Thursday, May 9, 2019


Reneging on AB 1107 (Chu)

In its original form AB 1107 was supposed to give relief to injured workers who were being wrongly denied access to treatment. It was supposed to ease the administrative burden on treating physicians whose time for patient care was being diluted by unreasonable requests for documentation to entertain Utilization Review (UR). The main thrust of AB 1107 was to facilitate treatment by primary treating physicians by exempting them from UR under specific circumstances. This plank has now been removed and replaced by language that may actually increase legal costs. 

As a result of the fear that access to treatment might become too easy for injured workers the bill got amended in committee with the acquiescence of the author to narrow the proposal but to allow stakeholders to challenge UR conclusions, said challenges to include more legal wrangling with even less access to care since treatment will inevitably be delayed, postponed, or just not done while the wrangling process is in play. 


It is true that this proposal gives the applicant or patient an opportunity that wasn't previously available but it does not facilitate prescribed treatment by treating doctors -- and that, my friend, was supposed to have been the raison d'etre of AB 1107 in the first place. 

In the recent King v. CompPartners Inc case, August of 2018, a deserving patient was harmed by wrongful utilization review when authorization for his medication was  withdrawn. The injured worker tried to use "tort" law to sue the Utilization Review Provider but lost that battle when the California Supreme Court decided that work comp law provides  exclusive remedy for employees who allege injury because of treatment denial by UR. This decision in turn caused one of the Justices to say that the law for injured workers should be revisited.

THAT was what AB 1107 initially sought to do. Instead, we have a compromise which does not help injured workers when they need treatment but which provides them and their lawyers a way to challenge UR decisions later. This solution is another in the sordid list ot "too little, too late." This writer recommends revisiting the bill again to review the circumstances under which Utilization Review can be set aside so that injured workers get needed care in timely fashion. There is still time to amend the recent amendment. 

Reports reviewed for this editorial include

"Will AB 1107 Trim the Claws of UR," workcompcentral column, 2019-04-18 by Robert Weinmann;

"Turning the Clock Back on State's Workers' Compensation System, workcompcentral column, 2019-04-24 by Carlos Luna; 

"Utilization Review Physicians May Owe Duty of Care to Applicants, King v. Comp Partners, 2016, 243 Cal. App. 4th 685, Mullen and Filippi. 

Monday, April 15, 2019

WILL AB 1107 TRIM THE CLAWS OF UTILIZATION REVIEW?



Under current law, employers are obliged to establish Utililzation Review panels whose purpose is to review, approve, modify, or deny diagnostic and/or treatment recommendations -- some doctors are felt to have a penchant for the task. Other doctors sometimes see these UR doctors as URDS (Utilization Review Denial Specialists).

AB 1107 (Chu and Reyes) would take away some of the unbridled authority now enjoyed by UR panels. For instance, some of the denials seem outright arbitrary from the getgo -- physical therapy has a limit of 24 sessions per injury but there are no peer reviewed studies that show 24 as a reasonable cut off limit. It is widely accepted that the limit of 24 is based on economics and has nothing to do with science or medical treatment.

Legislators who are often not familiar with health and safety issues may not know that Utilization Review doctors do not interview or examine the patients on whom their decisions fall. Patients are often astonished that this practice governs their lives and access to treatment. Patients usually believe that their doctors make the medical decisions -- in fact, they do, but Utilization Review is allowed under the law to unmake these decisions.


So here is what AB 1107 would do:


1) AB 1107 would make medical treatment that is prescribed by a PTP (primary treating physician) no longer subject to Section 4610 or subject to dispute on the grounds of medical necessity

a) if the employee suffers from a serious chronic condition, or

b) if the requested treatment has been previously authorized by the employer and if the employer fails to establish that the treatment is no longer indicated, or

c) if the employer has established a medical provider network pursuant to Sec. 4616, and that

d) if there is a dispute the appeals board shall resolve the dispute, and that

e) the employer is not precluded from objecting to a treatment protocol on grounds other than medical necessity.

While this legislation does not carry a Duty of Care provision, a provision that makes PTPs and UR doctors equally responsible under the law for their decisions, it carries enough clout to modify the sometimes arbitrary and arrogant conduct of the Utilization Review system.

An Aye vote is warranted.

