Continuing Health Care Treatment

Serious Health Condition: Incapacity and Continuing Treatment
The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition involving either inpatient care or continuing treatment by a health-care provider. One way an employee or qualifying family member may have a serious health condition is through a period of incapacity and continuing treatment.

Under this rule, the employee or qualifying family member must have an incapacity of more than three consecutive, full calendar days and receive qualifying continuing treatment related to the same condition. The individual must also have subsequent treatment or a subsequent period of incapacity related to that condition.

Continuing treatment may be established in either of two ways:

• Two-treatment-visit rule: The individual receives treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances prevent the second visit from occurring within 30 days.
• Treatment-and-regimen rule: The individual receives treatment by a health-care provider at least once, and that treatment results in a regimen of continuing treatment under the provider’s supervision.

The first—or only—treatment visit must be an in-person visit with a health-care provider and must occur within seven days of the first day of incapacity. For the two-treatment-visit rule, the second treatment visit generally must occur within 30 days of the first day of incapacity, unless extenuating circumstances exist.

Treatment may be provided by a health-care provider; a nurse under the provider’s direct supervision; or a provider of health-care services, such as a physical therapist, acting under the orders of or referral from a health-care provider.

A regimen of continuing treatment may include prescription medication or therapy requiring special equipment to resolve or alleviate the condition. It does not include self-treatment measures such as bed rest, drinking fluids, exercise, or the use of over-the-counter medication when those measures are not part of a health-care-provider-supervised treatment plan.

Whether additional treatment visits or a continuing-treatment regimen are medically necessary within the 30-day period is determined by the health-care provider.

This is only one category of serious health condition under the FMLA. Other qualifying categories include inpatient care, pregnancy or prenatal care, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments.