UTILIZATION REVIEW AND THE CALIFORNIA PROFESSIONAL FIREFIGHTERS

On 14 February 2012 Assemblyman Paul Fong introduced AB 1687 at the request of California Professional Firefighters. The purpose of the bill is to improve how Utilization Review (UR) is applied in California's workers comp system. Currently the UR process may be used by insurance companies to delay and deny care to injured workers. Doctors retained by the insurance companies and their affiliated UR companies are not required to have California licenses. If these doctors make mistakes, wrongfully deny care, and cause harm to injured workers, they do not answer to the Medical Board of California as would treating doctors, known as PTPs or Primary Treating Physicians, who are licensed in the states in which they practice.

Non-California licensed doctors do not answer to their own state boards because out-of-state medical boards do not have jurisdiction in California. Insurance companies derive financial benefits from this method because they don't pay for care that has been disallowed by the unlicensed doctors even if the care was actually prescribed by licensed doctors. This form of retroactive denial of care has previously been discussed in these pages.

Efforts to pass legislation to correct this situation by requiring UR doctors to be licensed in California have been successfully opposed by insurance companies who easily convinced Gov. Schwarzenegger to deny access to care to injured workers but who also persuaded Gov. Brown to veto AB 584 in 2011 (AB 584, also by Paul Fong, would have required UR doctors who do California cases to be licensed in California).

Fong's current bill, AB 1687, says that

"communications or responses regarding decisions to modify, delay, or deny medical treatment services requested by physicians also shall include a clear and concise explanation of the available options for objecting to the modification, delay, or denial of those medical services."

It does not say that the UR doctors who make these decisions should be licensed in California. This omission is the Achilles' heel of AB 1687.

Without this provision the UR doctor and the medical director employed by the UR company, in turn retained by the insurance company, may assert that whatever reason is presented for delay or denial of care is "clear and concise." The change in language requested by the California Professional Firefighter is a step in the right direction and deserves support even though it isn't strong enough to challenge wrongful and harmful decisions by non-California licensed doctors who can simply state that their reasons for delaying or denying care are "clear and concise."

Rather than get involved in debates about whether or not language was "clear and concise," beleagured doctors who prefer to practice medicine will leave the system. The large clinics that see patients at breakneck speed will inherit the patients. Injured workers will once again inherit the wind.

UTILIZATION REVIEW (UR) BY NON-CALIFORNIA LICENSED DOCTORS

AB 1687 (Fong) misses the target

AB 1687 states that employers, insurers, or other entities shall employ or designate medical directors who hold unrestricted California licensure to practice medicine in California pursuant to the relevant Business and Professions Codes.

However, it is already law that the medical director must be licensed in California. What is not required is that the doctors retained by the medical director to do utilization review (UR) also be licensed in California. The currently proposed bill overlooks this loophole by not mentioning the inconvenient fact that companies may use doctors without California licenses even though the Medical Board of California has repeatedly stated that UR is part of medical practice. What is needed is a requirement that any doctor who does utilization review in California must be licensed to practice in California. Language so stating should be amended into the bill.

The crux of the issue in past years was precisely this point. The insurance companies skillfully and successfully opposed requiring California state licensure for UR doctors. Three bills so stating have passed the California legislature: AB 2969 (Lieber), AB 933 (Fong), and AB 584 (Fong). The first two were vetoed by Governor Schwarzenegger, no surprise there since his mission was to protect the insurance companies. The last one was vetoed by Governor Brown, much to the astonishment of many who did not think he'd bend to insurance company wishes. However, lobbying credit has to go to the insurance companies -- they succeeded in convincing two different and supposedly opposed administrations to veto nearly identical bills that would have assisted injured workers' access to care.

Our judgement is that AB 1687 is inadequate and disappointing. We await an amendment stating that UR doctors play by the same rules as treating doctors and must be licensed to practice in California.

Stay tuned. We'll have more to say on this subject.

