KENTUCKY MEDICAL BOARD JOINS TEXAS IN REQUIRING UTILIZATION REVIEW DOCTORS TO BE LICENSED IN THE STATE WHERE THEY DO UTILIZATION REVIEW FOR INJURED WORKERS

by Robert L. Weinmann, MD

In 2005 the Office of Administrative Law in California allowed the Schwarzenegger administration to implement an interpretation of the law to permit doctors without California licenses to do utilization review for (I would say "against") injured workers in California.

This change in how the law is used and implemented has been beneficial to insurance companies and utilization review companies that have used this controversial legislative interpretation to delay and deny payments for diagnostic testing and treatment to California's injured workers. The California Society of Industrial Medicine and Surgery (CSIMS), the California Physical Medicine and Rehabiliation Society (CPMRS) and the Union of American Physicians and Dentists (UAPD) are sponsoring legislation to correct this abuse.

The California Medical Association, the Medical Board of California, and the California Labor Federation are among the several organizations that have previously determined that utilization review doctors ruling on injured workers in California should be licensed in California.

The Schwarzenegger administration is beleagured by its convenient cooperation with the interests of insurance companies -- the American Federation of State, County, and Municipal Employees (AFSCME) and the UAPD have repeatedly pointed out this connivance. The Schwarzenegger administration is also encumbered by its support of environmental changes considered too liberal by his party's right wing. As a result, the Schwarzenegger administration tries to be as close to right-wing business and management interests as possible. The idea is to be in position to help the Republican party in the next election. Insurance company interests persuaded the Govenor to veto previous legislation to level the playing field for injured workers.

In 2007 there was a mini-repudiation of Governor Schwarzenegger's policy when Texas made it a matter of law that utilization review doctors had to be licensed in Texas. The Schwarzenegger administration considered the change in Texas law to be aberrant and said that its own policy in California reflected "best practices."

Wrong. Further repudiation of the Schwarzenegger administration now comes from Kentucky. Preston F. Nunnelley, MD, President, Kentucky Board of Medical Licensure, disclosed on 27 October 2009 that "the Board determined that anyone performing or submitting peer reviews on Kentucky residents must be licensed to practice medicine or osteopathy within the Commonwealth."

Last year Governor Schwarzenegger vetoed AB 2969 (Lieber) which would have corrected the administration's current policy (see "How to practice medicine without a license," San Francisco Chronicle, 8/29/08) by requiring doctors who do utilization review re injured workers in California to be licensed in California.

This year AB 933 (Fong) passed the Assembly and awaits hearing in the State Senate in January, 2010. The Governor previously indicated he was prepared to veto this bill. AB 933 by Paul Fong is similar to Sally Lieber's bill. It would also require doctors doing utilization review in California to be licensed in California.

We don't know if the events in Kentucky will cause the Governor to revisit his concept of "best practices" or if he'll continue to bow down to insurance company interests. We don't advise holding one's breath awaiting the outcome.

SECRET NEGOTIATIONS EXPOSED: MANAGEMENT COLLUDES WITH LABOR

by Robert L. Weinmann, MD

In an effort to put more money into Permanent Disability (PD), certain key lobbyists from powerful interests in organized labor have colluded with Big Business to draft secret proposals that will inevitably harm injured workers and their doctors while providing minimal palliation to the lingering PD crisis brought about by Gov. Schwarzenegger and his administration. The background for the current maneuvering is SB 899, the refusal of the current administration to reform utilization review, the refusal to let injured workers pre-designate their own Primary Treating Physician (PTP), and the recent Almaraz-Guzman decision that Big Biz and the insurance industry abhor.

An amendment to be heard in the Assembly this week may be offered to SB 186 (DeSaulnier). Here's the scoop:

Under current law the PTP may prescribe diagnostic testing and treatment. But the PTP's decision may be delayed or denied by Utilization Review (UR). If the PTP and UR disagree, one method of resolution is to get a Qualified Medical Evaluation (QME). The QME reviews the reports filed by both the PTP and UR, interviews and examines the injured worker, and makes a definitive conclusion. The amendment about to be offered would delete the QME step and would substitute a paper-review-process known as an Independent Medical Review (IMR). The IMR process does not include interview and examination of the patient. It is a less expensive process that is also more likely to result in denial of care. The money saved would ostensibly go into the PD pot. The IMR and the UR approaches are similar in that neither requires re-interview or further examination of the injured worker. Both are paper decisions. This process is favored by the private insurance industry because it reduces costs and adds to corporate profit.

