California: Clearing the Hurdles of Home Health Care Under SB 863: Neri Hernandez En Banc

On June 12, 2014, the Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Roque Neri Hernandez v. Geneva Staffing, Inc., 79 Cal. Comp. Cases 682, 2014 Cal. Wrk. Comp. LEXIS 77. At issue in Hernandez were the Labor Code provisions enacted as part of Senate Bill 863 that limit an injured workers’ ability to obtain payment for home health care benefits.

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Specifically, the WCAB addressed Labor Code Sections 4600(h), 4603.2(b)(1) and 5307.8. Section 4600(h) essentially states that home health care shall be provided as medical treatment as long as the care is prescribed by a physician. Section 4600(h) further provides that the employer will not be liable for home health care provided more than 14 days prior to the employer’s receipt of the physician’s prescription.

Labor Code Section 4603.2(b)(1) provides that a provider of services, including a home health care provider, shall submit its request for payment with an itemization of services.

Finally, Labor Code Section 5307.8 indicates that the administrative director shall adopt a schedule for payment of home health care services that are not covered by a Medicare fee schedule and are not otherwise covered by the fee schedule adopted pursuant to Section 5307.1. Importantly, this section continues to state that no fees shall be paid to the extent the services had been regularly performed in the same manner and to the same degree prior to the injury. Finally, this Section allows for the recovery of attorney’s fees in the event home health care is awarded.

Background

In Hernandez, applicant suffered a severe crush injury to his right dominant hand.  He had five surgeries and was initially hospitalized for more than three weeks. On November 11, 2011, his treating physician issued a handwritten note essentially saying that since the time of his injury, he has needed constant care from his wife. On November 28, 2011 his attorney served this note on defendant with a request for authorization. Finally, in a November 5, 2012 report, the Agreed Medical Evaluator (AME) indicated that it was reasonable for the applicant to have attendant care for six hours a day.

The Workers’ Compensation Administrative Law Judge (WCALJ) awarded payment to the wife for services for 24 hours per day, 7 days a week from August 3, 2011 to November 4, 2012 and for 6 hours per day, 7 days a week from November 5, 2012 through continuing.

Defendant filed a petition for reconsideration arguing in relevant part that substantial evidence did not support the award, that applicant did not have a prescription for home health care within the meaning of Labor Code Section 4600(h) and, lastly, that the spouse failed to submit an itemization pursuant to Labor Code Section 4603.2(b)(1).

WCAB en banc decision

The WCAB first addressed whether the SB863 home health care provisions could be applied retroactively. They concluded that similar to SB899, these rules must be applied to all requests for the payment of home health care where there has not been a final determination prior to the effective date of the statute. In other words, unless there has been a final determination on the request for services prior to January 1, 2013, these rules apply.

The WCAB next addressed what constituted a prescription for purposes of Labor Code Section 4600(h). Referencing the Business and Professions Code, they concluded that the term prescription means an oral referral or recommendation communicated directly by the physician to the employer or the employer’s agent or a signed and dated written referral issued by a physician for an injured worker.

The WCAB did not feel that the prescription needed to be on a particular form nor did it require a detailed description of the recommended services. The WCAB emphasized that it is the employee’s burden to show that the prescription exists as well as the date that it was received by the employer. It was the date of the receipt that then limited an employer’s liability for retroactive services to 14 days prior to that date.

The WCAB specifically distinguished the oral recommendation from the written recommendation. The oral recommendation, they stated, had to be made directly by the physician to the employer. The written recommendation, however, could be received from the physician but also from any other source, including the applicant’s attorney.

Labor Code Section 4603.2(b)(1) was next addressed. It was found that while the requirements contained in Section 4603.2(b)(1) are necessary for payment, those requirements are not part of an injured worker’s burden of proof in establishing entitlement to home health care. In short, the WCAB found that the injured worker must satisfy the elements of Section 4600(h) and 5307.8 but not 4603.2(b)(1).

Finally, the WCAB addressed Labor Code Section 5307.8. The WCAB found that in addition to the requirements set forth in Section 4600(h), that pursuant to Section 5307.8, applicant must also produce evidence describing the hours of services required and provided as well as evidence explaining which services may have been provided prior to the industrial injury.

Applying the law to the facts in Hernandez, the WCAB concluded that the treating physician’s hand written note indeed constituted a prescription. They concluded that applicant’s counsel’s letter serving the note was proof that the note was received by defendant. However, the WCAB found that the record lacked sufficient detail as to what services were actually needed and what services were needed prior to applicant’s industrial injury. The WCAB also expressed disagreement with reimbursing the spouse based on her lost wages and not an appropriate rate for a similar caregiver. Accordingly, the WCAB ordered the further development of the record so that further information could be produced.

Commentary:

In summary, at the end of the day, Hernandez clarifies what the practitioner must prove in order to obtain an award of home health care. Although perhaps a little confusing at first blush, it is not that complicated. The applicant needs to obtain a prescription from his or her treating physician. As long as there is substantial evidence in the record supporting the prescription, the prescription need not be detailed. The applicant must mail, with a proof of service, the written prescription so as to prove the employer received it. The applicant must be able to establish the number of hours and the services needed. Finally, the applicant must be able to prove what services may have been provided before the injury and as well as a reasonable hourly rate for the requested services.

In light of the extremely punitive 14 day limitation on any claim for retroactive services, it is extremely important for both the represented and unrepresented employee to aggressively pursue this benefit if there is reason to believe that home health care services are necessary.

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