Sunday, June 3, 2018

CAN INSURANCE COMPANIES DISREGARD ADMINISTRATIVE LAW JUDGES' (ALJ's) ORDERS?


When can insurance companies ignore judge's orders? Anytime they want to it appears. Following is a case example (this piece is a follow-up and revision of the original article posted last week. It is based on newly received information including a recent ALJ decision).

Let's start with the Notice of Hearing dated 12/9/13.  At the bottom of the document is the signature of a Workers' Compensation Administrative Law Judge. The document says "Defendants agree to authorize Botox injection." The decision is made based on a doctor's report dated 8/2/13. The document also states that the issue at hand is a "Dispute Resolved by Agreement." 

Now, four and one-half years later, the patient states that the injection has still not been done.  

The Proof of Service shows that Minutes of Hearing were served on the interested parties on 12 December 2013. In this post we're not naming the parties or even the insurance company since to the best of our knowledge it is not uncommon for insurance companies to ignore judicial orders. 

The patient was injured in a five-car motor vehicle accident in 1993. The injured party was rear-ended twice and received hospital care. She tried to return to modified work. When her production didn't match pre-injury standards she was fired. Treatment and hospitalization were originally accepted by the insurer. Injured body parts were adjudicated and seemingly were determined to include the lower back, neck, knees, and shoulder. Our documentation reflects diagnoses of cervical disc disorder with myelopathy with severe disc protrusion at C6-7 with progressive degenerative changes superimposed at the injury site. The clinical note at the time said that patient "needs cervical spine decompression because of increasing spinal cord compression and ... is one fall away ... away from quadraplegia (sic)." Despite the gravity of her condition the neck surgery was repeatedly delayed. It was finally done in August of 2017. 

With reference to the lower back patient had lumbar laminectomy at L5-S1, lumbar epidurals, and a caudal block. Patient's left knee sustained meniscal tear. She had three surgeries for right knee meniscal tear. She sustained derangement of the left shoulder. 

Her treating physician or PTP recommended botox injection. This treatment was litigated and eventually supported by the ALJ whose order dated 12/9/13 seems to have been ignored by the insurance company. How is such a scenario possible? Can insurance companies decide which judicial orders they'll follow and which they won't?  

Addendum 7 June 2018

The latest ALJ order is from May 1st, 2018.  It names a specific physician as " authorized to continue to serve as PTP." The victim (formerly, we said "the patient") said that it took over a year for the insurance company to pay her bill and that "due to their mishandling of billing and payments he (the physician) will not be moving forward with me as a patient." The applicant who now lives out of state said that none of the doctors she's talked to are willing to accept California Workman's Comp Cases. It appears that the legally designated PTP has stepped aside. The patient-applicant is now in the proverbial cold. 

This turn of events, coupled with the facts that the ALJ decision of 12/9/13 said that "defendants agree to authorize Botox injection" and that this injection has still not been done after nearly 5 years shows us how some patients get hung out to dry. 

WCAB should assume jurisdiction, perhaps via the equivalent of en banc jurisdiction, and see to it that this patient gets the care that has been authorized by two judicial decisions, the first for botox injection, the more recent for future medical care. 

Monday, May 14, 2018

MALPRACTICE CASE SOON TO BE DECIDED BY SUPREME COURT


Malpractice reform in Utilization Review is again on the line, this time because the California Supreme Court has scheduled hearings re  King v. CompPartners on May 29. The case resolves about the rights of an injured worker when UR denies access to treatment ordered by a California licensed  physician and when, as a result of this medically wrong UR decision, an injured worker is not only denied treatment but also suffers harm as a result of the combined negligence of UR and the insurance carrier that benefits financially by being absolved of its obligation to pay for care.


The current issue revolves about the decision of an insurance company to stop paying for Kirk King's klonopin. The insurance company's decision was made on the basis of a utilization reviewer's wrongful judgement that could in due course prove harmful to physicians engaged in UR. Our information is that the UR doctor made an incorrect and harmful decision that was happily adopted by the insurance company. This quick-step could end up with a two-step revision of UR, namely, requiring that UR physicians be licensed in the states where their decisions are used and that they carry malpractice insurance in those states. This publication favors both steps. 