The IMR process is laden with potential mischief because it takes away the injured worker's best chance to be heard and examined again. The IMR process carries with it a large dose of potential medical mischief not only for wrongful denials of injured workers but also for liability to the PTP for an accusation of malpractice for treatment recognized as needed but not provided.

The amendment also envisions lien changes. Under current law many doctors who know that treatment is indicated and will eventually be recognized as such simply provide it in timely fashion even though it has been denied by UR -- they seek reimbursement afterwards by lien. The amendment or amendments to be offered to SB 186 (DeSaulnier) would discourage liens and further reduce access to care for injured workers.

The recommendation of The Weinmann Report is to ask your state senator or assembly representative to oppose these proposed amendments. If you are not sure who that is, try http://www.leginfo.ca.gov/yourleg/html. You may want to copy Sen. DeSaulnier (senator.desaulnier@sen.ca.gov), the Senate Labor and Industrial Relations Committee (gideon.baum@sen.ca.gov) and The Assembly Insurance Committee (markrakich@asm.ca.gov).
Faxed copy has the advantage of being signed.

MEDICAL CARPETBAGGERS COST CALIFORNIA MONEY by Robert L. Weinmann, MD

In a quiet and underpublicized scheme, Gov. Schwarzenegger's administration is causing the State of California to lose money. Here's one of the methods it uses that pertains to physicians, psychologists, and injured workers.

The Schwarzenegger administration, repeatedly alleging fiscal responsibility to the State of California, allows doctors without California licenses to practice medicine in California without paying fees to the Medical Board of California (MBC). At a cost of $808 dollars per license, it takes only 1,000 such licenses for MBC to lose $808,000. Not enough to make a difference, say Schwarzenegger's devotees. But enough to have caused the MBC to assert that it can't separate valid complaints against doctors from invalid ones for the purpose of posting one and not the other. Hence, the MBC allows both kinds of reports, ones validated against doctors and ones proved invalid, to be posted on official websites. Careers are ruined on the altar of fiscal incompetence.

Why can't the MBC separate valid from invalid complaints and allow only the valid complaints to be posted? The answer reported to legislative committees seeking to pass corrective legislation (e.g., AB 245, Ma) is that MBC cannot afford the expense of hiring clerical personnel to do the paperwork. In other words, the MBC is broke.

Meanwhile, Gov. Schwarzenegger persists in opposing legislation that would require doctors who do Utilization Review (UR) to be licensed in California and to pay fees to the MBC. The Governor persists in this stand even though his own MBC has stated that UR is part of medical practice. UR doctors have the authority to delay, deny, modify, or approve diagnostic and treatment prescriptions from doctors who are licensed in California. UR doctors have the power -- without actually interviewing or examining injured workers -- to deny, delay, modify, or approve the prescriptions of licensed doctors!

UR doctors are responsible only to their employers or surrogate UR companies. On one such occasion a Connecticut UR doctor from 3,000 miles away denied treatment to an injured worker in California. Upon reviewing the documentation selected and sent by the insuror, the CT doctor nixed the hapless injured worker's prescription and communicated the denial to his UR employer in Dallas. From there the denial of care was issued against the interests of an injured worker in California.

Insurance companies assert that since treatment is supposed to be evidence-based it shouldn't matter where the UR doctor actually is -- and that, therefore, a California license isn't necessary. The insurance companies also argue that UR is required and that there is no significant difference in the education and training of doctors -- so the geographical location of the doctor isn't important. Red flag here!

The Inconvenient Truth is that in California there is a requirement for California-licensed doctors to take a 12 hour pain management course. This requirement need not be met by non-California licensed doctors.

Insurance companies prefer their hired guns to be responsible only to them, not to public policy. Doctors who are licensed are responsible to the public policy of the state in which they're licensed and are subject to discipline by the state board. Doctors risk their licenses for spurious delays and denials of care.

Not so if one doesn't have a license. In fact, a non-California licensed UR doctor isn't responsible to any state board at all. The non-California licensed UR doctor isn't responsible to the MBC since the doctor isn't licensed in California and isn't responsible to the medical board of his own state, either, since that state doesn't have jurisdiction in California.

