It looks likely that Governor Brown is going to sign Senate Bill 863 into law. There has been a lot of discussion concerning some of the more significant aspects of this legislation. The discussion thus far has seemed to focus on the Independent Medical Review (IMR) process, the elimination of the psyche, sleep disorder and sexual dysfunction add-ons and the increase in the PD rates. There is a lot more to the new law however.
One of the interesting, yet not often discussed, aspects of the new law has to do with home health care. Home health care is typically an issue in the more catastrophic industrial injuries. Oftentimes, in the home health care context, an injured employee has suffered a catastrophic injury requiring hospitalization. Upon discharge from the hospital, the injured worker is given the option of going into an inpatient facility such as a skilled nursing facility or he can choose to go home to the care of his spouse or family member.
Obviously, given the catastrophic nature of these injuries, the family is not thinking about a doctor’s prescription covering the hours per day home health care services are needed or level of care that is needed. At that point in time, just caring for the injured worker is the primary concern. It is not uncommon for the spouse caring for the injured worker to have to give up a job or at a minimum sleep as a result of taking care of the applicant.
In that getting paid is not the first priority for the family in these situations, it may take the injured worker and his family months and possibly years before they contact an attorney. It is often at that point in time that the attorney advises them that they may be entitled to reimbursement for the home health care services that have been provided to the injured worker. The attorney will advise the family to go to the treating physician and obtain a report indicating how much and what type of care was medically necessary. The attorney will advise the family to ask the doctor to document the injured workers’ home health care needs retroactively to when those services were first necessary.
Prior to the new law, there was no limit on how far back the request for home health care services could go. In other words, if the spouse was providing those services for the prior four years but did not know of her right to be paid for those services, there was no reason she could not have a doctor document those services and submit a request to be paid for the prior four years.
The new law will significantly change this. Pursuant to Labor Code Section 4600(h), the employer shall not be liable for services that are provided more than 14 days prior to the employer’s receipt of the physician’s prescription.
It is interesting to look at how this new law would impact a recent WCJ’s award of home health care. In Barragan v. American Bridge Floor Joint Venture (ADJ7714923), 2012 Cal. Wrk. Comp. P.D. LEXIS --, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) denied reconsideration of a Workers’ Compensation Administrative Law Judge’s (WCJ) award of retroactive home health care.
The only issue addressed by the WCJ in Barragan was whether the applicant was entitled to home health care services provided by his wife from the date of discharge from the hospital, March 17, 2011. At the time of the applicant’s discharge from the hospital, it was recommended that he be placed in a skilled nursing care facility so that could receive around the clock nursing care. It was estimated that he would have to stay in this facility for three months. Applicant and his family did not want to place applicant in a skilled nursing facility. They believed applicant would have a better recovery if he were allowed to go home under the care of his wife. Accordingly, at that time, he was discharged home to the care of his wife.
It was not until December 12, 2011, that the Panel Qualified Medical Evaluator (PQME) indicated that applicant needed full time care (at least eight hours a day) from March 17, 2011 to June 16, 2011. His need for care dropped to four hours per day from June 16, 2011 to September 15, 2011. His level of care needed dropped to two hours per day for the next four months.
The WCJ ordered that the spouse be reimbursed for twelve hours per day for the first three months. This amounted to $12,216 (1080 hours at an hourly rate of $12 per hour). She ordered four hours per day for the second three month period. This period was worth $4,320. For the final six months, she found that two hours a day was necessary and this was also worth $4,320. Accordingly, she awarded the applicant’s spouse $21,600 for her services.
Though the record on appeal is not entirely clear, if the PQME’s report was actually the first “prescription” of home health care services, under the new law, applicant’s spouse would not have been entitled to be reimbursed for any services prior to November 28, 2011. If this were true, then pursuant to the new law, the wife could only be reimbursed for 113 days for two hours per day. This would reduce her reimbursement from $21,600 to $2,712.
It is important to remember that had applicant not agreed to be cared for by his wife, the defendant in Barragan would have had to pay for a skilled nursing facility. Even the lowest level of care at one of these facilities, the care of certified nurse’s assistant (CNA), would have cost defendant significantly more than $12 per hour. Additionally, according to the hospital’s recommendation, applicant would have had to be in the facility “around the clock” or 24 hours a day. Thus, defendant directly benefited by the applicant’s decision to have his spouse care for him.
Simply put, the two week limitation on the retroactive period as provided for under the new Labor Code Section 4600(h) is going to preclude people who have performed medically necessary services from getting paid. Why should a defendant not have to bear these costs where it is established that the services were actually and necessarily performed? Though Labor Code Section 4600(h) will undoubtedly significantly reduce the costs not to mention the uncertainty involved with these retroactive home health care issues, the legality if not the morality of this two week limitation should be seriously questioned.
© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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