Thursday, August 18, 2016

NOW COMES SB 1160 (Mendoza): Unreasonable Denials


SB 1160 (Mendoza) would require that lien claimants in workers comp file declarations with all liens as of 1 January 2017. Failure to follow through on this step would enable WCAB to dismiss the lien. As part of the signed declaration physicians would be obliged to say that the dispute in question is not subject to independent bill review. As we know from previous posts utilization review (UR) appointees  and independent medical reviewers (IMR) in California do not have to be licensed to practice in California, do not have to disclose their names, and are enabled by law to reject the most indicated and necessary treatment protocols . The situation is so dire that many treating physicians simply don't trust the utilization review or IMR process. In one recent post we disclosed how one UR doctor notified the injured worker's doctor about a denial of care at 10 PM while another notified the treating doctor's physician at 4:00 AM (nobody was home either time).

Carl Brakensiek, MBA, JD, Physician Advocate representing the California Neurology Society and the California Society of Industrial Medicine and Surgery, and others, has expressed concern "that some of the recently announced proposed amendments to SB 1160 will severely restrict access to care for many injured workers in California" and that certain "amendments being advanced by the Department of Industrial Relations will have a substantial adverse impact on many bona fide injured workers."


It was then pointed out that, fortunately, under the present system, because liens can be filed, there are physicians able and willing to provide medical care even though liability is being disputed. We call that a "Safety Net." It works because once proper liens are filed the providers of service get paid .

SB 1160 (Mendoza) throws all this past medical history out with the baby and the bathwater. It will require that liens for medical treatment be filed alongside declarations signed under penalty of perjury saying that the dispute isn't subject to independent medical review. Denial letters from adjusters or claims managers would no longer be automatically assumed to mean that "medical treatment has been neglected or unreasonably refused" and would allow employers to refuse coverage for injuries simply by asserting that the injury wasn't industrial. Brakensiek argues that this language should be revised "to specify clearly that if the employer has explicitly or constructively denied liability for the injury, then the claimant may file a lien."


Another likely blow to injured workers has to do with the assignment of liens. This technique is a financing modality useful when a number of liens have piled up over time because insurance companies, buttressed by Utilization Review, in turn buttressed by Independent Medical Review, have wrongly denied claims. The Lien Report from the Commission on Health and Safety Workers Compensation has already weighed in on this issue. Here is what was said: "we find no evidence that the practice of assigning lien rights is a problem in and of itself." By abolishing this mechanism, the Department of Industrial Relations now intends to make it a problem "in and of itself."

In a nutshell, prohibiting the assignment of liens would then become one more nail in the coffin of injured workers since many physicians now accepting liens would no longer be able to continue in practice. All in all we do not find that SB 1160 is helpful legislation in its current form. We find that amendments are needed. Therefore, at the present time, we urge an OUA (oppose unless amended) approach. 


Friday, August 12, 2016

AB 72 (Bonta): a pending bait and switch bill: Oppose Unless Amended


AB 72 (Bonta) is supposed to be consumer-friendly legislation since it'll do away with "surprise billing." The term, "surprise billing," refers to instances where patients, unable to secure medical services within their own network or managed care plan, are obliged to retain an out-of-network physician who then may charge usual and customary fees. The out-of-network physician is not bound by network rates because he has not contracted with the network. The "surprise" is to the patient who finds out (1) that he is not covered by the network to which he's been paying annual enrollment fees and (2) the out-of-network bill may be considerably more than one would have expected from an in-network provider. The patient caught in this trap has good cause to be angry.

AB 72 is supposed to "cap" out-of-network provider billings. The technique is also a "surprise" because in the guise of protecting patients it actually harms them while bolstering the profiteering mantra of the insurance industry. It is called "in-network cost sharing."


Susan Hansen, MD, neurologist, Mountain View, states that "AB 72 is a rate-setting bill that will devastate physicians ... by setting rates at 125% of Medicare." Hansen points out that no plan is likely to contract for a higher rate than the ceiling set by legislation and that "this bill removes the last chair in the musical chair game that price-fixing has caused" because "Medi-Cal, Medicare, and WC (workers comp) fees are typically set below the cost of doing business." Hansen then points out that this mechanism "forces physicians to cost-shift to the PPO and uninsured patients."


The tricky-dick part of AB 72 is that it actually forces all physicians to become de facto members of provider networks. Once this squeeze has been foisted onto the doctors, the door will be wide open for networks to increase executive compensation and corporate profit since they will now save money by underpaying physicians. Patients should soon realize that their premiums are being used to reward administrators, not the physicians and surgeons for whom they thought they were contracting. AB 72 is a fancy version of bait and switch. 

