California: What Constitutes a Prescription for Home Health Care Services?

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Prior to 2013, there may not have been a more controversial issue than home health care. Home health care could become an extraordinarily expensive benefit for a defendant in a workers’ compensation case. The math bears this out. If a defendant was paying an injured employee’s spouse to provide 24 hour care, 7 days a week, assuming an hourly rate of $20.00 per hour, the annual cost of this care could exceed $170,000. The numbers were much more significant when dealing with cases where the alleged home health care went back several years.

Senate Bill 863 drastically changed the home health care benefit. Specifically, Labor Code Section 4600(h) required that there be a prescription for these services by a licensed physician and that the retroactive benefit could only reach back to 14 days prior to the prescription. Recently, in Pacas v. The Mailing House, State Comp. Ins. Fund ADJ258484, a panel of the Workers’ Compensation Appeals Board (WCAB) commissioners addressed the question of whether a physician’s deposition testimony could constitute a prescription under this section. This question was of significance to the extent that until an actual prescription existed, the clock for the retroactive benefits could not start ticking.

In Pacas, it was an Agreed Medical Evaluator (AME) that testified at deposition that home health care was medically necessary. There was a stipulation to submit the treatment question to the AME so the panel did not directly address whether an AME could make a treatment recommendation. In addressing the question of whether the testimony could constitute a prescription, the panel found that the prescription requirement can be either oral or in writing. The panel found that the oral testimony at deposition qualified as an oral prescription.

This case is particularly important to the extent that by finding that such testimony constituted a prescription, not only did the employee satisfy the prescription requirement, but as the defense attorney was present at the deposition, it further satisfied the employee’s burden of proving the defendant’s receipt of the prescription and the actual date of the receipt as well.

In conclusion, while the requirements of Labor Code Section 4600(h) can sometimes be challenging for an employee to meet, this panel case sets forth a fairly straight-forward method for satisfying these requirements. The practitioner should be aware, however, that satisfying the requirements of Labor Code Section 4600(h) is only the first step of the home health care issue. Once these requirements are met, the physician’s recommendation must still meet the criteria set forth in the relevant treatment schedule.

Read the Pacas noteworthy panel decision.

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