AB 655 (Hayashi's Hypocrisy) : The Sequel

LAWMAKER MARY HAYASHI CHARGED WITH SHOPLIFTING is the title of an article posted on SF GATE from the San Francisco Chronicle, 10/29/2011.

SHOPLIFTING POLITICIANS is the title of the post on JUDICIAL COUNCIL WATCHER.

Here's the facts as they've been reported so far: Hayashi was shopping at Neiman Marcus and left the store with items priced at $2,450. She checked out at the register without paying for these items, got stopped by security, was taken to the Tenderloin Police Station, and was booked on one count of felony theft. She is eligible for three years in prison if convicted although as a new arrival to the felony theft scene a full three-year sentence is not expected. Her mouthpiece said she was "distraught" at the misunderstanding whereby she inadvertently by-passed the cash register and walked out of the store with the goods.

We are willing to post this story as reported but we'll wait for her defense and court judgement before drawing final conclusions. In the meantime, we'll explain why we've learned not to trust her anyway.

During the hearings on AB 655 she repeatedly told everyone and anyone who would listen that there was no opposition to the bill even though by this time it was known that there were dozens of private objections to the bill that had been sent not only to her office but also to the relevant legislative committees. All were ignored by Hayashi and her staff. Instead of thoughtful reply, we were told there was "no opposition." Technically, there's some truth to this assertion because there were no negative votes in the legislature. So it was not a complete lie that there was no opposition. There was, however, enough disception to dishonor her office and to sully the reputation of another assemblyperson who contributed to the deception in a sham speech and charade on the Assembly floor (which we have on video for appropriate release, like at election time).

It's not as though this instance were the first and only example of sub-standard conduct reported to have been committed by Hayashi. Two years ago it was reported that she used $202,212 from her own campaign money to assist her attorney spouse to win election to the Alameda county bench.

But there's plenty of soiled linen to pass around. Here's the latest from our reporter in Anaheim where the California Medical Association met last week. Jim Hinsdale, MD, out-going president of the CMA, proudly told the CMA attendees that AB 655 was one of CMA's more important legislative successes this year (CMA was actually the sponsor of this bill). Jodi Hicks, now in charge of lobbying for the CMA, dismissed assertions that the bill allows sham peer review.

The legislation was reportedly intended to enable transfer of peer review information about doctors among hospitals in order to prevent doctors who were shown to be incompetent from moving from hospital to hospital without full disclosure.

The legislation as written, unfortunately, enables hospital administrations to transfer material that is false and defamatory even if it is known that the information is false and defamatory. It enables and protects false witness. In essence it allows the equivalent of peer review blackmail.

When strenuous efforts were made in good faith to amend the bill resistance came from the CMA CEO, Dustin Corcoran, who spoke with the undersigned and allowed a snippet of amended language, just not enough to allow expungement of false and defamatory language. Some believe that the real force behind the bill was the California Hospital Association and that the basic ideology is to enable control of doctors by hospital administrations and foundations.

R.V. Rao, MD, Chief of Surgery at his hospital, says that "it is time to file ethics charges against this legislator to the California legislative assembly for blatantly misleading the California legislative assembly." We think that's a good idea.

The next step is for hospital committees that do peer review and credentials to meet and confer and decide what they need to do before the first lawsuits are filed in which the individual doctors serving on these committees are sued for defamation. The law may protect peer review and lawful conduct. It does not protect illegal activity.

The hornets are beginning to swarm. Committees at two hospitals known to this writer have already held meetings in which the topic was how to protect themselves as committee members from the consequences of this incompetent legislation.

ACCOLADES FOR AB 536 (MA)

In the tradition of never give up, never give up, Assemblywoman Fiona Ma has won a battle that began years ago when she sponsored legislation to have wrongful information expunged from doctors' records. Governor Jerry Brown signed AB 536, sponsored by the Union of American Physicians and Dentists (UAPD), into law. This bill accomplishes part of Ma's original objective in that it will require the Medical Board of California to remove an expunged misdemeanor conviction from a doctor's record on the medical board's website within 90 days of notification of the expungement order. Our accolades go to Fiona Ma as author of the bill, to the UAPD for sponsoring it, and to Gov. Brown for signing it into law.

"ACCOLADE FROM THE ASSOCIATION OF CALIFORNIA INSURANCE COMPANIES" IS AWARDED TO GOVERNOR BROWN

Goveror Brown and former Gov. Schwarzenegger have in common that both earned the gratitude and thanks of the insurance cartels. When the insurance companies learned that Gov. Brown vetoed anything and everything that might have lightened the burden for injured workers, their immediate response was to praise the Governor. Why not? He saved their bacon, didn't he?

Both Schwarzenegger and Brown ignored the opinion of the Medical Board of California, namely, that utilization review was an aspect of medical practice and that utilization review doctors whose decisions are used in California should be licensed in California. Texas doctors, unlicensed in California, may do utilization review in California whereas California doctors, if they're not licensed in Texas, may not do utilization review for injured workers in Texas.