The trouble is that this "in-network sharing" model will  create understaffed networks -- that's how patients will suffer. Understaffed networks means fewer and fewer available physicians and surgeons -- the money moguls will have succeeded in putting profits before patients. AB 72 will be the tool. 

Eileen Natuzzi, MD, surgeon, San Diego, puts it this way: "... this mess was created by insurance companies and plans underpaying doctors, not doctors billing too much."


How to take action: We  expect this bill to go to the State Senate on or about August 16th. Next it's scheduled for the Assembly. Our recommendation is OPPOSE UNLESS AMENDED.


Here is a proposed amendment:  "health-care plans should be required to maintain full provider lists covering all specialties. The plans should provide these lists to their in-network providers and to all of their subscribers and customers.  Networks that fail in this requirement should be penalized by fines and disciplinary action against their managers and officers." 

Tuesday, July 19, 2016

SB 863 (De Leon) benefits employers, harms injured workers


News Release # 2016-73, Department of Industrial Relations (DIR), July 15, 2016, boasts that workers comp reforms have shown "benefits for injured workers, employers." This writer agrees that the work comp reforms mandated by SB 863 (De Leon) have brought about substantial benefits for employers.

SB 863 is supposed to work by relying on "evidence-based medicine to guide treatment decisions." It is supposed to settle treatment disputes by allowing independent medical reviewers to rule on the correctness or not of decisions made by Utilization Review. David Lanier, Labor and Workforce Development Secretary, is quoted in the DIR release as follows: "The primary goals of the 2012 workers' compensation reforms were to increase benefits and improve medical care for injured workers, and to control costs for employers."


This DIR release is its 3rd annual report since SB 863 took effect on 1 January 2013. Among its boasts are that the projected average medical costs per claim have gone down about 8% from 2011 to 2015 and that"benefits for workers also improved." The report says that "a focus on evidence-based medicine  has had wide-ranging impact, reducing costs and unnecessary treatment and creating Independent Medical Review (IMR) to resolve disputes." In support of these allegations, DIR Director Christine Baker said "Stakeholders have had valuable input at every stage in this process." This publication takes issue with this assertion. Here's why:

* Certain kinds of treatment such as physical therapy are limited to 24 sessions even though there is no peer reviewed evidence-based guideline that avers such a limit. Hence, P.T. to  injured workers is often prematurely stopped thereby delaying recovery and return to work. Initially costs are curtailed by this arbitrary stoppage; eventually, however, the injured worker remains without treatment, withdraws from the workforce, and applies for social security.

* In TotalCapitol.com, 2 April 2014, this writer described a situation where a Utilization Review doctor called a treating doctor's office at 10 PM to deny authorization for care. Not surprisingly, nobody was in. The PTP or Primary Treating Physician asked for a second review by a different IMR doctor.  The request was granted. A second review was done. The result was the same. Authorization to provide care was again denied. Dutifully, the second IMR doctor notified the PTP, this time at 4:34 AM (message left on PTP's exchange).

* It was reported that these  two denials of care were made in a careless manner reflective of unprofessional conduct. No action was taken by the Medical Board of California (which said it didn't have jurisdiction).  The names of the IMR doctors whose poor judgement in this matter led to denials of care for injured workers were by law (SB 863) shrouded in secrecy.

* Utilization Review doctors need not be licensed in California. IMR doctors also do not need to be licensed in California.  Their denials of authorization for care may shut down treatment and lead to Lanier's and Baker's cost savings for employers -- at the expense of injured workers. Somehow this harmful situation is acceptable to the administration. Licentiates, subject to the discipline of the state medical board, might not be so cavalier about leaving messages about treatment rejection as telephone messages at 4:34am.

* Over the years a plethora of cases have been reported by this author and by other treating physicians. Some have been litigated successfully.  The ultimate reform has still to be made, i.e., repeal of SB 863 (De Leon) and formal licensing in California of any doctor who does either UR or IMR on injured workers in California.

References

TotalCapitol.com, "Utilization Review Hypocrisy, " 2 April 2014;

Workcompcentral, "Utilization Review: Hypocrisy in Velvet Gloves," 2014-03-26;

Workcompcentral, "Employers Line up in Opposition to 'Reform' Bill," 2016-06-23: SB 563 (Pan) would prohibit offering incentives to physicians conducting utilization review to deny treatment requests and would give Division of Workers Comp authority to review UR contractors to make sure they don't include such incentives"

COMMENT: while we also favor this bill we prefer repeal of the entire SB 863 which we no longer feel is being applied in good faith by insurers or employers. 

Workcompcentral, "How UR and IMR work together to deny injured workers care," 2014-08-18

"How to practice medicine without a license," San Francisco Chronicle, 8/29/08.



