A suggested draft
Health Administration Responsibility Project, Inc.
A Bill to:
amend Insurance Code Section 10350.10
THE PEOPLE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares as follows:
(a) In many types of insurance, such as disability insurance, an essential part of claim processing is an examination of the claimant by the insurer's medical expert. This is commonly termed an "IME".
(b) These IMEs may also be necessary to determine whether changes in claimant's physical condition require change or termination of benefits.
(c) Since the examiner is an employee of the insurer, whose report may result in denial of benefits to the examinee, the examination is inevitably adversarial in nature, and the examinee is entitled to at least as much protection as in a court-ordered examination in connection with discovery in a civil suit.
(d) It is therefore necessary that the scheduling and conduct of such examinations are and are perceived to be fair to examinees.
(a) Insurance Code Section 10350.10 is amended to read:
10350.10. A disability policy shall contain a provision which shall be in the form set forth herein.
(a) Physical Examinations and Autopsy: The insurer at its own expense shall have the right and opportunity to examine the person of the insured under the conditions stated herein, and to make an autopsy in case of death where it is not forbidden by law.
(b) An examination may be scheduled in connection with initial investigation of a claim under the policy. If on-going benefits are being paid, an examination may be scheduled if there is a clear change in medical condition which may affect continuation of benefits.
Otherwise, examinations may be scheduled no more frequently than every six months.
Examinations may not be unreasonably cumulative or duplicative, or seek information obtainable from some other source that is more convenient or less burdensome.
(c) If an examination or test is painful, uncomfortable, dangerous, embarrassing, inconvenient, intrusive, or protracted, such as venipuncture, intubation, bowel preparation, or radiologic, pelvic, or psychiatric examination, it may not be done more often than annually without specific evidence of need, the information hoped to be obtained, and explanation of why a less offensive modality cannot be employed.
(d) Insurer must give examinee thirty days written notice of examination under this section, including time, place and phone number of the examination site, the identity, medical license number and specialty of both the ordering and examining physicians, and the manner, conditions, scope and nature of the examination to be performed. Length of notice period may be shortened with consent of the examinee.
(e) Within ten days of receiving such notice of IME, examinee may for good cause require insurer to reschedule to an alternate date within two weeks before or after the originally scheduled date, by providing insurer with at least five suitable dates within that four week period, and a description of the good cause.
(f) If the place of examination is fifty or more direct map miles from the examinee's residence, insurer must tender, in advance, expected expenses, including transportation, meals and lodging, for examinee and if reasonably necessary, an aide or driver.
(g) If the place of examination is fifty or more direct map miles from the examinee's residence and, within ten days of receiving notice of IME, examinee provides insurer with a list of five physicians of the same specialty closer than the one chosen by the insurer, insurer must reschedule the examination with one of those on the list.
(h) In any examination the examinee may, at his own expense, be accompanied by an observer of his choice, who may record the examination in any way, including by audio or video tape.
(i) In any disputes arising over the propriety of an examination under this section, the insurer may not attempt to enforce its position by terminating or threatening to terminate benefits until it obtains a court order declaring its right to do so, pursuant to Code of Civil Procedure Section 1060. If the insurer loses the motion, it will pay the court costs and attorney fees of the insured.