SB 636: Utilization Review by California Doctors in Workers’ Comp Cases

On February 16, 2023, Senate Bill 636 by Sen. Dave Cortese (D-San Jose) was introduced to require the use of California licensed physicians who conduct utilization reviews in workers’ compensation cases.  SB 636 would amend Labor Code Sections 3209.3 and 4610, as well as amend Unemployment Insurance Code Section 2708, and add UI Code 2708.2.

Section 1 of the bill would amend Labor Code Section 3209.5 to create a new definition of “psychologist” for private employers. This term would mean a psychologist licensed pursuant to California state law with a doctoral degree in psychology, or a doctoral degree deemed equivalent for licensure, and who either has at least two years of clinical experience in a recognized health setting or has met the standards of the National Register of Health Service Psychologists.

Section 2 of the bill would amend Labor Code Section 4610 to prohibit, only for private employers, the modification or denial of requests by a person other than a physician licensed pursuant to California state law who is competent to evaluate the specific clinical issues involved in the medical treatment services, if these services are within the scope of the physician’s practice, requested by the physician.

Section 3 of the bill would amend Unemployment Insurance Code Section 2708 to limit its application to only public employers and public employees.

Section 4 of the bill would add Unemployment Insurance Code Section 2708.2 to require a claimant to establish medical eligibility for each uninterrupted period of disability by filing a first claim for disability benefits supported by the certificate of a treating physician, health professional, or practitioner. The claim must establish the sickness, injury, or pregnancy of the employee, or the condition of the family member that warrants the care of the employee.

In addition, a certificate filed to establish medical eligibility of the employee’s own sickness, injury, or pregnancy would also have to contain a statement of medical facts within the physician’s, health professional’s, or practitioner’s knowledge, based on a physical examination and a documented medical history of the claimant by the physician, health professional, or practitioner, indicating the physician’s, health professional’s or practitioner’s conclusion as to the claimant’s disability, and a statement of the physician’s, health professional’s, or practitioner’s opinion as to the expected duration of the disability.

Moreover, an employee would be required to file a certificate to establish eligibility when taking leave to care for a family member with a serious health condition. The certificate would have to contain specified information within the physician’s, health professional’s, or practitioner’s knowledge and be based on a physical examination and documented medical history of the family member.

Finally, if a physician, health professional, or practitioner licensed by and practicing in a foreign country is under investigation by the department for filing false claims, and the department does not have legal remedies to conduct a criminal investigation or prosecution in that country, the department may suspend the processing of all further certifications until specified conditions are met.

The following terms would be defined: “health professional,” “physician,” and “practitioner.” For a claimant who is hospitalized in a county hospital in this state, a certificate of initial and continuing medical disability must satisfy the requirements of this section if the disability is shown by the claimant’s hospital chart, and the certificate is signed by the hospital’s registrar.

This new section of law would not preclude the department from requesting additional medical evidence to supplement the first or any continued claim if the additional evidence can be procured without additional cost to the claimant. This section would only apply to private employers.