Friday, September 16, 2016

VETO OR AMEND AB 72 (Bonta)


This memo was sent as a personal message to Governor Brown re AB 72 (Bonta) earlier this month just after the bill was enrolled and sent to his desk. Now we make it public:

"Because AB 72 leaves 'network contraction' as a viable business method, eliminating only the 'surprise billing' element,  if you let AB 72 slip into law, you might want to add a memo of your own that there should be follow-up legislation to make sure that the medical networks are fully staffed. 'Fully staffed' means that they include a complete range of medical and surgical specialists. 

Meantime, we recommend a veto."

Robert L. Weinmann, MD, Editor, The Weinmann Report (www.politicsofhealthcare.com) 

Reference for our readers:

Our original piece was posted on-line at www.politicsofhealthcare.com on 12 August 2016.  The title was "Assembly Bill 72 (Bonta): Oppose Unless Amended, a pending bait and switch bill," in other words, a bill to disallow "surprise billing" while leaving the underlying mechanism enabling appointment of out-of-network doctors intact. The mechanism is called "network contraction" and is also  known as "in-network cost sharing." It allows networks to understaff by purposefully not carrying enough network doctors to cover all medical and surgical specialties. It's a profitable network move at the expense of services to network subscribers or customers who don't know their insurance plan is not required by law to retain a full network of physicians and surgeons. So here is the amendment we recommended as of 8/12/16:

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.

9/23/2016 -- flash! Governor Brown signed AB 72 into law. There are no provisions in the bill to prevent corporate greed, e.g., "network contraction." The bill is aimed squarely between the eyes of "out-of-network" providers.

Thursday, September 1, 2016

INVESTIGATING WORKERS COMP DENIALS OF CARE ON TELEVISION AND RADIO


The undersigned recently participated in two investigative stories, one on television, NBC Bay Area, the other on radio, KPFA, 94.1 Wednesday, 8/31/16.

The NBC Bay Area story was a three-part investigation of workers comp. The focus was bureaucratic delay and denial of care to injured workers in California. Here are the links: Dozens of Injured San Jose Firefighters Denied Workers' Comp Treatment; Workers' Comp Drags Out Medical Care, Injured Workers and their Doctors Say; and Injured Workers Face Stacked Deck During Workers' Comp Appeals Process, Critics Say.

The KPFA 94.1 story was broadcast on WorkWeek Radio. This program addressed "the growing crisis for injured workers" in California and revealed that Maximus, which does so-called "independent medical review," was paid $40 million in a "no bid contract to make determinations of whether workers were entitled to medical care." The story is a production of Work Week Radio, workweek@kpfa.org

The undersigned commented on SB 1160 (Mendoza) and on the continuing travesty that allows Utilization Review (UR) and Independent Medical Review (IMR) doctors to determine California-based cases even though these doctors may not be licensed in California and aren't subject to the state medical board. While SB 1160 may actually improve UR somewhat, its lien provisions harm access to care for injured workers. 

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.