"WHAT WE DON'T WANT IS PEOPLE MAKING ... DECISIONS BASED ON MONEY INSTEAD OF CARE OF THE TROOPS," intoned Representative Norman Dicks, D-Belfair

In our previous column we discussed how insurance companies can twist policies and distort the Affordable Care Act so that denials of care replace rationing. Now we have a situation wherein an actual diagnosis is rationed if not tossed to the winds, i.e., medical treatment for post-traumatic stress disorder (PTSD) in military veterans. This diagnosis can cost from $400,000 to $1.5 million in lifetime benefits.

Rep. Norm Dicks asked Army Surgeon General Lt. Gen. Patricia Horoho to explain how 14 soldiers diagnosed with PTSD had their diagnoses retroactively changed by a forensic psychiatry team in such a manner as to reduce the veterans' disability benefits.

This method replaces actual rationing of care because it allows forensic personnel concerned with costs to overturn a medical diagnosis upon which actual treatment was based. The implication is that the injured soldiers were incorrectly treated and were then awarded excessive benefits.

Keep in mind that the so-called forensic team does not interview and examine the patients -- what they do is a coding audit to determine if the submitted paperwork justifies the diagnosis. Here's an example: post-concussion head syndrome, not a PTSD diagnosis per se, is listed as ICD-9 code 310.2. This diagnosis may include headaches, vertigo and cognitive loss. But if the paperwork reflects headache such that a forensic team can claim with a modicum of reasonable medical probability that the formal diagnosis of 301.2 wasn't fully documented, the diagnosis can be altered to one less remunerative in terms of treatment and disability benefits, e.g., headache, 784.0 -- in this way the payer, whether government or a private insurance company, saves money, increases corporate compensation for the private insuror, and puts the screws to the injured party, a private patient or a wounded soldier.

While we appreciate Rep. Dicks' intervention for the soldiers, we ask where he stands on repeal of the Independent Payment Advisory Board (Section 10320) which is part of the Affordable Care Act for which readers will want to know how Dicks voted. Our expectation is that Rep. Dicks cares as much about Medicare recipients and patients generally as he does about PTSD veterans and their disability remuneration.

If Rep. Dicks wants to stop the deprivation of disabiity benefits to sick and injured soldiers, he just might want to do as much for sick and injured civilians. So might also my own Congressional representantive, Anna Eshoo, D-Ca.

How about it, Norm, Anna, and all other Members of Congress?

References

"Rationing Comes Home to Roost in the Form of Denial of Care," posted originally on www.politicsofhealthcare.com, 2/17/12, reprinted workcompcental, 2/24/12

"Army insists doctors at Madigan aren't discouraged from diagnosing PTSD," The News Tribune, by Adam Ashton, 2/10/12

"Head of Madigan removed from command admid PTSD probe," Seattle Times," 2/20/12, by Hal Bernton

RATIONING COMES HOME TO ROOST IN THE FORM OF DENIALS OF CARE

In these columns (www.politicsofhealthcare.com) we've previously pointed out how Utilization Review in California is twisted and turned to deny care to injured workers. We've also shown how the Affordable Care Act, aka Obamacare, contains a not-so-subtle rationing section known as the Independent Payment Advisory Board (IPAB) pursuant to Section 10320 of the ACA.

What's next on the Denial Menu is a method to deny care not only to injured workers and Medicare recipients, but to anyone, anywhere, anytime. The insurance companies are adopting plans based on science but far from scientific. Here's how such plans work and how they'll be used in compliance with the ACA.

Currently, insurance companies are allowed to warn subscribers about medications, adverse effects of medications, and how some medications may have ill effects if combined with certain other medications or substances. In the media limelight just now is how xanax and alcohol if taken together may prove fatal.

The program seems protective; however, practicing physicians know how insurance companies use this concept to push generic medications over trade-name products that treating physicians feel are superior or to deny a recommended treatment for another that costs less.

Practicing physicians have also observed that specific treatments with comparatively lower levels of success than others, sometimes the best bet for certain patients, may be denied because their overall success rate is less than a pre-designated level of success, say, 50%. But in some patients there may not be a better choice.

