PROPOSED QME EMERGENCY REGULATIONS BY CLIFF WEINBERG

Apr 27, 2020

To our colleagues, friends, and business partners, we hope you stay safe and healthy.  In response to the unprecedented corona virus pandemic crisis, on 04/24/20 the Division of Workers Compensation (DWC) issued to the Office of Administrative Law (OAL) two new proposed emergency regulations to assist the parties in the operation of the QME program.  They specifically deal with med-legal evaluations and service of reports related to them, with the intent and hope that a huge backlog of these evaluations due to the stay-at-home order can be avoided.

The OAL has up to 10 days to consider these regulations but may approve them sooner.  The emergency regulations would then stay in effect for 180 days.

These regulations are to be numbered Sections 36.7 and 78, and the most salient items are briefly summarized below. Take note that the rules related to electronic service require written agreement of the parties. Please refer to the following website for the regulations in their entirety:

  https://www.dir.ca.gov/dwc/rulemaking/dwc_rulemaking_proposed.html

 

CCR §78 – QME Emergency Regulation in Response to COVID-19

(a)    During the period that this emergency regulation is in effect a QME, AME or other med-legal evaluation may be performed as follows:

(1) Current med-legal appointments currently calendared may be re-scheduled within 90 days after stay-at-home orders are lifted, or

(2) A QME or AME may provide a record review and electronic interview summary report. The interview may be by form or video conferencing. Once the stay-at-home order                  is lifted, the doctor may then schedule a face to face evaluation with precautions. [Specific fee schedules are then provided in sub-sections.]

(3) A “telehealth” med-legal evaluation may be completed when a physical examination is not necessary, and all the following conditions are met. [Telehealth is defined as a                   remote visit via videoconferencing, video-calling or similar such technology that allows each part to see the other via a video connection.]

      • The injured worker is not required to travel outside of their household;
      • THE ONLY ISSUES: AOECOE; termination of indemnity benefits; work restrictions;
      • Agreement in writing between the parties;
      • The telehealth visit is consistent with ethical medical practice as determined by the QME; and
      • The QME attests the evaluation does not require a physical exam.

(d)   This section suspends the QME time frame provided in §31.3(e).  If an appointment with a QME cannot be set within 90 days the party may waive the right to a replacement             QME and accept an appointment within 120 days of the date of the initial appointment request.

(e)    The time periods in §38 are extended by 15 days.  This includes the initial report due from a QME within 30 days of the examination.

(f)     The QME shall schedule the appointment at the office listed on the panel.  Subsequent appointments may be performed at another office.

CCR §36.7 – Electronic Service Emergency Regulation in Response to COVID -19

(a)    During the period of this emergency regulation, a QME, AME or other med-legal report, and required documents may be served electronically…

      • This shall be permitted only where the parties agree and a written confirmation is made, which shall include the party’s electronic address for receipt of service (a)(2).
      • Electronic service shall not be permitted on any unrepresented party or unrepresented injured worker (a)(3).
      • Service is complete at the time of transmission. Any period of notice and any right or duty to act or make any response within any period on a date certain after service of the document, shall be extended by two business days (a)(5).  (NOTE:  this is to be compared with service by US Mail in which any response or duty to act or response is extended by five business days.)

(b)     These rules will also apply to claims of injury to the psyche, and the rules related to service of those reports pursuant to 36.5.

(c)      This sets forth the requirements for an “Affidavit of Proof of Electronic Service.”

Thanks,

Cliff

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