REFERENCES

Utilization Review Physicians May Owe Duty of Care to Applicants, King vs. Comp Partners,, 2016, 243 Cal. App. 4th 685, Mullen and Filippi

Ten Years Ago: Out-of-State Evaluators Questioned, September 2018, 46 CWCR

All is Not Well in California and Hawaii, 14 Feb 2019, workcompcentral column, Weinmann

Duty of Care vs. Utilization Review, 2018-10-30, workcompcentral column, Weinmann




Wednesday, January 30, 2019


Duty of Care Revisited -- all is not well in Hawaii or California

Duty of Care (King v. CompPartners) was reviewed in this column on 10/16/18. The case involved the sudden discontinuation by a Utilization Review (UR) physician of patient Kirk King's klonopin. King filed suit based on negligence and malpractice because the UR doctor arbitrarily disconinued his medication and thereby caused him to have four epileptic seizures. Eventually the case went to the California Supreme Court which decided that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system."  The case was remanded to the District Court. King was barred from pursuing a tort claim. 

We wrote in this column that the decision protects UR physicians from malpractice lawsuits. But Justice Mariano-Florentino Cuellar wrote in his opinion that it might be time for the California legislature to take a look at the law since it could now be argued that protections in the law for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

It makes no sense that treating doctors are subject to Duty of Care, a protective legal concept that protects patients from cavalier care, whereas by contrast UR doctors, who do not interview or examine the patients, are not. 

It makes sense to change the law so that both UR and IMR (Independent Medical Review) doctors can be brought under the same Duty of Care umbrella as their PTP (primary treating physician) counterparts. Legislative action is now an issue in Hawaii and California. 

We got action, but maybe not with quite the slant originally sought.  In Hawaii debate now rages over whether or not Independent Medical Examiners (IMEs) should owe the same duty of care to injured workers as they do to their other patients. H 863 by Rep. Aaron Johanson and SB 1411 by Sen. Les Ihara in Hawaii would require that the IME be licensed in Hawaii, possess malpractice insurance, and "owe the same duty and standard of care to the injured employee as owed to a traditional patient." The bills would also make permanent an employee's right to record medical examinations.

In California, UR and IMR doctors are ripe for this type of legislation -- neither actually interviews the patient or even examines the patient -- but the California Supreme Ct has let 'em both off the hook. So the reviewers who know the patients less than the treating doctors get away with less review of their decisions because they're exempt from Duty of Care obligation. 

What is needed in both Hawaii and California is legislation that states that UR, IMR, as well as treating doctors, shall be subject to  obligatory Duty of Care.

We'll discuss whether or not an employee has a right to record a medical examination in another column. 

References

Workcompcentral News, "Lawmakers Bring Back Duty of Care Proposal for IMEs," 2019-01-28

The Weinmann Report, www.politicsofhealthcare.com, 2018-10-18  ("Duty of Care versus Utilization Review") 

Workcompcentral Column ("UR physicians do not owe injured workers Duty of Care"), 2018-09-18

The Weinmann Report, www.politicsofhealthcare.com, 2018-08-26
("Utilization Review physicians do not owe injured workers Duty of Care")




Wednesday, January 9, 2019

SURPRISE BILLING MAKES NEWS AGAIN


Under the direction of Insurance Commissioner Dave Jones the Department of Insurance has adopted new regulations intended to implement the provisions of Assembly Bill 72 (Bonta). For the legislative wonks among us, that means that Chapter 492, Statutes of 2016, now govern how "surprise billing" will be done. 

That means that AB 72 which is supposed to protect us from high medical bills when we get care from out-of-network providers has new hurdles to implement. For review, an out-of-network provider may be the doctor your Medical Provider Network (MPN) calls in to provide care for you when the MPN does not have a particular provider's specialty in the MPN. That's when the out-of-network provider may bill more than the MPN's subscribers expect. As of 1 January 2019 there are new regulations, e.g., average contracted rates approved by the Office of Administrative Law (OAL).

Here's how it'll work: let's say you, as a subscriber to Blah Blah MPN, get sick and require specialized medical care not available in your provider network. That circumstance is the cue for the MPN to call in non-contracted physicians. Under this circumstance the non-contracted or out-of-network physician is allowed to bill more than would be allowed if the service were prescribed by an in-network physician. Sometimes a whole lot more! Therein lies the mighty consumer squawk!

Under the new law the out-of-network provider may charge 125% of Medicare or the average contracted rate for the particular geographic area involved, whichever is more. The new regulations per Insurance Commissioner Jones set up methodolgy for this calculation. The resulting figure is the "average contracted rate."

The idea is to standardize rates and avoid disputes. Rate adjustment to recognize inflation will be taken into account. 

At the same time insurance plans and MPNs will supposedly be obliged to have adequate networks of in-network physicians so that calling in out-of-network physicians will be minimized. In theory it'll be the obligation of the network to provide timely care via in-network contractors. That's where the real rub is -- the statement we have from the insurance commissioner says "insurers are required to maintain an adequate provider network to ensure timely access to care for their policyholders." The statement also says that "when patients are forced to go to out-of-network at an in-network facility, the patient should not have to pay more for their care and the providers should be reimbursed fairly (italics added)."