Delay and Denial Menus (DADMs)

This concept is being used to deny or delay diagnostic and treatment protocols, e.g, tests physicians use to decide upon diagnosis and regulate treatment. These Delay and Denial menus mean that insurance companies will not be obliged to pay for tests or treatments that don't measure up to internal business protocols that need not be explained or even made known to the public or to the companies' own subscribers. Here's how it'll work:

Insurance Company UltraNix may give its own grades to various diagnostic tests and treatments. Those tests and treatments graded "A" or "B" will get covered, e.g., maybe 100% for "A," maybe 75% for "B," maybe less for "C," and not at all for "D." The cut-off levels are decided by the insurance companies. Most likely to be effected will be cancer screening and other conditions where the last scientific word hasn't yet been written. One may reasonably ask why insurance companies shouldn't wait for the last scientific word. The answer is that science is slow, e.g., aspirin for protection from heart disease wasn't fully accepted until comparatively recently although medical and scientific data in support of this use was already in circulation for many years.

Because of the ACA such restrictions which amount to rationing may now enjoy the force of law despite President Obama's solemn promise in the autumn of 2009 that "I will ensure that no government bureaucrat gets between you and the care you need."

The restrictions shoved down subscribers' throats will not be subject to debate, disclosure, or revision -- these restrictions will be equivalent to "black box" recommendations just as those made by the Independent Payment Advisory Board (IPAB) even though President Obama recently promised in his State of the Union address that "I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage or charge women differently."

One result of the ACA is to permit insurance companies to adopt measures to restrict benefits without actually cancelling policies. If insurance companies can deny claims based on internal protocols of their own and not cancel policies, they'll have the best of both worlds, i.e., your premiums and no obligation to pay out on claims for diagnostic tests, treatment protocols, or medicines.

One caveat: the insurance companies will be off-the-hook only with reference to paying for the diagnostic test or treatment that one's doctor may have prescribed. Patients who want to pay 100% for something that their insurance companies have refused to cover will still be able to do so.

If this concept sounds like a scam, that's because it is. What is sad is that it fits into the Affordable Care Act which allows for precisely those denials of care that President Obama said he would not tolerate.

Other References by Robert L. Weinmann, MD

San Jose Business Journal, week of August 3, 1987 ("... it is our business to know which contracts our doctors sign"

San Jose Mercury News, April 2, 1993, "Managed care: the dark side" ("... the plan's doctors ... agree that the diagnostic tests and treatment plans they may prescribe may be abbreviated or disallowed by the plan's cost controllers")

Congressional Record, May 27, 1993 (above, reprinted, with comment from Pete Stark, MOC, D-CA)

San Francisco Examiner, January 12, 1996, "Medical red-lining :'Economic credentials' for physicians"

Congressional Record, 9 September 1998 (above, reprinted, with comment from then MOC Tom Campbell, R-CA)

The Hill, Washington, DC, 9/16/09, "What Obama should've said about health reform"

POLITICO, 12/14/2010, Washington, DC, "How to ration care without using the 'R' word"

POLITICO, 01/18/2011, Washington, DC, "Section 10320 of the Affordable Care Act Should Be Repealed First"

POLITICO, 07/14/2011, Washington, DC, "GOP dilemma: How to oppose IPAB: The Independent Payment Advisory Board (IPAB) is bad for your health"

The Hill, Washington, DC, 12/02/12, "Patient advisory board will put cost before care"

PRESIDENT OBAMA'S OBLIQUE REFERENCES TO HEALTHCARE

"I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently," was how President Obama summed up the ACA (Obamacare to opponents). It is why many believe the president may feel that the ACA in its present form overshot the mark and is prepared to reform it if the ACA survives the courts. We are particularly interested if Congress is exempting itself, staff, and favored others from coverage by the ACA, supposedly so good that it was made mandatory for the rest of us.

We also remember something else President Obama said in the autumn of 2009: "I will ensure that no government bureaucrat gets between you and the care you need." The trouble is that the IPAB does just that, "gets between you and the care you need." That is reason enough to repeal the IPAB forthwith (or mabe even a tad sooner!).

Stay tuned! We're not finished with this subject.

See also my comments in The Hill Newspaper, Washington, DC, 1/27/2012, http://thehill.com/blogs/healthwatch/politics-elections/206325-obama-largel...

