If the prescription is oral, it must be communicated directly from the physician to the employer. However, a written prescription may be relayed through another source, such as the injured worker.

A prescription does not need to take a particular form and does not require detailed description of the recommended services. “[B]y itself, a prescription is not ‘proof’ of what are reasonable and necessary home health care services.” The applicant still bears that burden.

In addition to impacting the applicant’s burden of proof, 4600(h) limits retroactive claims. The last sentence of 4600(h) limits the employer’s liability to only 14 days prior to the employer’s receipt of the physician’s prescription. In other words, an applicant is barred from obtaining a prescription years after the date of injury and then claiming home health care services were necessary all along.

Importantly, the appeals board found it is the injured worker’s burden to prove that the prescription was received by the employer and the date on which it was received. Since the employer’s liability is limited to the 14 days proceeding the date it receives the prescription, proving the date received is essential.

Section 5307.8 requires the administrative director to establish a fee schedule for home health care services, which has not yet happened. The appeals board found that the absence of a fee schedule does not absolve applicant of the requirement to “demonstrate a reasonable hourly rate for the type of services provided and the number of reasonably required hours based on substantial evidence.” This provision goes hand in hand with Section 4603.2(b)(1), which requires a home health care provider to submit an itemization of services provided, the charge for each service, the prescription, all reports showing the service, and evidence of authorization for the services.

Section 5307.8 also added a limitation as to what types of services are compensable. “No fees shall be provided for any services, including any services provided by a family member of the employee’s household, to the extent the services had been regularly performed in the same manner and to the same degree prior to the injury.” This was enacted to prevent family members from being compensated for doing the same work they would have done, even without the injury.

Though the WCAB confirmed it is applicant’s burden to prove entitlement to home health care services, it also warned that the defendant still has a duty to conduct a reasonable and good faith investigation to determine whether benefits are due. Specifically, identified scenarios in which a prescription is unclear as to the need for home health care or when the employer receives notice of the need for services from a different source. Under LC 4600, the employer still has a duty to investigate the need for treatment.

In summary, the days of receiving huge home health care bills out of the blue are over. Similarly, the era of family members getting paid to do what they would have done anyway is over. Enjoy! But don’t forget to investigate the need for home health care treatment whenever put on notice of a possible need.

Jeremiah L. Paul is an associate attorney at Bradford & Barthel’s Fresno location. This column was reprinted with permission from the B&B Blog.