Aye, and there's the rub! The language we want to see in law on this matter should not say "should," it should say "shall." This one 
word would convert a wishy-washy statement into a firm statute. 

Under AB 72 we already have language to establish an Independent Dispute Resolution (IDR) mechanism. This item could be the vehicle that establishes fair and equitable reimbursement compliant with the aforementioned Chapter 492.

Governor Newsom has already signed an Executive Order that establishes a state-run purchasing program for prescription medications. Now it's time for follow-up. 

The Weinmann Report (www.polilticsofhealthcare.com) calls upon Governor Newsom to sign an executive order to require MPNs and insurance providers to be fully staffed with all specialties. Otherwise we've left a huge loophole open for provider networks to skimp on staffing and be obliged to use out-of-network providers. 


Friday, November 23, 2018

BURNOUT AND THE PACIFICATION OF PHYSICIANS

-

The "Pacification of Physicians" is the process used by insurers, adjusters, politicians, and others to take down physicians who fail to behave like lapdogs to paymasters. 


"Burnout" is the name given to physicians who because of increasingly arduous demands quit the profession, at least, the care-giving part of it.


Physicians, afraid of consequences if they speak up, step aside from controversy.  That's when administrative managements rush to the front. When that happens physicians find that their treasured professionalism gets trampled. Consultatons are simply eliminated from Medicare. In Workers Comp, Utilization Review is used to demolish treatment protocols.             


Physicians have had a modicum ot success in repelling the likes of Maintenance of Certfication (MOC) even though opposed by smooth talking para-professionals buttressed by self-inflation and the crafty infusion of money advanced by slick corporate interests. 

As for "burnout" talk, The American Medical Association (AMA) points out that burn-out of physicians leads to increasingly early retirements. The American Academy of Neurology (AAN) tags along, going so far as to install a Burnout Task Force. A recent quote from NEUROLOGY TODAY was that women are more burned out than men. It was discovered that women who responded to a survey on burnout were about 7 years younger than their male counterparts. Factors contributing to burnout were listed, e.g., "emotional exhaustion" and "fatigue." The link to disappointing remuneration -- we mean payment -- was acknowledged.

It was mentioned that male neurologists tended to take refuge in personal hobbies while the women shifted their attention to teaching and administration. In a symposium sponsored by the Union of American Physicians and Dentists (UAPD) the increased proclivity to suicide was discussed. In fact, the UAPD recently sponsored an interdepartmental CME on "burnout" at Harbor Hospital. In NEUROLOGY TODAY, 11/15/18, it was stated that "women were more likely to mention suicidal ideation." Men tended to dwell on the suicides of colleagues as opposed to their own morbid thoughts. 

In PRACTICAL PAIN MANAGEMENT, April/May 2018, the AMA was credited with helping physicians "by advancing initiatives that enhance efficiency, professional satisfaction, and the delivery of care." For this writer, that's hogwash, not clout. It is clout that's needed, not effete efforts from the parlor.

While debate and legislative effort has a place what physicians need is a fight-back model. That means organizational protests and job actions. Active protest is the name of the game. Absent a high level of protest physicians will end up providing increasingly efficient and depersonalized care at their own expense. That means squeezing more and more patients into increasingly narrowed time slots. Legislators haven't a clue because nobody tells Senator Blowback that he has used up his RVS allotted time and that he has to get out so the next patient can enter. 

The inevitable result is disappointment among physicians and patients alike. Better to follow the example of Macbeth: "Whiles I see lives the gashes do better on them." 

Physicians need to adopt this combative mode while there's still a combat in which to engage. 

References

UAPD Triennial Convention, 26 Oct 2018

Documentary movie on burnout, "Do No Harm," by Robyn Symon (feature length film exposing the silent epidemic of physician suicide, winner of 2016 Roy W. Dean Grant for feature film  documentary)

Practical Pain Management, April/May 2018, "Dousing the Physician Burnout Epidemic: An AMA Perspective," by David Barbe, MD


Neurology Today, 15 November 2018, "Feeling Burned Out? Why Your Age and Sex May Make a Difference," by Gina Shaw





Tuesday, October 16, 2018

DUTY OF CARE VERSUS UTILIZATION REVIEW: Corrective legislation is indicated (revised from earlier article)


Worker's Malpractice Action Against UR Doctor Comes to an End, viz., workcompcentral, 2018-16-12. This unfortunate decision has triggered interest for new legislation to correct wrongful and abusive denials of care to injured workers. 