WHERE WAS OBAMACARE IN THE PRESIDENT'S STATE OF THE UNION ADDRESS?

OBAMACARE is correctly known as the Affordable Care Act (ACA) or as the Patient Protection and Affordable Care Act, nick-named "Pee-Pahka" after its initials.

Precious little was heard about the ACA in the president's State of the Union speech. Some pundits suspect the president is preparing to slip away quietly from support of the ACA since specific parts of the bill are under bipartisan attack, e.g., Section 10320 which sets up the Independent Payment Advisory Board (the IPAB). The IPAB was originally the IMAB, Independent Medicare Advisory Board, derisively known at the time as Euthanasia for the Elderly. Disguised now as a more equitable board, the IPAB still aims its arrows straight for the hearts of the elderly. In fact, the IPAB would be made up of appointed persons, none elected, and would not have to be comprised of physicians. The IPAB would appoint bean counters, annoint them as health care deciders, and give them the power to undercut the best efforts of caring physicians.

The purpose of the IPAB would be to reduce costs and to decide which procedures in medical care, what facilities, and which equipment used in patient care should be considered medically necessary. There is resistance in Congress since an effort to repeal Section 10320 surfaced long ago, viz., Sen. John Cornyn, R- Texas. The president expects a tough time for re-election. Speculation is that he may not want to drag the ACA, mocked as Obamacare, behind him as he swims for political survival. Neither does he want to abandon it.

Earlier references to the ACA and Sec. 10320 appear in this blog, issues of 4/6/11 (Obamacare revisited), 1/18/11 (Repeal Section 10320), and 11/04/10 (Obamacare needs instant revision).

WHEN IS A CONCUSSION NOT A CONCUSSION?

We can expect concussions not to be concussions whenever they're called by another name, for instance, elbow or knee injury, or even neck contusion, or, for that matter, head injury without concussion. Because of careless legislative writing, Assemblywoman Hayashi's bill, AB 25, now law, is expected to have consequences unanticipated by legislators. In football, some head injuries occur after a tackle when the player falls backwards, bouncing his head against the turf, but not getting overtly knocked out. The American Academy of Neurology has defined such an injury as one in which the injured party has had his "bell rung." Such an injury may be defined as concussion without loss of consciousness.

Up until 1 January 2012 when Hayashi's legislation became law, decisions could be made on the field, sometimes incorrectly. Now the onus has changed: once a player is removed because of a suspected concussion, legislative counsel's digest of the bill states that "the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance (italics added) from a licensed health care provider ..." This bill, supported by well meaning but naieve medical organizations, lends itself to being circumvented by players eager to return to the game and by coaches and team managers who want their stars on the field and not on the bench. Waiting for "written clearance" may be felt by some to take too long because players won't be able to get "written clearance" soon enough. Allowing players to return without "written clearance," even when clearly safe to do so, will be a violation of the law subject to criminal penalties.

The law does not specify that neurological specialists must be involved. A designated "licensed health care provider" may ask for clearance by a neurologicacal specialist, but that step isn't mandated in the new law. Eager players and coaches may be tempted to find ways around this legislation. Even so, if a concussion has occurred, the new law as written should be protective of injured players and should work if all games are attended by "a licensed health provider" who has back-up from neurological specialists. But this last step is not mandated in the new law. Furthermore, even if it were, safety in clearing the player to reurn, given current medical and legal standards, might very well require a player to miss a game or two while he or she goes for a brain scan or other neurological testing. We will soon enough find out which schools want to take a chance and return players too soon based on diagnoses other than concussion, for instance, neck contusions for which players can be returned to the field without written authorization. Sooner or later a mistake in judgment will result in violation of the law and criminal prosecution. That's when doctors will think that ordinary civil litigation known as malpractice will be a cakewalk by comparison. If they have followed the law as written, our expectation is that criminal liability should be avoidable but that increased civil litigation is likely.

Push will come to shove when schools and coaches look for ways to avoid pulling athletes out of action because of possible concussion injury because they know once they do they may not be able to get them certified in time for the next game. The spectre of "unanticipated consequences" may open the door to criminal liability.