There is corrective legislation on the horizon: AB 933 (Fong) has cleared the Assembly. Because of Schwarzenegger's guaranteed veto, the bill is being held in the Senate until January of 2010. Assemblyman Paul Fong's legislation would require doctors who do UR in California to be licensed in California no matter where they reside. Because Texas passed similar legislation in 2007, we have an interesting anomaly: California doctors without Texas licenses are prohibited from doing UR in Texas. Texas doctors without California licenses are welcome to do UR in California. How d'ya like those apples, Mr. and Mrs. Injured Worker in California?

There is a caveat: Some insurance companies, e.g, State Compensation Insurance Fund (SCIF) and Zenith use only California licensed doctors for UR. Other companies assert that there aren't enough California-licensed doctors to do all the UR that is needed. Another red flag here!

The California Medical Association is on record as saying that this assertion is false. In fact, at least one utilization review company in California has a waiting list for doctors who want to do UR. Injured workers who are denied treatment by UR should file protests if the UR doctor who denied treatment is not licensed in California especially if one of the issues is the diagnosis and treatment of chronic pain.

UPSHOT: Gov. Schwarzenegger is turning somersaults to protect insurance company profits while doing cartwheels to prevent injured workers from getting the care their doctors prescribe. Simultaneously, he is making sure that an official agency of the state, the Medical Board of California, is deprived of income it could have from out-of-state doctors. Injured workers, their unions, their doctors, and lawyers on both sides should raise Cain about this despicable application of Utilization Review.

AB 933 (FONG) MOVED TO SECOND HALF OF STATE LEGISLATURE'S TWO YEAR SESSION by Robert L. Weinmann, MD

AB 933 (FONG) which would require doctors doing utilization review for California's injured workers will be taken up again starting in January of 2010. The bill was scheduled for hearing on 6/24/09 by the Senate Labor and Industrial Relations Committee; however, the bill's author, Assemblyman Paul Fong requested cancellation of the hearing.

This writer first sought review of the policy allowing non-California licensed doctors to overrule California-licensed treating physicians in a letter to the Office of Administrative Law in August of 2005. The effort to secure reform legislation countermanding the interests of insurance companies and the Schwarzenegger administration is now on its way to a fifth year.

The Schwarzenegger administration remains firmly committed to the wishes of the insurance companies who are supported by the Chambers of Commerce, the California Manufacturing Association, and the California State Association of Counties, all known for their positions against the interests of workers, in this case, injured workers in particular.

As the law stands now, medical directors who supposedly supervise utilization review are required to be licensed in California -- the striking exemption is that the doctors who actually do the reviews do not need to be licensed in California. By contrast, doctors who do the same job in Texas must be licensed in Texas. The upshot is that Texas-licensed doctors may do utilization review in California without California licensure whereas California-licensed doctors may not do utilization review in Texas unless they're also licensed in Texas.

The power point of politics in this case is that the only successful program the Schwarzenegger administration has implemented since 2004 is Workers' Compensation Reduction. The program has reduced employers' costs somewhat (including in my private office) and in so doing has boosted insurance company profits by leaps and bounds. The program also grinds a massive boot into the necks of injured workers whose benefits have been slashed and whose access to care has been cut.

The political lesson is this: one doesn't score easily when one asks an administration to alter the only successful program it has managed to implement in four years. Putting labor down while elevating the profits of insurance companies has been a goal of the Schwarzenegger administration. Both goals have been reached.

Even for labor the stake is modest: injured workers often are forced out of the workplace, cease to be union members, no longer pay union dues, and become of limited interest even to their former unions.

Doctors treating injured workers often see their treatment protocols tossed into the ash heap. Meanwhile, the same doctors remain responsible for the treatment that the insurance companies and their compliant utilization review companies have delayed or denied.

Requiring state-licensure doesn't solve the entire problem: there are still compliant doctors with state licenses who'll deny or delay care that their paymasters want denied or delayed. All the same, AB 933 would at least make non-California licensed doctors responsible to state standards, standards for which they're not currently responsible, for instance, California-licensure requires a 12-hour course in pain management. Non-California licensed doctors don't currently have to comply with this requirement.