Thursday, June 2, 2016

FORENSIC AUTOPSY BILL, SB 1189, CLEARS SENATE, MOVES TO ASSEMBLY



SB 1189 by Senators Pan and Hannah-Beth Jackson passed the state senate on 2 June 2016. This bill was the subject of two previous stories in The Weinmann Report, 5/23/16 and 5/30/16. We told how an unusual death was discovered at Patton State Hospital where the decedent was found with his head shoved into a barrel, immersed in 13 inches of water, and how the decedent "had a cloth bag over his head and face." The manner of death appeared suspicious and unlikely a suicide. The examining pathologist said that the cause of death was probably drowning but that the "manner" of death was "undetermined." No specific mention was made that the death may have been at the hands of another. Homicide as a possibility wasn't mentioned.

The forensic autopsy to determine actual pathology and cause of death was done by a licensed M.D. The report stated the details of gross and laboratory examination. Toxicology screen was negative.
Witnesses in attendance included one other M.D., the investigator from Patton, two detectives, and the forensic specialist from the San Bernardino Police Department.

SB 1189 was amended twice,  lessening the authority of the examining pathologist, each time seeming to allow police attendance at a forensic autopsy even though the decedent in this case died while he was in their overall custody. Efforts were made in the original state legislation to ensure that forensic autopsies would be done by licensed physicians (that should read California licenses when the death occurs in California). Efforts were also made to ensure that law enforcement could be present at the discretion of the pathologist but not if the law enforcement entity was in charge of the decedent's well being during life. These issues became debating points as the bill moved through the State Senate.

SB 1189 now goes to the Assembly. It currently states that only licensed physicians may do autopsies. We suggest that "licensed in California" be plainly stated to avoid the debacle still encountered in Utilization Review where non-California licensed physicians who have not interviewed or examined a patient may overrule and deny care to patients who've been prescribed care by licensed California physicians.

In addition to the suspicious case described in this report and our two previous reports, there is another case that deserves mention. In Ventura County last year partial autopsies were done by assistants. The doctor who was Chief Medical Examiner at the time was on vacation. He rendered his decision on cause of death upon return from vacation. These two cases explain three sections of currently proposed legislation in SB 1189 and why those sections should be kept strong,

First: the cause of death and the manner of death should be determined by physicians licensed in California if the death occurred in California; 

Second: law enforcement personnel should be allowed entrance into the autopsy suite at the discretion of the pathologist when said law enforcement has completed specified required training and education related to pathology and autopsy protocol;

Third: law enforcement who were involved or responsible for the custody of a decedent who died in their care may not be present.

This writer recommends an aye vote for SB 1189 if these provisions are kept intact.



Monday, May 30, 2016

WHEN IS DEATH BY DROWNING DESCRIBED AS "UNDETERMINED?" HOW SB 1189 (PAN) COULD BRING CLARITY.

Our story datelined 23 May 16 described an unusual case of death by drowning wherein the subsequent forensic autopsy report obscured the cause of death.  The forensic autopsy is supposed to answer questions. In this case there is worry that it did not and that intervention by legal authority was contributory. The question then arises as to who is allowed into the autopsy suite during a forensic evaluation. For the decedent's autopsy in this case the attendees included the pathologist who did the examination, one MD witness, the investigator for Patton State Hospital, two detectives, and the forensic specialist from the San Bernardino Police Department. The question that has arisen is to what extent the presence of law enforcement intimidated the pathologist or to what extend commentary from the non-MDs may have contributed to an altered conclusion. 

Senator Pan's bill, SB 1189, is intended to resolve these issues. It is sponsored by the Union of American Physicians and Dentists which represents state and county employed pathologists. SB 1189, which has already been amended twice, reportedly would require that doctors doing the autopsy would not only be duly licensed in California as a physician and surgeon but would also "preferably" be a "diplomat of the American Board of Pathology." This provision would increase the level of expertise of pathologists doing forensic autopsies. It has since been amended out of the bill.

SB 1189 would also require that police and other law enforcement personnel who have completed specified training could be allowed into the autopsy suite "at the discretion of the forensic pathologist." It would also "prohibit law enforcement personnel directly involved with the care and custody of an individual who died due to involvement of law enforcement activity from being involved in any portion of the postmortem examination being inside the autopsy suite during the performance of the autopsy." 

These provisions are not favored by law enforcement. These changes are desired by pathologists who want to do their work under as scientific and non-political conditions as possible. The Counties, responsible for costs, say that all of these changes will exceed their budgets and want the costs taken over by the state which does not want these costs added to the state budget. 

SB 1189 got delayed in Senate Appropriations but cleared "approps" on May 27th. Its next stop should be a senate floor vote. This publication recommends an aye vote. SB 1189 would then go to the Assembly where we recommend that teeth be put back into the bill.

