Julius Young

Will California provide less home care to severely disabled injured workers than it provides to Medi-Cal recipients?

Under the umbrella of the California Department of Social Services, California provides in-home services to many of the elderly, blind and disabled poor. According to the California Department of Social Services website, the goal of the In-home Supportive Services program is to “help pay for services provided to you so that you can remain safely in your own home.”

The California Department of Social Services notes:

“The types of services which can be authorized through IHSS are housecleaning, meal preparation, laundry, grocery shopping, personal care services (such as bowel and bladder care, bathing, grooming and paramedical services), accompaniment to medical appointments, and protective supervision of the mentally impaired.”

A quick Google search shows that many California counties maintain websites that explain the IHSS program.

California wants to assist elderly, blind or disabled adults to help them stay in their homes rather than warehousing them in more expensive nursing homes or hospitals.

But is California prepared to turn a blind eye toward the needs of the most significantly afflicted work-disabled?

That’s a question that is at stake as California’s Division of Workers’ Compensation moves toward adopting regulations pertaining to a home health care provider fee schedule.

On Nov. 30, the DWC held a hearing on the proposed regulations (see bottom of this post for a link to the current version of the regs and also to the California Applicants' Attorneys Association’s comments on them). As drafted, the proposed regs appear to go beyond the scope of Labor Code 5307.8 which required the adoption of a fee schedule for home health care providers. Labor Code 5307.8 required adoption of a fee schedule on or before July 1, 2013, so a fee schedule is way overdue.

In addition to setting forth a payment schedule (proposed reg 9789.93) the proposed regs define “home health care services” by referencing the Medical Treatment Utilization Schedule known as MTUS (proposed reg 9789.90(d)). Further, proposed reg 9789.91(a) ties eligibility for reimbursement to MTUS.

Yet, Labor Code 5307.8 itself makes no mention of MTUS.

Here is what the currently effective MTUS says about home health care:

Recommended only for otherwise recommended medical treatment for patients who are homebound, on a part-time or “intermittent” basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed. (CMS, 2004)

MTUS tracks the federal Medicare standards on home care.

Given the strict MTUS standards, physician requests for home care assistance will be rejected by utilization review and independent medical review in a wide number of workers’  comp cases.

But as noted above, California is more generous with the elderly, blind or disabled poor when it comes to providing them home care assistance.

The IHSS program recognizes that many individuals need assistance with shopping, cleaning, laundry and personal care.

Earlier this year there was wide National Public Radio/ProPublica coverage of a situation involving a wheelchair-bound Southern California worker who was denied bathing and personal toileting care. That’s care that IHSS provides but that may get denied under the restrictive MTUS standards.

Let’s be honest about all of this. The powers that be at the Department of Industrial Relations and DWC (David Lanier, Christine Baker and Destie Overpeck) could just call a spade a spade. If they don’t want workers’ comp insurers and self-insurers to pay for this, then at least acknowledge that some of these workers will be faced with financial ruin. Or forced to sit in their own excrement.

Sure, some will eventually get to IHSS for help.

So the taxpayer can pay.

Is this the best California’s comp system can do for the severely injured?

Here is a link to the current version of the home health care fee schedule regs.

To read the comments on the regs submitted by CAAA, look here.

Here is a link to comments on the issue that were posted in a DWC forum.

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