Workers Comp Zone


The DWC has posted on its website the RAND Corporations’s study on home health care in workers’ compensation.

The study, titled “Home Health Care for California’s Injured Workers: Options for Implementing a Fee Schedule” can be found here:

SB 863 added Labor Code 5307.1(a)(1) which requires the DWC adopt a home health services fee schedule. Over two years after the enactment of those provisions there is still no fee schedule.

Some severely injured workers are having trouble getting home health care authorized.

Here’s an example.

In my practice at Boxer & Gerson LLP,  I represented a worker who lived alone and was mostly wheelchair and wheeled walker bound. In addition, the worker has depression and some paranoid episodes . There was grave concern about her ability to take care of herself in her own home and whether she was safe, particularly at night. For around a decade the insurer had provided 24- hour home attendants.

Nevertheless, after SB 863 was enacted, the defendant obtained a UR denial of attendant care. The reason? A citation to flimsy MTUS standards that say:

Recommended only for otherwise recommended medical treatment for patients who are homebound, on a part-time or “intermittent” basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed. (CMS, 2004)

The case pending at the California Court of Appeal First District, Frances Stevens v. Outspoken Enterprises, involves similar home care denial issues by UR and IMR.

Some attorneys wonder whether some ancillary services are in fact really medical treatment for which the MTUS, UR & IMR system applies. This runs counter to years of case law where many ancillary items were found to be medical treatment. And in any event, Labor Code 4600(h) references home health services as medical treatment.

An en banc WCAB decision in Roque Neri Hernandez v. Geneva Staffing (2014) 79 CCC 682 does not address the issue of the MTUS home care language outlined above. Neri Hernandez focuses on the need for a prescription and what triggers liability for services.

So while many workers are having trouble accessing home care services in the first place, the DWC is finally getting around to the process of coming up with a schedule to figure out when and how providers should be paid.

The study by Barbara O. Wynn and Anne Boustead of RAND surveys home health care services under Medicare, In-Home Spport Services, Medi-Cal, OWCP and the VA as well as under legislatively mandated systems in other states.

We are some ways away from seeing any specific fee schedule adopted. The next step will be a March 3, 2015 public meeting held in Oakland (10 a.m. to noon) to discuss the home health services fee topic. The notice of the meeting says that public input is invited “regarding issues including assessing the need for home health services, service provider requirements, fee amounts, and billing codes.”

As with all post SB 863 regulatory issues, major stakeholders will weigh in with their perspectives.

Although lengthy, here is RAND’s summary of its recommendations:

The task that DWC faces in establishing a fee schedule for home health services that meets the requirements imposed by the Labor Code is difficult. Weaving multiple fee schedules into a single integrated fee schedule is challenging in itself and is further complicated by the absence of data on the volume and cost of different types of home services and caregivers providing services to injured workers. In this report, we have concentrated on identifying options that would result in a single fee schedule covering the full range of home health services furnished to injured workers and have identified a number of options that could be considered. We have developed three sets of recommendations.

The first set deals with policies and activities that should be undertaken regardless of the actions of the other sets of recommendations. The second set pertains to implementing a single integrated fee schedule that would draw on three existing fee schedules: Medicare, IHSS, and the OWCP. These recommendations are based on a straightforward reading of the Labor Code requirements for a home health fee schedule under current law and are being made at the request of DWC. Because we are concerned by the complexities raised by this type of fee schedule and the adequacies of both the Medicare per visit allowances and the IHSS allowances, we have also developed a third set of recommendations based on implementing an OWCP-based fee schedule, at least with respect to skilled home health services that would not otherwise be covered under IHSS. We believe that this fee schedule is more likely to accurately match the allowances with the services needed by injured workers, is less prone to payment disputes and potential abuse, and is administratively less complex. DWC has authority under Labor Code Section 5307.1(b) to establish different payment parameters from those used in the Medicare payment system to make sure that the OMFS allowances are adequate to ensure a reasonable standard of services and care for injured workers as long as the estimated aggregate fees do not exceed 120 percent of the amounts payable in the relevant Medicare payment system for comparable services in the relevant Medicare payment system. Arguably, the DWC might conclude that this provides sufficient authority to adopt the OWCP fee schedule with appropriate modifications to keep within the 120 percent limitation on aggregate fees with respect to intermittent or part-time services covered by Medicare. “

I’ll be covering the March hearings.

You can subscribe to the blog by using the box on the right column.

Julius Young