As we approach the year’s end, I’ll soon be publishing my annual list of the Top 10 Developments in California workers’ comp.

Julius Young

But first, a bit more on home health care, a subject addressed by proposed new chronic pain treatment guidelines. On Dec. 19, the 15-day comment period on new chronic pain guidelines closed. It’s quite likely that the Division of Workers' Compensation will be acting quickly to finalize the guidelines.

So a short recap is in order. Several weeks ago I wrote a post titled “A Disconnect: IHSS & The Comp System.” The post noted that a narrow definition of the basis for home health care had adversely affected a number of workers, causing suffering of some severely disabled folks. I noted that the state-sponsored In-Home Supportive Services system was more expansive in the way it provided home care to California’s elderly and disabled poor.

Obviously, the post struck a nerve with the DWC. Within several days, the DWC arranged for workcompcentral.com to post a rebuttal from DWC Administrative Director Destie Overpeck.

Overpeck stated that:

“Julius Young wrongly asserts that California’s Division of Workers’ Compensation intends to deny necessary home health care and push injured workers to In-Home Support Services. ('A Disconnect: IHSS and the Comp System,' Julius Young, Dec. 10). Young fails to recognize that the state’s Division of Workers’ Compensation is revising the Medical Treatment Utilization Schedule to make the home health care section more comprehensive.”

Overpeck noted that the DWC is in rulemaking that would change the defined criteria for home health care.

I concede that it is true that rulemaking will improve on the Draconian definition of the basis for home health care under the current Medical Treatment Utilization Schedule. This rulemaking is taking place after many years of application of the harsh MTUS home care limitations, however.

Furthermore, even under the new regulations, a number of workers who need assistance in their homes may be denied services.

That was the thrust of my comments filed with the DWC last Saturday before the comment period expired. Here is my analysis that was sent to the DWC:

These comments are directed to the home health care section of the proposed chronic pain treatment guidelines.

The proposed definition of and criteria for home health care services is an improvement on the existing MTUS standard, which has resulted in harsh results for a number of seriously injured folks who needed some in-home help.

However, I still have major concerns.

The regulations will likely leave a number of workers unable to access in-home services even though they are needed. This may include 
    a) workers who are not totally homebound but have intermittent episodes of pain or psychological disability that makes it hard for them to leave the home
    b) workers who are not homebound (for instance, they might occasionally drive a car) but cannot handle the essential activities of daily living inside their place of residence. There are workers who need help with personal care and domestic care who are not homebound but require those types of services. The fact that they can get outside their home some does not speak to their needs inside the home, which is what home services are all about.

Where is there any evidence that the DWC has even bothered to study the needs of these workers?

These guidelines as written would appear to offer no support for any in-home help to such folks, but I am not aware of any efforts by the DWC to look at studies or conduct hearings on the needs of such individuals.

I also believe that the reference to 30, 60, 90 and 120 days will set up situations where we will see lots of frictional costs as chronically severely ill workers are constantly forced to seek reauthorization for services that may be needed for years. This will likely result in UR/IMR disputes, and it is not clear how the WCAB’s Patterson case will affect this.

CMS references pertain to payment criteria under Medicare and not to medical studies on reasonableness or necessity of care to cure or RELIEVE. CMS does not pay for certain things, but referencing CMS is not a reference to studies on the necessity for care.

I would urge that the division look at the criteria and procedures used under the IHSS program. If IHSS services and access are more comprehensive, then some workers will want to access that, and this will be a continuing political football that will plague the DWC.

Here is a link to the DWC webpage for the chronic pain treatment guidelines: http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS-Opioids-ChronicPain/MTUS-Opioids-ChronicPain.htm

Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.