THE
FAIR INSURANCE DEFENSE PHYSICAL EXAMINATION BILL
A
suggested draft
by
Health
Administration Responsibility Project, Inc.
Harvey
S. Frey MD, PhD, Esq., Director
(310)
394-6342 hsfrey@harp.org
A Bill to:
amend Insurance Code Section
10350.10
THE PEOPLE OF
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 a physical examination of the claimant by the insurer's medical expert. This is
commonly called an "IME", but more properly termed a "DPE".
(b)
These DPEs 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.
(e) As some examiners look to insurers for much of their income, it is necessary that the history of examiner's employment by defense law firms and insurers be disclosed, as currently required in Federal Rule of Civil Procedure 26(a)(2)(B).
SECTION 2.
Insurance Code Section
10350.10 is amended to read:
10350.10. A health or
disability policy shall contain a provision as follows:
(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 or the religion of the insured.
(b) A physical 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) An examination may be made only by a
California-licensed physician qualified in the specialty most closely related
to those issues which have occasioned the examination or, in appropriate cases,
a California-licensed dentist or podiatrist.
The
Insurer’s statement of accepted facts, issues to be resolved, and questions
asked of the examiner shall be made available to the examinee or his
representative prior to the examination upon request.
The
curriculum vitae and credentials of any examiner or technician shall be made
available to the examinee or his representative prior to the examination upon
request.
(d) 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.
(e) 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.
(f) Within ten days of receiving such notice
of DPE, 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.
(g) 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, driver, or observer.
(h) 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 DPE, 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.
(i) 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.
(j) In any disputes arising over the
propriety of an examination under this section, the insurer may not attempt to
enforce its position by suspending, terminating, or threatening to suspend or
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 shall pay the court costs and attorney fees of the insured.
(k) If the examiner refuses to proceed with
a scheduled examination in accordance with these rules, the examination shall
be waived, and may not be rescheduled for six months, during which period
benefits shall be paid.
(l) (1)When the examiner sends his report of the examination findings to the Insurer, he shall send a copy to the examinee or his representative at the same time.
(2) The examiner shall disclose in his report:
(i) the name of the defense law firm or insurance carrier by whom he was retained to perform the examination;
(ii) the fee he was paid for the examination; and
(iii) a list of all instances of retention by the defense law firm or insurance carrier within the prior ten years.
(m) All references in this section using
masculine gender include the feminine.
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