The long and the short of it is this: last year Gov. Schwarzenegger vetoed a similar bill, AB 2969 (Lieber), and this year was poised to veto AB 933 (Fong). The idea now is to outwait the Governor. The time he has left to grind injured workers into the dirt is limited. Supporters of reform can wait until the tide turns.

UNION OF AMERICAN PHYSICIANS AND DENTISTS PROTESTS PHYSICAN LAYOFFS AND PLANNED UNIT CLOSURE AT YOUNTVILLE VETERANS' HOME

by Robert L. Weinmann, MD

In a masterpiece of timing just before Memorial Day, staff and residents of the Yountville Veterans' Home were told that the California Department of Veterans' Affairs is closing the acute care unit of the home's Holderman Hospital. Layoff notices have been sent.

1,100 veterans who reside at the home are being ignored as though they didn't exist, like battle-worn boots that saw their best days at Bastogne, or maybe somewhere in Korea or Vietnam. Eight layoff notices were received by doctors represented by the Union of American Physicians and Dentists (UAPD). Yountville's Home Administration office explained that the state needs to save money. Evidently, slicing medical care from veterans is California's preferred choice.

Stuart A. Bussey, MD, JD, president of the UAPD, declared that the California Veterans Affairs Department (CVDA) "is using the budget cuts as an excuse to close down this acute care unit and cut other medical servces, which it has wanted to do for a long time."

Bussey stated that the Yountville facility "is one of the largest groups of veterans in the country, and they need the care that this unit and these physicians provide." Bussey pointed out that providing equivalent care off-site will increase costs and that the premature layoffs are a thinly disguised method of unit closure before the actual closure.

This action by the state reportedly will save California about $4,000,000 in staff time. No mention was made about the $11,000,000 annual lost reimbursement to the state. No mention was made about the shoddy treatment shoved down the throats of America's veterans. No mention was made of the shame this move bestows on California.

The UAPD states that the CDVA is not following proper procedures such as allowing community involvement and advises concerned citizens to register protests with state legislators.

Politicsofhealthcare.blogspot.com points out that the State of California, simultaneously with this cutback to veterans, panders to the insurance industry and willingly foregoes fees that could be paid by out-of-state utilization review doctors (see stories about AB 933, Fong) to the benefit of California's coffer.

source: UAPD press release, 5/28/09, swilson@uapd.com

AB 933 (Fong) Wins Assembly Vote: Will Governor Arnie Schwarzenegger Continue his Gift Program to Insurance Companies? by Robert L. Weinmann, MD

AB 933 (Fong) won a resounding victory in the Assembly on Wednesday, 20 May 2009, on a 49 to 30 vote. The bill now goes to the Senate.

If AB 933 (Fong) becomes law it'll put a stop to the perfidious practice of some insurance companies that use non-California licensed physicians to do utilizatiion review in Workers' Compensation cases. These doctors who are not licensed to practice medicine in California are not responsible to the Medical Board of California for harmful decisions even though the Medical Board of California says that Utilization Review is part of medical practice and that doctors doing Utilization Review for California's injured workers should be licensed in California.

These exempt doctors are also not responsible to their own state boards since their own state boards don't have jurisdiction in California. In the meanwhile, cash-strapped California takes another body blow. Since these doctors aren't required to be licensed in California, they don't pay fees to the Medical Board of California. They get a free ride. Their share is paid by properly licensed doctors in California whose legal medical decisions are often blocked, delayed, and denied by the non-paying free-ride non-California licensed doctors. How d'ya like them apples, reader!?

Here's the rub: the propositions just got wiped out in the May 19th Special Election. Governor Schwarzenegger said that the people have spoken and now he'll have to teach them a lesson by cutting services right and left. Meanwhile, the Governor continues to give insurance companies a free ride by allowing them to employ Utilization Review doctors who don't pay license fees to the State of California. If only 1,000 non-California licensed doctors enjoy this benefit, the Medical Board of California is deprived of $808,000 (the real number has never been disclosed).

Governor Schwarzenegger is about to punish the public for not trusting political hypocrisy and for voting down his propositions. Meanwhile, he continues to reward insurance companies that hire non-California licensed doctors whose decisions often deprive injured workers and sick patients from the medical care they deserve.

