Monday, May 14, 2018

MALPRACTICE CASE SOON TO BE DECIDED BY SUPREME COURT


Malpractice reform in Utilization Review is again on the line, this time because the California Supreme Court has scheduled hearings re  King v. CompPartners on May 29. The case resolves about the rights of an injured worker when UR denies access to treatment ordered by a California licensed  physician and when, as a result of this medically wrong UR decision, an injured worker is not only denied treatment but also suffers harm as a result of the combined negligence of UR and the insurance carrier that benefits financially by being absolved of its obligation to pay for care.


The current issue revolves about the decision of an insurance company to stop paying for Kirk King's klonopin. The insurance company's decision was made on the basis of a utilization reviewer's wrongful judgement that could in due course prove harmful to physicians engaged in UR. Our information is that the UR doctor made an incorrect and harmful decision that was happily adopted by the insurance company. This quick-step could end up with a two-step revision of UR, namely, requiring that UR physicians be licensed in the states where their decisions are used and that they carry malpractice insurance in those states. This publication favors both steps. 

The California Workers Compensation Institute  (CWCI) has argued  that UR is not medical practice, a clearly absurd position to treating physicians and to the patients who are harmed. This fatuous argument was supported twice by Gov. Schwarzenegger and once by Gov. Brown who vetoed bills that would have implemented state licensing for UR and IMR (Independent Medical Review) doctors. Brown's reasoning was more tortured than Schwarzenegger's -- he said that requiring UR doctors to be licensed "would be an abrupt change and inconsistent with the manner in which utilization review is conducted by health care service plans under the Knox-Keene Act and by those regulated by the California Department of Insurance."


THAT is just the point: UR and IMR decisions that deny indicated and necessary care are harmful intrusions into medical care and should be squashed. These denials require the abandonment of the duty of care owed to injured workers. CWCI's reading of the law is frivolous, legalizes abandonment of sick and injured workers, and deserves to be repealed along with enabling law created by SB 863 --  which added insult to injury by adding IMR to the Utilization Review process.

In a nutshell, in the unfortunate case of Kirk King, the insurance carrier stopped payment for prescribed medication based on  the UR doctor's report. The result was that the patient suffered epileptic seizures.  

The opinion of this publication is that the injured worker was abandoned and that the UR system and the insurance company were at fault and opened the door to the malpractice litigation now in progress. The harm that befell Kirk King is proof that the UR system practiced unsound and negligent medicine. 

The Supreme Court should find that UR doctors owe a duty of care to injured workers and that in the King case UR and the insurer were negligent. Such a decision will restore equity between treatment and utilization review. 

References

High Court to Hear Arguments in UR Malpractice Dispute May 29, Workcompcentral, 2018-05-11

Malpractice by Utilization Review?, The Weinmann Report, 12/13/2014 (www.politicsofhealthcare.com)

Malpractice Reform Makes it to California Supreme Court, The Weinmann Report, 01/02/2017


Wednesday, May 9, 2018

CALIFORNIA'S PROPOSED DIALYSIS INITIATIVE



The California Dialysis Initiative is supposed to come up for vote in November. Its avowed purpose is to set arbitrary limits on what insurance companies pay dialysis clinics for actual patient care. The initiative sounds like it might be a protective device shielding patients from being overcharged. It isn't.

The dialysis clinics will be obliged to pay physicians and other providers less if they want to maintain current levels of corporate  profit. At the same time, to keep administrative charges intact, the clinic administrations will be obliged to scramble their physicians and require them to see more patients per unit of time.  It's called "efficiency." 


The California Medical Association is opposed to the initiative  because it poses potential harm to patients, but probably also because it poses financial hardship on large clinics and healthcare plans. For instance, healthcare contracts to provide care would have to be revisited and revised downwards. Current contracts would have to be renegotiated.  Physicians, through no fault of their own, would be obliged to bear the brunt of reduced remuneration to keep the money flowing to the upper echelons of administration. That's how business is done in America, isn't it? 


Once profitability is reversed recruitment of providers will drop. The trouble is that dialysis patients aren't in-and-out customers -- they often need lengthy visits, often more than occasionally -- so in the final analysis this initiative is against their best interests. That's why this initiative needs to go back to the drawing board.  

Thursday, May 3, 2018

SB 1303 (Pan and Galgiani) is a step forward


SB 1303 is follow-up legislation to SB 1189 (Pan) and expands upon the partial success of the earlier bill.This legislation, initially sponsored by the Union of American Physicians and Dentists (UAPD), is currently co-sponsored by the California Medical Association (CMA). It requires counties with 500,000 or more population to rely on physician-MDs or DOs who are Medical Examiners to do forensic autopsies. It does away with the outmoded and politically orientated Sheriff-Coroner system. All that is explained in our earlier reporting illustrating how cover ups of wrongful death could happen under the Coroner system. 

The UAPD Legislative Report, 4/28/2018, said that UAPD President Stu Bussey, MD, JD, and Bennet Omalu, MD, MBA, of movie Concussion fame, "vociferously advocated on the need for this bill" before the Senate Governance and Finance Committee. Clearly, their testimony was convincing. 

The CMA Legislative Hot List, 5/3/2018, states that the San Joaquin County Board of Supervisors recently eliminated the office of the sheriff Coroner and adopted a Medical Examiner model. CMA, with deserved self-praise, said "the pressure from this legislation clearly influenced the county's decision." 