The gist of this case (King v. CompPartners, No. E063527, 10/10/18), involves the unfortunate abrupt and arbitrary discontinuation of patient Kirk King's klonopin with the even more unfortunate triggering of four epileptic seizures. 

For review, here's the facts: Kirk King suffered back injury at work. He was prescribed klonopin to relieve anxiety and depression caused by chronic back pain. In July of 2013 the UR physician working for Comp Partners decertified the medication without advance preparation such as advising the patient, preparing for alternative treatment, or warning the patient about sudden withdrawal. King then had four epileptic seizures. King filed suit based on negligence, malpractice, and emotional distress. Defendants demurred, the Superior Court Judge sustained the demurrer, the 4th District Court overturned the Judge and then the California Supreme Court overturned the District Court by ruling that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system." The case was remanded to the District Court. King was barred from pursuing a tort claim. So much for Kirk King and his seizures? Maybe not. 

Although the ruling appears to establish that the alleged malpractice was protected by law and is unassailable in the courts, there's a game-changer, e.g., Justice Mariano-Florentino Cuellar's statement said that the protections for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

Language to challenge legislators to change the law so that Utilization Review doctors are bound by the same Duty of Care as Treating Physicians has already been submitted to selected legislators. 


It makes no sense that treating doctors are subject to this level of practice whereas the UR doctors who may alter their treatment decisions are not. 

References


Workcompcentral News, "Worker's Malpractice Against UR Doctors Comes to an End," WEST, 2018-10-12 (readers can click on the full court decision at bottom of this reference)


Workcompcentral Columns, "UR Physicians Do Not Owe Injured Workers Duty of Care," 2018-09-18 (reprinted from The Weinmann Report, www.politicsofhealthcare.com, 2018-08-18)








Sunday, August 26, 2018

Utilization Review Physicians Do Not Owe Injured Workers "Duty of Care"



That Utilization Review (UR) physicians do not owe a duty of care to injured workers can reasonably be deduced from the recent California Supreme Court decision which trashed Kirk King's tort claim over an incorrect and harmful UR decision.

In a nutshell, Kirk King sustained back injury in 2008 that led to chronic pain associated with depression. Klonopin was prescribed by his treating physicians who interviewed and examined him. He did well on this medicine for two years. That's when Dr. Naresh Sharma decided without interviewing or examining the patient that the klonopin was not medically necessary. The hitherto authorized medication was then summarily discontinued. The sudden withdrawal of medication led to King's having four seizures. 

King and family asserted that Dr. Sharma and his Utilization Review Organization (URO) employer had acted negligently and since Sharma was working for the URO known as CompPartners both deserved to be disciplined and sued.

Not so said the court. Hiding behind the mantle of law, the justices totally ignored the patient's plight. Their ruling side-stepped the tort issue and said instead that the Exclusive Remedy for this type of dispute is entirely within the purview of the utilization review process. Too bad for Kirk King. All  the better for the corporate interests and the employers that control and operate UROs.

On the other hand, the court noted the utilization review process may not be working as it should -- an open invitation for new legislation.

Justice Mariano-Florentino Cuellar was quoted in Workcompcentral, 8/24/18 by Greg Jones as saying that protections for injured workers "may not be set at optimal levels and the Legislature may find it makes sense to change them"-- another open invitation for new legislation to revisit the authority of utilization reviewers and their UROs. 

Changes should be introduced for legislation in 2019

Using Gut and Amend techniques as mentioned in our previous column on SB 790 is one way these changes can be made. We would of course expect employers to suffer their own seizures at the thought of it. 

Here's our Big Five of Recommended changes: 

Change Number One: UR doctors should be obliged to carry the same duty of care that is now borne by treating doctors. 

Change Number Two: UR doctors should be licensed in the states in which they provide UR opinions and should be subject to that states medical board for discipline just as treating physicians already are.

Change Number Three: UR doctors should be obliged to interview and examine their patients.

Change Number Four: Employers should be penalized if they allow treatment to be altered or terminated before a replacement care plan has been approved by the treating physician(s). Actually, there already is such a provision only as in the Kirk case it is usually ignored.  This example shows how laws without teeth can safely be ignored. 

Change Number Five: Wrongful and/or harmful UR decisions should increase the injured worker's disability payments.

References

"High Court Rules Exclusive Remedy Precludes Tort Claim Over UR Decision," workcompcentral news article, Greg Jones, 08/24/18

"Utilization Review as a gift to insurance companies," posted by bobweinmann, 03/11/2012, The Blog/Total Capitol

"Utilization Review: Hypocrisy in Velvet Gloves," column in workcompcentral, 03/26/14 (also posted on The Weinmann Report, www.politicsofhealthcare.com)