The California Workers Compensation Institute  (CWCI) has argued  that UR is not medical practice, a clearly absurd position to treating physicians and to the patients who are harmed. This fatuous argument was supported twice by Gov. Schwarzenegger and once by Gov. Brown who vetoed bills that would have implemented state licensing for UR and IMR (Independent Medical Review) doctors. Brown's reasoning was more tortured than Schwarzenegger's -- he said that requiring UR doctors to be licensed "would be an abrupt change and inconsistent with the manner in which utilization review is conducted by health care service plans under the Knox-Keene Act and by those regulated by the California Department of Insurance."


THAT is just the point: UR and IMR decisions that deny indicated and necessary care are harmful intrusions into medical care and should be squashed. These denials require the abandonment of the duty of care owed to injured workers. CWCI's reading of the law is frivolous, legalizes abandonment of sick and injured workers, and deserves to be repealed along with enabling law created by SB 863 --  which added insult to injury by adding IMR to the Utilization Review process.

In a nutshell, in the unfortunate case of Kirk King, the insurance carrier stopped payment for prescribed medication based on  the UR doctor's report. The result was that the patient suffered epileptic seizures.  

The opinion of this publication is that the injured worker was abandoned and that the UR system and the insurance company were at fault and opened the door to the malpractice litigation now in progress. The harm that befell Kirk King is proof that the UR system practiced unsound and negligent medicine. 

The Supreme Court should find that UR doctors owe a duty of care to injured workers and that in the King case UR and the insurer were negligent. Such a decision will restore equity between treatment and utilization review. 

References

High Court to Hear Arguments in UR Malpractice Dispute May 29, Workcompcentral, 2018-05-11

Malpractice by Utilization Review?, The Weinmann Report, 12/13/2014 (www.politicsofhealthcare.com)

Malpractice Reform Makes it to California Supreme Court, The Weinmann Report, 01/02/2017


Wednesday, May 9, 2018

CALIFORNIA'S PROPOSED DIALYSIS INITIATIVE



The California Dialysis Initiative is supposed to come up for vote in November. Its avowed purpose is to set arbitrary limits on what insurance companies pay dialysis clinics for actual patient care. The initiative sounds like it might be a protective device shielding patients from being overcharged. It isn't.

The dialysis clinics will be obliged to pay physicians and other providers less if they want to maintain current levels of corporate  profit. At the same time, to keep administrative charges intact, the clinic administrations will be obliged to scramble their physicians and require them to see more patients per unit of time.  It's called "efficiency." 


The California Medical Association is opposed to the initiative  because it poses potential harm to patients, but probably also because it poses financial hardship on large clinics and healthcare plans. For instance, healthcare contracts to provide care would have to be revisited and revised downwards. Current contracts would have to be renegotiated.  Physicians, through no fault of their own, would be obliged to bear the brunt of reduced remuneration to keep the money flowing to the upper echelons of administration. That's how business is done in America, isn't it? 


Once profitability is reversed recruitment of providers will drop. The trouble is that dialysis patients aren't in-and-out customers -- they often need lengthy visits, often more than occasionally -- so in the final analysis this initiative is against their best interests. That's why this initiative needs to go back to the drawing board.  

Thursday, May 3, 2018

SB 1303 (Pan and Galgiani) is a step forward


SB 1303 is follow-up legislation to SB 1189 (Pan) and expands upon the partial success of the earlier bill.This legislation, initially sponsored by the Union of American Physicians and Dentists (UAPD), is currently co-sponsored by the California Medical Association (CMA). It requires counties with 500,000 or more population to rely on physician-MDs or DOs who are Medical Examiners to do forensic autopsies. It does away with the outmoded and politically orientated Sheriff-Coroner system. All that is explained in our earlier reporting illustrating how cover ups of wrongful death could happen under the Coroner system. 

The UAPD Legislative Report, 4/28/2018, said that UAPD President Stu Bussey, MD, JD, and Bennet Omalu, MD, MBA, of movie Concussion fame, "vociferously advocated on the need for this bill" before the Senate Governance and Finance Committee. Clearly, their testimony was convincing. 

The CMA Legislative Hot List, 5/3/2018, states that the San Joaquin County Board of Supervisors recently eliminated the office of the sheriff Coroner and adopted a Medical Examiner model. CMA, with deserved self-praise, said "the pressure from this legislation clearly influenced the county's decision." 

The Weinmann Report, accepts plaudits, too. The California Society of Industrial Medicine and Surgery (CSIMS), the California Neurology Society (CNS), and others who saw the need and supported this legislation also deserve recognition. 

As we go to print, our information is that the bill is in Senate Appropriations. Physicians should write, e-mail, or fax Doug Chiappetta who is handling the bill for the UAPD and Stuart Thompson who is doing the job for the CMA to give this bill high priority. SB 1303 is a step forward in restoring professional prerogatives to properly educated professional persons.

