Chapter 4.5. Division of Workers' Compensation
Subchapter 1. Administrative Director--Administrative Rules
Article 3.5. Medical Provider Networks

§ 9767.19. Administrative Penalty Schedule; Hearing, Mitigation and Appeal.

(a) A penalty may be assessed against an MPN applicant for each failure of an MPN to comply with the Medical Provider Network requirements in Labor Code sections 4616 through 4616.7 and Title 8, California Code of Regulations, sections 9767.1 et seq. For MPN applicants who have multiple MPNs and for multiple MPNs using the same network, if a specific violation affects more than one MPN, multiple penalties will not be assessed against the MPN applicant(s) provided that the violation is remedied for all affected MPNs within a reasonable time period, as determined by the Administrative Director based on the nature and extent of the violation. Penalties may be assessed against an MPN applicant for the following violations:

(1) MPN filing requirements with DWC:

(A) Failure to file a Notice of MPN Plan Modification within fifteen (15) business days of a change in the name of the MPN or the MPN applicant, $500 initially and for each seven calendar days thereafter if the failure continues, up to $5,000.

(B) Failure to file a Notice of MPN Plan Modification within fifteen (15) business days of a change in the MPN applicant's eligibility status, $2,500.

(C) Failure to file a Notice of MPN Plan Modification within fifteen (15) business days of a change in DWC liaison or authorized individual, $500 initially and for each seven calendar days thereafter if the failure continues, up to $5,000.

(D) Failure to file a Notice of MPN Plan Modification for a material change in any of the employee notification materials, including but not limited to a change in MPN contact or MPN medical access assistant information or a change in provider listing access or website information required by section 9767.12, $2,500.

(E) Failure to file a Notice of MPN Plan Modification for all other material changes that require the filing of a Modification of MPN plan as set forth in section 9767.8, $1,000.

(F) Failure to file a complete plan for MPN reapproval within the time frames set forth in section 9767.15, $2,500.

(G) Failure to include geocoding of its current provider listing with the MPN reapproval application, $500 for each 30 days or part thereof that the failure continues after the date of submission of the reapproval plan.

(2) Network access requirements:

(A) Failure to perform the required quarterly provider listing updates pursuant to section 9767.12(a)(2)(C), for each inaccurate entry, $250 up to a total of $10,000 per quarter.

(B) Failure to update reported inaccuracies in the network provider online listing within forty-five (45) days of notice to the MPN through the contact method stated on the provider listings, $250 for each occurrence up to a total of $10,000, per quarter.

(C) Failure of an MPN medical access assistant to respond to calls by the next day, excluding Sunday and holidays, $250 for each occurrence and $50 for each additional day a response is not provided, up to a total of $1,000 per occurrence.

(D) Failure of an MPN Applicant to permit an injured covered employee to obtain necessary non-emergency services for an initial MPN treatment from an out-of-network physician when the Medical Access Assistant fails to schedule an appointment within 3 business days of receipt of request from the injured covered employee, $500 for each occurrence.

(E) Failure of an MPN Applicant to permit an injured covered employee to obtain necessary medical treatment from an appropriate out-of-network specialists requested by the primary treating physician when, within 10 business days of receipt of request from the injured covered employee, the MPN Medical Access Assistant has failed to schedule or offer an appointment with an appropriate specialist to occur within 20 days of the receipt of the request, $500 for each occurrence.

(F) Failure to meet the physician acknowledgment requirements pursuant to section 9767.5.1; $250 per non-compliant acknowledgment.

(3) MPN cooperation with DWC's requests for information or documentary evidence:

(A) Failure to respond to a request for information or documentary evidence pursuant to an MPN complaint, petition for suspension or revocation of an MPN, random review or investigation, within thirty (30) calendar days of DWC's request, $2,500.

(b) Penalties may be assessed against the employer or insurer responsible for these notices violations:

(1) Failure to provide the complete MPN employee notification pursuant to section 9767.12 to an injured covered employee, $500 per occurrence up to $10,000.

(2) Failure to provide the entire or correct complete MPN employee notification notice required under section 9767.12 to an injured covered employee, $250 per occurrence up to $10,000.

(3) Failure to provide an injured covered employee who is still treating under an MPN written notice of the date the employee will no longer be able to use the MPN, $1,000 per occurrence.

(4) Failure to provide the MPN Independent Medical Review notice, $250 per occurrence.

(5) Failure to provide the Transfer of Care notice to an injured covered employee, $250 per occurrence up to $10,000.

(6) Failure to provide the Continuity of Care notice to an injured covered employee, $250 per occurrence up to $10,000.

(c) If a violation of any of the requirements of this article and or Labor Code section 4616 through 4616.7 is found, the Administrative Director shall notify the MPN applicant in writing of the specific violation. The Administrative Director shall allow the MPN applicant an opportunity to correct the violation or to respond within ten days with a plan of action to correct the violation in a timely manner. If the Administrative Director determines that the violation has not been cured in a timely manner, he or she shall issue a Notice of Action to the MPN applicant that specifies the time period in which the administrative penalty will take effect and shall transmit the Notice of Action to the MPN applicant by U.S. Mail.

(d) Penalty amounts may be mitigated upon written request to the Administrative Director by the MPN applicant within twenty-one days of the date of the Notice of Action. Mitigation will be determined based on the MPN's documented attempts to address the violation(s) of Labor Code sections 4616.1 through 4616.7 or of this article resulting in the penalties at issue, the responsiveness and good faith of the MPN in taking actions to prevent the violations from reoccurring, whether it is the first violation of its type, the frequency of violations found, the history of violations by the MPN, the medical harm or consequences of the violation(s) on an injured worker(s), and any extraordinary circumstances that may be relevant to mitigation of the penalties, when strict application of this mitigation provision would be clearly inequitable.

(e) An MPN applicant may request a re-evaluation of the administrative penalty, by submitting to the Administrative Director, within 20 days of the issuance of the Notice of Action, a written notice of the request for a re-evaluation with a detailed statement explaining the basis upon which a re-evaluation is requested. The request for a re-evaluation shall be accompanied by supportive documentary material relevant to the specific allegations raised and shall be verified under penalty of perjury.

(f) The Administrative Director shall, within 45 days of the receipt of the request for a reevaluation, either:

(1) Issue a Decision and Order affirming the Notice of Action based on a failure to meet the procedural requirements of this section or based on a failure to meet the requirements of Labor Code section 4616 through 4616.7 and this article;

(2) Issue a Decision and Order rescinding the Notice of Action;

(g) The Administrative Director may extend the time specified in subdivision (f) within which to act upon the request for a re-evaluation for a period of 30 days and may order a party to submit additional documents or information.

(h) An MPN applicant may appeal the Administrative Director's decision and order regarding the MPN by filing, within twenty (20) days of the issuance of the decision and order, a “Petition Appealing Administrative Director's Medical Provider Network Determination” with the Workers' Compensation Appeals Board pursuant to WCAB Rule 10959. A copy of the petition shall be concurrently served on the Administrative Director.

Note: Authority cited: Sections 133 and 4616, Labor Code. Reference: Sections 4616(b)(4) and 4616(b)(5), Labor Code.

HISTORY

1. New section filed 8-27-2014; operative 8-27-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 35).