Forensic autopsies should be done by pathologists with special training in the discipline. Law enforcement personnel should be allowed into the autopsy suite only at the discretion of the pathologists doing the examinations. Reports that conclude that the "manner of death" is "undetermined" should be limited to those reports where every effort has been undertaken to reach a scientific conclusion. We conclude that the current report herein discussed is thorough in reported details but falls short with reference to its conclusions. SB 1189 would strengthen the hand of the forensic pathologists who are responsible for the reports. 





IS ABIM'S TRANSFER OF ASSETS TO OFF-SHORE ACCOUNTS A PROPER OR IMPROPER USE OF TAX AVOIDANCE?


On 26 May 16 we asked why the ABIM Foundation would ship financial assets overseas into off shore non-taxable accounts. We assumed that the purpose was to protect money from IRS scrutiny. We suggested that IRS needed to take a look at ABIM and its Foundation to see if the organizations were sufficiently compliant with 501(c)(3) to continue function with tax exempt privileges. After further consideration we've concluded that ABIM's move was in conformity with likely recommendations of its lawyers and tax consultants and that it can reasonably be alleged that at least $6.5 million dollars in assets if submitted to IRS scrutiny might not meet the standards of 501(c)(3) compliance and is consequently at risk not only for taxation but also for penalties and interest. The ABIM lawyers were not asleep at the switch although the ABIM's BOD, beguiled by years of success, may have been. It also appears that boarded physicians have lost standing and professional privileges enough to warrant FTC investigation for restraint of trade. It was pointed out that ABIM's Dr. Richard Baron was rewarded with $812,000 remuneration last year (no night call required although it's our opinion that there was plenty of night-worry). Likewise, we've pointed out how other board presidents and CEOs have been super-amply rewarded, e.g., IRS Form 990 says that $843,000 was paid in 2012 to the president and CEO of ABPN (American Board of Psychiatry and Neurology). These levels of remuneration may be legal but seem inconsistent with the tax exempt status of the named organizations' stated goals. That is why it's felt by Change Board Recertification et al that IRS and FTC scrutiny are indicated.

Thursday, May 26, 2016

WHY DOES THE AMERICAN BOARD OF INTERNAL MEDICINE FOUNDATION SHIFT ASSETS OVERSEAS?


More and more, healthcare is joining the industrial complex, read industrial-medical complex, similar to military-industrial complex, or, by way of abbreviation, MFF (Money First and Foremost).  Here's part of the inside story about ABIM: 

1) The ABIM founded the ABIM Foundation;
2) The ABIM Foundation shares its home address in Philadelphia with ABIM;
3) The ABIM Foundation's assets are recently reported to be $81,831,953;
4) The ABIM Foundation was initially funded by $55 million reportedly derived from examination and testing fees -- the $55 million came from the original ABIM which touted re-certification as though it were a public service or an effort to promote the public good by upgrading medical practice.
5) In effect, however, much of the money has been diverted into the waiting pockets of CEOs, board presidents, and other key officers and employees. By way of example, last year Dr. Richard Baron's remuneration was $812,000.  Meanwhile, countless physicians around the country were struggling to come up with enough money to "re-certify." To this extent, physicians with bona fide credentials were being squeezed out of practice in a form of trade restraint evidently not appreciated by the Federal Trade Commission (FTC). Organizations operating under the 501(c)(3) banner such as ABIM now appear to be working for goals not distinguishable from for-profit entities.

That's not all: A CONDO HERE, AN OFFSHORE ACCOUNT THERE ... 

6) The ABIM Foundation owns and/or operates a $2,356,267 condominium in downtown Philadelphia. The money to buy same was derived entirely or in part from the fees charged to hapless physicians who believed they had to recertify to stay in practice.

7) Now as the heat gets hotter, we're advised that the ABIM Foundation has transferred about $6.5 million into offshore accounts in the Cayman Islands and Dublin.

8) At a symposium in California about one year ago a document was distributed showing how one former ABIM physician officer was awarded stock options.

What's needed? HAS FTC AND IRS GIVEN PASSES TO ABMS ORGANIZATIONS? 

The Federal Trade Commission (FTC) should determine whether or not trade is being restricted; IRS, meanwhile, should examine whether or not the ABIM Foundation meets IRS 501(c)(3) requirements. Are its earnings lining the pockets of private shareholders or individuals?

For many observers the answer is yes. The amount of money paid out in personal remuneration appears exorbitant if the ABIM Foundation is a non-profit or charitable organization. It appears to many observers, this one among them, that IRS needs to review the tax classification of the ABMS boards and their associated organizations. At the same time, FTC needs to assess to what extent the covenants of MOC (Maintenance of Certification) are trade restrictive. 

References

Dr. Wes: "Standing up for the practicing physician"

ABIM Foundation Moves Assets Offshore, 5/20/16 

Change Board Recertification

Anti-MOC

Op-eds, The Weinmann Report, since 2012