EMERGENCY REGULATION REGARDING TELEHEALTH MEDICAL-LEGAL EVALUATIONS IN RESPONSE TO CONTINUED COVID-19 PANDEMIC
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Friday, January 31, 2022
IN THIS ALERT: EMERGENCY REGULATION REGARDING TELEHEALTH MEDICAL-LEGAL EVALUATIONS IN RESPONSE TO CONTINUED COVID-19 PANDEMIC
Title 8, California Code of Regulations
Section 46.3
Effective January 18, 2022
Expires July 17, 2022*
Due to the ongoing COVID-19 pandemic, the Department of Industrial Relations, Division of Workers’ Compensation (DWC) adopted emergency regulation section 46.3. This emergency regulation authorizes Qualified Medical Evaluators (QME), Agreed Medical Evaluators (AME), or other medical-legal evaluations to be performed virtually through telehealth when certain conditions are met.
Section 46.3 directs that all of the following criteria must be established for a valid telehealth evaluation:
1) A remote evaluation agreement in writing by the injured worker, carrier/employer, and the evaluator;
2) The evaluator attests in writing that the evaluation does not require an in person physical exam; and
3) One of the following medical issues must be in dispute:
a. Causation of injury (AOE/COE);
b. The evaluator is asked to address the termination of an injured worker’s indemnity benefit payments, or
c. The evaluator is asked to address a dispute regarding work restrictions.
An important provision of § 46.3 mandates that a party’s telehealth request cannot be unreasonably denied. If a party’s telehealth request is denied, the regulation instructs that the denied party should file a Declaration of Readiness to Proceed to take the request before a Workers’ Compensation Judge for resolution.
*Emergency regulation § 46.3 is set to expire on July 17, 2022, however the DWC may elect to re-adopt the regulations for up to an additional 180 days, pursuant to Government Code section 11346.1.
WHAT THIS MEANS FOR YOU:
The language of this emergency regulation appears to have been drafted hastily and may prompt more questions to provide clarity.
If there is a dispute over a telehealth AME/QME evaluation that requires resolution by the WCAB, please be mindful that the evaluation and subsequent report are going to be delayed. There should be analysis of the potential cost of the delay versus allowing the evaluation to proceed forward.
To avoid delay, it is highly recommended that the parties attempt to informally resolve telehealth disputes before filing for a hearing.
Please address any questions to author and attorney, Kelli M. Hemmen,
of the Woodland Hills office:
Goldman, Magdalin & Krikes, LLP