It turns out that Governors may ignore the decisions of their states' professional boards. Not so for the accountants, dentists, nurses, physicians and tecnologists who are obliged to submit to the decisions of their professional boards.

Jason Schmelzer, Chief Lobbyist for the California Workers' Comp Coalition, glowingly said "there's room for the Governor to gloat. He did a fine job ... we think he did just fine."

Jesse Ceniceros, president of Voters Injured at Work, asked "what was the sense in replacing a Republican with a Democrat if he's just going to do what the Repubicans tell him to do? It's as though we didn't get rid of Schwarzenegger."

Right on, Jesse, we didn't. Both governors kow-towed to the insurance companies. Both governors earned and deserve the accolades heaped upon them by the insurance moguls. The injured worker community never saw it coming and didn't know what hit 'em until it was over. Denials of authorization for care will keep coming from doctors without California licenses as long as the use of carpetbagger doctors continues.

Interestingly, Gov. Brown used the Knox-Keene legislation as his model even though Knox-Keene has nothing to do with workers' comp. Brown said that requiring utilization review doctors to be licensed in California wasn't consistent with Knox-Keene. The California Society of Industrial Medicine and Surgery wrote Brown in September of 2011 that "merely because some Knox-Keene companies may be engaging in illegal activity without being prosecuted is not sufficient basis to condone it in workers' comp." To the best of our knowledge, Knox-Keene wasn't invented to make the lives of injured workers miserable. That cudgel was taken up by Schwarzenegger and is now surprisingly being wielded by Brown.

It may've been a politically advantageous move for Schwarzenegger from whom fair and equitable treatment of injured workers wasn't expected. We'd expected better from Brown.

YA' WIN SOME, YA' LOSE SOME, BUT ALWAYS RELISH THE FIGHT!

For the private practice community, our biggest success was causing SB 923 (Deleon) to suffer a humbling defeat in the legislature. This bill would have replaced the Office Medical Fee Schedule (OMFS) with the Medicare RBRVS (specialty cuts proposed ranged from 29% for neurological procedures to 48% for internal medicine). The bill will return. Administrative fiats will be sought to help it along. Physicians' groups that sit on the sidelines may find that there's no field to which to return. Some physician-specialty groups will offer courses (for which they'll charge their members) and sub-specialty certifications (for which they'll also charge their members). Specialty organizations may find themselves more on the side of management than on the side of practicing physicians.

Governor Brown took the side of insurance interests in his veto of AB 584 (Fong). He indicated that Fong's bill was not consistent with Knox-Keene or private insurance plans that do utilization review. All medical organizations should see the handwriting on the wall and ask if it's time to revise or reject Knox-Keene.

The Governor signed AB 655 (Hayashi) which allows the unfettered transfer of peer review material from one hospital to another. Control of peer review is of minor interest to most practicing physicians although it's of major interest to hospital administrations and financial interests that seek to control hospital medical staffs. Physicians and their official organizations may not be a match for these interests but, so far, they haven't tried to be.

Meanwhile, in Washington, there's continued focus on the Affordable Care Act, Obamacare to some. This writer opposes the IPAB (Independent Payment Advisory Board) and feels that Section 10320 of the ACA should be repealed. Our further comments on this bill appear in POLITICO.

AB 584 (Fong) is still on the Governor's desk: he has until October 9th to sign it into law. This bill will stop the perfidious practice of farming out utilization review for injured workers to doctors without California licenses. These doctors, no matter how well qualified, have not done the mandatory 12-hour pain management course that is required of doctors licensed in California. In addition to enjoying this relief, the doctors without California licenses enjoy another benefit: they don't pay fees to the Medical Board of California since they're not licensed in California. The loss of revenue to California's General Fund in terms of lost taxable income is $10,000,000 annually. If these doctors make grievous errors, they don't have to explain anything to the MBC nor do they report to their own state boards since those boards don't have jurisdiction in California. The loss to injured workers in California who are denied timely authorization of care is incalculable. Urge the governor to sign AB 584 by faxing your signed statement to him at 916-558-3177.

Late bulletin: Gov. Brown vetoed this bill on Oct. 7th because it wasn't consistent with how UR is done under Knox-Keene and private health plans that use the same UR techniques to delay and deny indicated medical care. The reasoning seems to be that's it's OK to apply the same screw to injured workers as to everybody else. Is it time to take down Knox-Keene?

AB 655 (Hayashi), also on the Governor's desk, is a horse of another color, well, at least a donkey of another color. This bill will allow transfer of alleged peer review material from one hospital to another when doctors apply for hospital privileges. The trouble is that there's nothing in the bill that allows sham peer review material, material that's flat-out wrong or defamatory, to be excluded from the transferred material. The accused doctor doesn't even need to be copied on the transferred material. Assemblywoman Hayashi, author of the bill, actually misinformed the legislature in an Assembly speech about the bill by asserting that there was no opposition (we have the video showing her doing just that). Attempts to get an amendment that would allow accused doctors to be fully informed were unsuccessful. The Governor should veto AB 655. Fax him that message at 916-558-3177.

Late bulletin: after the posting of the item above, word came in from Sacramento that Gov. Brown signed AB 655.