References

Dr. Richard Pan Introduces Bill to Boost Public Confidence in Autopsy Reports, 20 Feb 2018, 
contact Shannon Velayas Martinez, 916-271-2867

The Weinmann Report, "SB 1303 would replace coroners with medical examiners," 2/25/18

The Weinmann Report, "forensic autopsy bill clears senate moves to assembly, 06/02/16

The Weinmann Report, "When is death by drowning described as 'undetermined'? " 5/30/16

The Weinmann Report, "Probable drowning," 5/23/16

CSIMS, "Issue of Interference in forensic autopsies isn't a new issue," 12/20/17



Monday, April 9, 2018

AB 3087: A STEP BACKWARDS


If  AB 3087 (Kalra) becomes law, California will be obliged to appoint a commission to set prices and ration care. Access to care will become increasingly unavailable as costs are shifted to out-of-pocket expense.  How's that for a step backwards?


AB 3087  is still in flux, but here's what we know so far.


1) an appointed commission (nine members) will have the authority to set prices for medical and surgical services that are not already under government control. The idea is to squelch commercial health care such as insurance companies who have earned their way into the public's wrath. It would also put a huge crimp into Kaiser and like plans. It is rationing by government edict.

2) Like the flawed single-payer plan, SB 562, it would exclude the very persons most knowledgeable about health care from participating in its governance. None of the nine appointees need be physicians.

3) True to the principles of hypocrisy in government, the bill makes provision for lawyers and even for lobbyists to be reimbursed.

According to the Legislative Counsel's Digest, 03/23/18, "Existing law, the Health Data and Advisory Council Consolidation Act, requires certain health facilities and freestanding ambulatory surgery clinics to file specified reports with various patient and health data information with the Office of  Statewide Health Planning and Development ... this bill would require a health facility to  report specified reimbursement information for each procedure performed including Medicare reimbursement on a fee-for-service basis (italics added)."


My comment: the bill is intended to establish "caps" and puts the power to do so in the hands of political appointees (much as was the case in the recently repealed section of the Independent Payment Advisory Board under the Affordable Care Act). The broad power of this bill is that it establishes fixed fees for hospitals, health care plans, and providers and socks the difference to out-of-pocket payments by the patients themselves. The bill in its current form allows payments at 100% of Medicare -- but tomorrow's 100% could be substantially less.


Proponents include SEIU, CAL Labor Fed, Unite Here, The Teamsters, and Health Access That the bill could harm their members akin to how SB 863 did does not seem to be an issue with Big Labor.

Expected opposition is likely from the California Medical Association, the California Neurology Society, and others representing the organizations about to be stepped on.

Insiders to the politics of healthcare have asked this writer how the Union of American Physicians and Dentists who belong to AFSCME, AFL-CIO will deal with this issue. The UAPD is a part of organized labor and at the same time represents a few thousand state and county employed physicians, some clinics and private practice. Has either group -- SEIU,  CA Fed, Teamsters et al, or the CMA consulted with the UAPD which has interests on both sides (physicians who are labor union members) of this issue?

We'll letcha' know as soon as we know! Stay tuned! To have your own say on the matter, here's a tip: this bill is scheduled to  be heard by Assembly Health Committee on 4/24/18. 

Update, 4/11/18: AB 3087 is probably beyond amending. It's likely that proponents will amend suggested amendments to keep  this blunderbuss approach to corrective legislation as untouched as possible, My recommendation is to oppose. Stay tuned. More to come. Recommend readers write their representatives prior to hearing and not wait for organizational replies - but copy the organizations to which you pay dues and take note of what they do and to whom they listen, -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com 

Updated update, 4/24/18: AB 3087 handily cleared the Health Committee on an 8 to 4 vote.  Some of the aye votes were accompanied by misgivings on the part of committee members who said they might still vote against the bill on a floor vote unless further adjustments, unspecified,  are made. -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com

Monday, March 26, 2018

SB 1303 (Pan & Gagliani), Amended in Senate


SB 1303 was introduced by Senator Pan on 02/16/18.  Senator Gagliani has joined as coauthor. The original bill had some loopholes (see references below) which have now been closed by language amended in the Senate on 03/22/18. The amendment is directed to the office of Medical Examiner (ME) who "shall be a physician and surgeon licensed to practice medicine in this state, or an osteopathic physician and surgeon licensed to practice osteopathic medicine in this state." 

