Monday, December 1, 2014


Utilization Review (UR) is the process in Workers Comp whereby outside physicians decide whether or not to authorize care prescribed by a PTP (Primary Treating Physician) or consultant called upon by the PTP to advise about the next diagnostic or therapeutic steps that should be taken for an industrial patient or injured worker. Under current California law the UR physician does not have to be licensed to practice medicine in California -- any state license suffices. Proponents of the current system argue in support of the position that where a physician is licensed is beside the point and should not be made an issue. What matters, they say, is that he is knowledgeable in the specialty in which he opines and on this basis should be allowed to approve or disallow authorization for treatment based on accepted peer review guidelines. Opponents point out that the UR physician is actually practicing medicine and should be just as responsible to the state medical board as the PTP.

Opponents assert that some insurance companies go out of there way to find physicians who are more likely than others to be nay-sayers who deny more diagnostic services and treatment than their colleagues. California's state medical board has recognized this awkward situation and is on record saying that UR is part of the practice of medicine and that UR physicians on California cases should be licensed in this state. This writer agrees, but it will take fresh legislation to get this change into law. In fact, three times such legislation actually cleared the California legislature, and three times it was vetoed, twice by Gov. Schwarzenegger, once by Gov. Brown, at the heavy handed persuasion of the insurance lobby. However, the tax circumstances that applied then no longer apply, reason enough to try again and give Gov. Brown a chance to redeem himself.

This topic has previously been discussed in these pages, e.g., "Utilization Review: Hypocrisy in Velvet Gloves," and reprinted in toto in workcompcentral, 2014-03-26.

See also for reference "How to practice medicine without a license," San Francisco Chronicle, 8/29/08.

Willful or wrongful denial of care may constitute "unprofessional conduct." If a doctor with a California license willfully or wrongfully denies care, that doctor may be asked to appear before the state medical board for "unprofessional conduct." No such threat awaits the non-California licensed physician. The non-California licensed physician may not be hauled before his own state board, either -- that board would not have jurisdiction in a California case. As matters stand now, the doctors whose decisions invariably favor cost-cutting by denying care need not worry about professional discipline for wrongful denials of care. This situation begs to be changed. It'll require legislation akin to Texas law which requires doctors who do UR in Texas to be licensed in Texas.

At the moment, doctors licensed in California cannot do UR on Texas patients without first getting licensed in Texas. By contrast, Texas doctors who aren't licensed in California may deny authorization for diagnostic studies or treatment ordered by doctors licensed in California who are trying to take care of patients injured in California. The California doctor ends up carrying the proverbial malpractice bag through no fault of his own. The non-California doctor who actually denied the diagnostic study or treatment skedaddles away paid and unscathed.

One major lobbyist told me he's all for revising Utilization Review law but would need to be assured that the Governor would not veto it this time. As anyone knows who has dealt with Gov. Brown, we do not offer guarantees on what he'll do or won't do. Our job is to persuade.

UR in California is often buttressed by a yes-man mentality from IMR physicians, that is, from Independent Medical Review doctors who also don't need to be licensed in California and, who, to make matters worse, are actually protected by anonymity endowed by recently passed California legislation which also cries out for adjustment, better yet, outright repeal (we refer here to SB 863, DeLeon). The Medical Board of California (under then President Richard Fanozzi, MD) stated in a letter dated 8/25/08 that the MBC supported legislation that "would require a physician who is conducting utilization review to be licensed in California " because that "would provide increased consumer protection over decisions that do not have patients as its primary concern."

Instead, what has happened with IMR is that "consumer protections over decisions that do not have patients as its primary concern" has been weakened.

Organizations that have previously expressed concern with current standards re UR include the California Society of Industrial Medicine and Surgery (CSIMS), California Physical Medicine and Rehab (CPM&R), California Medical Association (CMA), California Applicants' Attorneys Association (CAAA), Union of American Physicians and Dentists (UAPD), Voters Injured at Work (VIAW), LatinoComp, and California Neurology Society (CNS).

We're now obliged to wait to see which one takes the lead on UR and IMR reform in the 2015 legislative year. Our recommendation is that it be a consortium that pools its resources. 

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