Pre-Designation Outside Medical Provider Networks

By
David H. Parker

It appears that despite having a Medical Provider Network (MPN) established pursuant to Labor Code section 4616 et. seq., a pre-designated “personal physician” in some instances may be a doctor outside the MPN. This is assuming all the qualifications for pre-designation have been met.

According to the Department of Industrial Relations:

"Medical provider networks ensure workers in need of medical treatment receive proper care in an expedited manner and must meet certain standards. Those standards include improved access to care for common occupational injuries and illnesses, continuity of care, medical decision-making, and following treatment guidelines. Medical provider networks must also allow employees a choice of provider in the network (after the first visit) and a way to get second and third opinions. If an employer or insurer uses an approved MPN, covered employees will receive their medical care from a provider within the network, unless a pre-designated physician is chosen prior to an injury." [Emphasis added].

The black letter of the law related to MPNs does not appear to prevent a pre-designation outside of the network. Thus, in some cases the MPN may be rendered ineffectual where there is a successful pre-designation outside the network.

Labor Code section 4616.3(a) requires the employer to "arrange an initial medical evaluation and begin treatment as required by Labor Code section 4600" if it has an MPN. Labor Code section 4616.3(b) indicates that the employer "shall notify the employee of his or her right to be treated by a physician of his or her choice after the first visit from the medical provider network..." but nowhere does this section address pre-designation of a “personal physician.”

Labor Code section 4600 (d)(1) is clear that a “personal physician” may treat an employee when he or she has "notified his or her employer in writing prior to the date of injury..." and if certain conditions are met. These conditions include, but are not limited to, provision by the employer of non-occupational health coverage in a health service plan or non-occupational health coverage in a group plan.

"Personal Physician" is defined at Title 8, California Code of Regulations section 9780(h) as "a doctor who...prior to the injury...directed the medical treatment of the employee and who retains the employee's medical records and history..."

Title 8, California Code of Regulations section 9780.1 allows for treatment by such a "personal physician" when the employee notifies the employer in writing.

The statutes, as enacted, appear to allow for incidences of pre-designated personal physicians outside of the MPN, unless litigation or subsequent clean-up legislation clarifies this apparent MPN loophole. Treatment outside the MPN defeats its purpose and renders it ineffectual. Thus, it may be expected that this issue will find its way to the forefront of litigation and legislation in the near future.

The best defense at this point to preserving MPN integrity is to ensure that a pre-designated “personal physician” meets all the requirements to serve in such a capacity. Failure to meet all requirements defeats an applicant’s right to be treated by his or her personal physician and, in such a case, treatment defaults to a properly established MPN.