Readers of this blog know that the state license issue has been paramount for this column. We're glad to see it resolved. Kudos to Pan and Gagliani. 


Unfortunately, still unresolved is the issue of Utilization Review and Independent Medical Review physicians who are not licensed in California but who are nonetheless allowed by law to deny authorizations for diagnostic tests and treatment for injured workers. 

References

"Probable Drowning (SB 1189,  Pan & Jackson)," The Weinmann Report, 05/23/2016

"SB 1303 (Pan & Gagliani) would replace coroners with medical examiners, The
Weinmann Report, 02/25/18

"Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody," The Weinmann Report, 02/19/18

Update on SB 1303 as of 11 April 2018: this bill just got referred to a second committee, Public Safety. Legislators call that "double referred." Depending on your point of view, double-referral is either a second chance or double jeopardy. Chair of Public Safety is Senator Nancy Skinner, Vice Chair is Sen. Joel Anderson, other State Senate members are Steven Bradford, Hannah-Beth Jackson, Holly Mitchell, Jeff Stone, and Scott Wiener. Our Sacramento pundits say Stone and Anderson are likely to vote no --- they're not sure about the others. Are you? 









Wednesday, March 21, 2018

WHAT HAPPENS WHEN MISTAKES IN LEGISLATION GET SIGNED INTO LAW? SB 1303 (Pan & Gagliani)


Physicians who accept injured workers as patients know that adverse Utilization Review (UR) decisions can devastate well planned diagnostic and therapeutic programs for injured workers. Some major facilities won't tolerate this risk and refuse to accept injured workers (this blog published a letter from Stanford saying just that -- see blog) 

Utilization Review is required in workers comp. It works like this. Doctor A interviews and examines Injured Worker B and decides that certain diagnostic tests and treatment are indicated. But in workers comp and in other insurance venues that decision gets forwarded to UR doctors who do not interview or examine the patient. Instead, they review the medical record and decide about authorization for the recommended diagnostic test and/or treatment. Absent this authorization the treatment program is stopped dead in its tracks. 


Under California law doctors who do utilization review need to be licensed physicians; however, the law does not say they must be licensed in California.This oversight has led to countless situations where  doctors not licensed in California reject treatment plans proposed by doctors who are licensed in the state. The rejections may be appealed but in the vast majority of cases the rejections are upheld. It would be simple enough to correct this oversight by amending the law so that UR has to be done by California licensed physicians. Insurance companies oppose such changes. 

California-licensed physicians are subject to discipline by the state medical board which has, as a matter of fact, recommended that all physicians doing UR on California cases be licensed by the state and be subject to discipline by the state board. By contrast, non-California licensed physicians are not subject to this state's medical board so are not subject to state board discipline in California. They are also not subject to discipline by their own state boards since California cases are out of their jurisdictions. This situation has led to frequent appeals, delayed care, further injury to untreated injured workers, and an exodus of doctors from industrial medicine (workers comp). 


Now comes SB 1303, introduced by Dr. Richard Pan to make sure that forensic autopsies are conducted by licensed physicians instead of by non-medically trained persons who've been designated or elected as coroners. However, as the bill is currently written, the requirement is for this job to be done by a "medical examiner ...  a licensed physician and surgeon duly qualified as a specialist in pathology. No mention is made of licensure in California. At least, not yet. 


In order to avoid travesties akin to what has been happening with UR for the last several years my recommendation is that medical examiners (MEs) shall meet the qualifications as already stated in SB 1303 and to these requirements be added mandatory licensure in California with the same oversight by the medical board as is provided for physicians licensed in California. No residence requirement is sought, only medical licensure in
California.


Otherwise, in highly disputed forensic cases such as we've described in previous editorials, the door is opened for interested parties  to seek out medical examiners who are not subject to the state medical board. The idea would be to secure an ME who is as malleable as some of the UR doctors have turned out to be. An ounce of prevention would be to make sure that physicians accepted as MEs are licensed in California.  

References


Senate Bill # 1303 (Pan and Galgani), 16 February 2016


Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody? The Weinmann Report, 19 February 2018


SB 1303, SB 1303 (Pan & Gagliani), would replace coroners with medical examiners, The Weinmann Report, 25 Feb 2018


"Probable Drowning (SB 1189, Pan & Jackson)," The Weinmann Report, 23 May 2016 (www.politicsofhealthcare.com) 


When injured workers aren't accepted, viz,, Stanford Med Ctr, The Weinmann Report, 11/25/15