Readers who have strong enough feelings on this issue need to make contact with their State Senators. So far the issue has been largely partisan, Democrats voting for the bill, Republicans, against. It is hard to believe that we're giving gifts to insurance companies while the public unnecessarily pays the piper

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INJURED WORKERS WIN ASSEMBLY INSURANCE COMMITTEE VOTE by Robert L. Weinmann, MD

On a strictly party line vote, AB 933 (Fong) cleared the Assembly Insurance Committee by a 7 to 3 vote: the aye votes were Joe Coto, chair; Charles Calderon, Wilmer Carter, Mike Feuer, Mary Hayashi, Jerry Hill, and Norma Torres. The nay votes were Martin Garrick, Sam Blakeslee, and Roger Niello.

AB 933 (Fong) will require doctors who do utilization review for injured workers in California to be licensed in California and pay fees to the Medical Board of California. The idea is to make sure that doctors who can delay, deny, approve, or modify treatment have the same licensure and are subject to the same discipline as are the injured workers' treating physicians.

Opponents argue that all physicians have the same training and education so licensure in any state should suffice. This assertion ignores the fact that California has specific rules, regulations, and educational requirements about pain management that are not required of non-California licensed doctors. Insurance companies use these doctors in part because under current law non-California licensed doctors may deny care, cause increased pain and suffering to injured workers, and suffer no recriminations for wrong or harmful decisions. Fong's utilization review bill will change all that -- treating, consulting, and utilization review doctors will all become responsible to the same state authority. It will put an end to the get-out-of-jail free cards that non-California licensed doctors now enjoy.

Opponents also incorrectly argue that there are not enough California doctors willing to do utilization review. By now the oppostion knows that this argument is false; nevertheless, they continue to hope this specious argument will convince someone. The fact is that there are so many more California-licensed doctors willing and able to do utilization review that they cannot all be hired. That is why one utilization review company has a waiting list of applicants for physicians who have applied for utilization review positions.

This question then arises: if there are enough California licensed doctors to do the job, why hire non-California licensed doctors? One answer is that the non-California licensed doctors aren't responsible to the Medical Board of California and are also not responsible to their own state medical board since an out-of-state medical board doesn't have jurisdiction in California. If the non-California doctor wrongfully denies care and harms an injured worker, that doctor is not subject to discipline by any state board at all. Such doctors are only responsible to their employers, the utilization review companies owned or retained by insurance companies, many known for spurious denials of indicated medical care. The not-so-silent accusation is that insurance companies seek to avoid medical costs by asserting that prescribed care isn't needed -- non-California licensed doctors are felt more likely to comply with this perversion of utilization review than doctors who are subject to medical discipline by specific state medical boards. Utilization review by non-California doctors is the latest health-care epidemic. It needs to be stopped.

Since AB 933 (Fong) is now ready for a floor vote in the Assembly, one can expect that the insurance companies will lay down the law to their Assembly allies, to their friends in the state senate, and to Governor Schwarzenegger (last year Gov. Schwarzenegger vetoed a similar bill thereby saving the necks of the insurance companies). The question this year is who will listen to arguments that have been shown to be bereft of truth.

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AB 933 (Fong) requires licensure in California: it does not require doctors to live or reside in California

AB 933 (Fong) deals with licensure for psychologists and physicians -- it will oblige physicians who do utilization review for injured workers in California and who are not licensed in California to get licensed in California. It will not require that they live or reside in California. Watch out for a workers' comp lobbying group alleging that it represents management and that has been going from office to office telling legislators and staff that the bill would require the doctors to live or reside in California. This assertion is false. One wonders in astonishment at a lobbying tactic of such dubious merit.

SCHWARZENEGGER'S GIFT TO INSURANCE COMPANIES COULD HARM PATIENTS (HEALTHCARE JOURNAL OF NORTHERN CALIFORNIA, Jan/Feb, 2009), sequel to HOW TO PRACTICE MEDICINE WITHOUT A LICENSE (SAN FRANCISCO CHRONICLE, 8/29/08)

On 26 February 2009 The Hon. Paul Fong introduced AB 933 which will require any doctor who does utilization review in California to be licensed for medical practice in California. Last year the Hon. Sally Lieber introduced AB 2969 to accomplish this objective. The bill passed the legislature and was vetoed by the Governor. This year we'll give our Governor another chance to see the light and sign the legislation.

