Telemedicine: California’s Telehealth Advancement Act and the Injured Worker

In Oranje v. Crestwood Behavioral Health, 2014 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel affirmed the WCJ’s finding that an applicant who suffered an admitted industrial injury to her left arm, left hand and psyche on 3/14/2010 in California but now lives in Nevada, was entitled to further medical treatment in form of counseling, including “telephonic therapy” with California marriage and family therapist (MFT) Chris Jones.

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The WCAB found that, under the Telehealth Advancement Act of 2011 (Business and Professions Code § 2290.5), telehealth services have broadened in California since the inception of telemedicine in 1996, to include all licensed healthcare professions.

Furthermore, Business and Professions Code §§ 686 and 2290.5 allow California healthcare practitioners to provide “real time” telehealth services from their location (“distant site”) to the location of the patient (“originating site”) even if the patient resides out-of-state.

According to the WCAB, if telehealth services are provided in accordance with Business and Professions Code § 2290.5, California law precludes a health insurer or health care service plan from limiting the type of setting for where and how telehealth services are provided.

The WCAB stated that, contrary to the defendant’s contention, there is no authority for the proposition that a licensed medical health provider located in California, such as MFT Jones, is violating Nevada law when providing telehealth services to an applicant, who is now Nevada resident. Therefore, the WCAB need not determine whether MFT Jones violated Nevada law, as the WCAB’s concern is whether telephonic sessions were consistent with California law as provided in Labor Code § 3600.5(a).

Read the Oranje noteworthy panel decision.

Commentary by Robert G. Rassp, Esq.:

With the advent of technology to include using everything from conventional telephones to videoconferencing, Skype, gotomeeting.com, smart phones, and remote work sites, it is not surprising that a case would eventually emerge where the question arises whether a health care provider can provide health care via the use of electronic devices rather than a face to face examination and treatment session. The general rule is that science is ten years ahead of the law. Fortunately, in this case, the WCAB recognized existing statutory law in the Business and Professions Code and Labor Code § 3600.5(a) that telehealth sessions can occur, are reimburseable, and do not run afoul of HIPAA or the more strict California Medical Information Privacy Act (Civil Code Section 56 et seq.).

Just for the record, the federal government, through its National Institutes of Health, is now funding proprietary studies that focus on cell phone applications for medication adherence, substance abuse counseling sessions, even what is called “Avatar” counseling sessions where the therapist and patients all participate in group therapy via laptop computers and the image of each person is represented by an avatar but the audio feed is real time with real participants. All of these research studies are based on telehealth and can cross state lines.

What is missing from this case is the second most important issue: Will telehealth sessions survive utilization review scrutiny under Labor Code Section 4610? What about IMR under Labor Code Sections 4610.5 and 4610.6? How can a therapist (in this case, a Marriage and Family Counselor and not a psychologist or psychiatrist) justify medical necessity for remote telehealth sessions? The ODG guidelines for mental health treatment (here, a “physical-mental” psychiatric sequelae) require measurable improvement in the patient’s mental health to justify sessions and the number of sessions are limited. In this case, how long will the MFT be allowed to talk to her patient in Nevada and bill for her services? This is the rub about this case. The injured worker may have won the battle but not the war.

We will see more telehealth as the ACA is implemented, especially since the reimbursement rates for physicians are being reduced under Medicare payment guidelines. The typical “follow-up” visit will more likely be via telephone, smart phone application, or laptop/tablet physician to patient encounter. What is good for the ACA will be good for everyone else, even physicians and patients within the workers’ compensation system.

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