How so-called "guidelines" become hard-and-fast "regulations"

Our previous post showed how Utilization Review decisions sometimes turn out to be regarded and applied as actual practice mandates and how 80% of such decisions are actually denials of care that get upheld by Independent Medical Review. 

The quizzical situation is that many of the UR doctors are not licensed in California. Neither are many of the IMR doctors. More to the point is that the UR doctors and their IMR colleagues often reject diagnostic studies and treatment that has been recommended by MPN (medical provider network) doctors that have been selected by the same companies that approved the UR panels that then denied treatment. Practicing doctors and their patients who know that an injury is real have long since figured out that cost-control, not patient care, is the name of the game. Even the AMA has gotten into the game, purveying and selling to any and all willing buyers a book called Guidelines to Impairment. This book has proved to be a goldmine for insurance companies and their employers who don't want to pay for whatever they can get away with denying as a "covered" item.

Meanwhile, seeing the business success of the AMA Guidelines, other organizations have jumped onto the regulatory bandwagon, e.g, the ABMS boards who now sell "recertification" and "maintenance of certification" programs to their own members. In fact, the eagerness with which physicians' own organizations have sought to subjugate its own members has actually provoked enough ire among physicians that 14 states have already passed legislation modifying the greed-encrusted thrust of the ABMS boards to sequester themselves as well paid bosses (about $800,000 for the ABMS chief, see previous post).

Likewise professional organizations such as the American Academy of Neurology (AAN) which recently published a "position paper" on chronic pain and opioid medication -- without submitting a draft to the California Neurology Society (CNS). THAT caught the attention of  then CNS president Robyn Young, MD, who also reviewed a similar advisory from the Medical Board of California (MBC) which seemed more in line with CNS practices than the AAN paper which was widely regarded as one-sided and biased.

That situation in turn led to CNS' asking its own Director of Government Relations to testify at the MBC hearing in October of 2014. The MBC considered several subjects one of which was a unified and reasonable approach to the treatment and management of chronic pain. Accordingly, the CNS Director of Government Relations, Steve Cattolica, stated "these guidelines are not the only treatment of this issue prescribing controlled substances for non-cancer pain." It was acknowledged that such guidelines, however,"should represent the standard of care for physicians in California ... that fact begs the question how these guidelines will be used or IF they will be used as the Board has intended."

Cattolica then pointed out that "our constituents with heavy emphasis in treating injured workers face a difficult situation" because "any inconsistency will cause all physicians to perhaps compromise the standard of care." Using the Division of Workers Comp (DWC) as an example Cattolica stated how "the DWC's treatment guidelines have a long and proven track record of being misapplied ... to control costs and identify physicians they no longer want in their medical provider networks."

The MBC chair, Ms. Yaroslavsky, was quoted as having said that guidelines are just that, guidelines, not regulations. Cattolica then stated why vigilance is essential: "the physician community's experience with the application of treatment guidelines in the workers' compensation system is as rigid criteria." In other words, it needs to be emphasized that AAN Policy Paper on the use of opioids in non-cancer pain is a guideline, not a regulation, and that the same goes for the guidelines proposed by the MBC. It can be anticipated that the MBC and the AAN recommendations will compete for attention from treating physicians. Either way the mere presence of written guidelines opens the way for automatic rejections of treatment by utilization reviewers in all walks of medical practice including government plans such as Medicare and Medicaid, or managed care plans such as HMOs and PPOs, or workers compensation where remote control medicine is already rife among UR doctors and their legally anonymous IMR counterparts.

Cattolica advised a change in wording-- drop the phrase "very consistent" from the recommended statement of Guidelines and replace it with the word, "equivalent."