Check out the following stories:

"Schwarzenegger's gift to insurance companies could harm patients," Healthcare Journal of Northern California, Jan/Feb 2009, www.hcjnc.com, click on "breaking news,"

"Review Adds Insult to Injury," TRADE WINDS, The Newsletter of the International Association of Machininists and Aerospace Workers," V. 56, #1, Winter 2008, www.local1781.org or google www.Local1781.org/TRADEWINDSJan08.pdf

"Insurance Industry Sabotages Injured Workers in California," www.californiaprogressreport.com/2008/10/insurance_indus.html, 5 October 2008

"How to practice medicine without a license," San Francisco Chronicle, 8/29/08 (just google the title as per above)

UTILIZATION REVIEW IS A TOOL INSURANCE COMPANIES MAY USE TO RESTRICT INJURED WORKERS FROM ACCESS TO CARE including diagnostic testing and actual treatment. In this way corporate profits and executive compensation are enhanced. Because the Hon. Paul Fong introduced AB 933 the issue is heating up in Sacramento, but it's not yet as hot as it's going to get. Here's what Russell Wyllie, Mountain View, wrote in the letters section of the San Jose Mercury News on 3/28/09:

"The Mercury News (Editorial, March 23) describes how the 2004 workers' compensation reform has 'worked wonders,' but it hasn't been so wonderful for injured workers ... the lower costs of workers' compensation insurance has come at the expense of employees injured on the job ... "

See www.mercurynews.com for Wyllie's complete letter-to-the-editor

WHILE THE ISSUE HEATS UP, INJURED WORKERS CONTINUE TO GET THE PROVERBIAL SHAFT. HERE'S A CURRENT EXAMPLE OF HOW IT'S DONE:

One year ago an injured worker was prescribed care. When the doctor who made the recommendation was asked to see the patient for follow-up one year later, he found that the recommended treatment had not been done because the insurance company and its utilization company had not authorized it. In the meantime, the injured worker hired an attorney. We then discovered that the insurance company did not authorize the treatment because a utilization review doctor rejected it. Next we learned that the utilization review doctor was licensed in Florida, but not in California. This point is important because it means that negligence by the Florida doctor re utilization review of an injured worker in California is not subject to discipline by the Medical Board of California. Neither is the Florida-licensed doctor subject to discipline by the Medical Board of Florida since that medical board doesn't have jurisdiction in California. It appears that the Florida doctor has a pass-go for malpractice since his utilization review decisions aren't under the jurisdiction of any state medical board. Meanwhile, the patient has gone without treatment.

Some say this system is made in heaven for the insurance companies and their bought-and-paid-for utilization review companies. Others would say that by mentioning heaven this writer is pointing in the wrong direction.

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How insurance companies benefit by denying care to injured workers by Robert L. Weinmann, MD

On 26 February 2009 The Hon. Paul Fong introduced legislation (AB 933) that will require physicians who do utilization review for injured workers in California to be licensed in California. Similar legislation passed the legislature last year and was vetoed by Gov. Schwarzenegger.

For more information check out the following:

"Schwarzenegger's gift to insurance companies could harm patients," Healthcare Journal of Northern California, Jan/Feb 2009, http://www.hcjnc.com/, click on "Breaking News,"

"How to practice medicine without a license," San Francisco Chronicle, 8/29/08 (google title as per above),

"Insurance industry Sabotages Injured Workers in California," California Progress Report, 10/05/08, www.californiaprogressreport.com/2008/10/insurance_indus.html

"UAPD Legislative Advocacy, AB 2969 Workers' Compensation Medical Treatment Reviews," http://www.uapd.com/, use menu to go to Legislative Advocacy and scroll down for 2008 or call UAPD at 800-622-0909 & ask for The UAPD Report/UAPD Newsletter, October, 2008.

"Assemblyman Paul Fong to author CSIMS Utilization Review Legislation," Winter 2009, The Bulletin (official publication of the California Society of Industrial Medicine and Surgery), www.csims.net

"Review Adds Insult to Injury," TRADE WINDS, The Newsletter of the International Machinists and Aerospace Workers, v. 56, # 1, Winter 2008, www.local1781.org

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