The Weinmann Report, accepts plaudits, too. The California Society of Industrial Medicine and Surgery (CSIMS), the California Neurology Society (CNS), and others who saw the need and supported this legislation also deserve recognition. 

As we go to print, our information is that the bill is in Senate Appropriations. Physicians should write, e-mail, or fax Doug Chiappetta who is handling the bill for the UAPD and Stuart Thompson who is doing the job for the CMA to give this bill high priority. SB 1303 is a step forward in restoring professional prerogatives to properly educated professional persons.

References

Dr. Richard Pan Introduces Bill to Boost Public Confidence in Autopsy Reports, 20 Feb 2018, 
contact Shannon Velayas Martinez, 916-271-2867

The Weinmann Report, "SB 1303 would replace coroners with medical examiners," 2/25/18

The Weinmann Report, "forensic autopsy bill clears senate moves to assembly, 06/02/16

The Weinmann Report, "When is death by drowning described as 'undetermined'? " 5/30/16

The Weinmann Report, "Probable drowning," 5/23/16

CSIMS, "Issue of Interference in forensic autopsies isn't a new issue," 12/20/17



Monday, April 9, 2018

AB 3087: A STEP BACKWARDS


If  AB 3087 (Kalra) becomes law, California will be obliged to appoint a commission to set prices and ration care. Access to care will become increasingly unavailable as costs are shifted to out-of-pocket expense.  How's that for a step backwards?


AB 3087  is still in flux, but here's what we know so far.


1) an appointed commission (nine members) will have the authority to set prices for medical and surgical services that are not already under government control. The idea is to squelch commercial health care such as insurance companies who have earned their way into the public's wrath. It would also put a huge crimp into Kaiser and like plans. It is rationing by government edict.

2) Like the flawed single-payer plan, SB 562, it would exclude the very persons most knowledgeable about health care from participating in its governance. None of the nine appointees need be physicians.

3) True to the principles of hypocrisy in government, the bill makes provision for lawyers and even for lobbyists to be reimbursed.

According to the Legislative Counsel's Digest, 03/23/18, "Existing law, the Health Data and Advisory Council Consolidation Act, requires certain health facilities and freestanding ambulatory surgery clinics to file specified reports with various patient and health data information with the Office of  Statewide Health Planning and Development ... this bill would require a health facility to  report specified reimbursement information for each procedure performed including Medicare reimbursement on a fee-for-service basis (italics added)."


My comment: the bill is intended to establish "caps" and puts the power to do so in the hands of political appointees (much as was the case in the recently repealed section of the Independent Payment Advisory Board under the Affordable Care Act). The broad power of this bill is that it establishes fixed fees for hospitals, health care plans, and providers and socks the difference to out-of-pocket payments by the patients themselves. The bill in its current form allows payments at 100% of Medicare -- but tomorrow's 100% could be substantially less.


Proponents include SEIU, CAL Labor Fed, Unite Here, The Teamsters, and Health Access That the bill could harm their members akin to how SB 863 did does not seem to be an issue with Big Labor.

Expected opposition is likely from the California Medical Association, the California Neurology Society, and others representing the organizations about to be stepped on.

Insiders to the politics of healthcare have asked this writer how the Union of American Physicians and Dentists who belong to AFSCME, AFL-CIO will deal with this issue. The UAPD is a part of organized labor and at the same time represents a few thousand state and county employed physicians, some clinics and private practice. Has either group -- SEIU,  CA Fed, Teamsters et al, or the CMA consulted with the UAPD which has interests on both sides (physicians who are labor union members) of this issue?

We'll letcha' know as soon as we know! Stay tuned! To have your own say on the matter, here's a tip: this bill is scheduled to  be heard by Assembly Health Committee on 4/24/18. 

Update, 4/11/18: AB 3087 is probably beyond amending. It's likely that proponents will amend suggested amendments to keep  this blunderbuss approach to corrective legislation as untouched as possible, My recommendation is to oppose. Stay tuned. More to come. Recommend readers write their representatives prior to hearing and not wait for organizational replies - but copy the organizations to which you pay dues and take note of what they do and to whom they listen, -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com 

Updated update, 4/24/18: AB 3087 handily cleared the Health Committee on an 8 to 4 vote.  Some of the aye votes were accompanied by misgivings on the part of committee members who said they might still vote against the bill on a floor vote unless further adjustments, unspecified,  are made. -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com

Monday, March 26, 2018

SB 1303 (Pan & Gagliani), Amended in Senate


SB 1303 was introduced by Senator Pan on 02/16/18.  Senator Gagliani has joined as coauthor. The original bill had some loopholes (see references below) which have now been closed by language amended in the Senate on 03/22/18. The amendment is directed to the office of Medical Examiner (ME) who "shall be a physician and surgeon licensed to practice medicine in this state, or an osteopathic physician and surgeon licensed to practice osteopathic medicine in this state." 

Readers of this blog know that the state license issue has been paramount for this column. We're glad to see it resolved. Kudos to Pan and Gagliani. 


Unfortunately, still unresolved is the issue of Utilization Review and Independent Medical Review physicians who are not licensed in California but who are nonetheless allowed by law to deny authorizations for diagnostic tests and treatment for injured workers. 

References

"Probable Drowning (SB 1189,  Pan & Jackson)," The Weinmann Report, 05/23/2016

"SB 1303 (Pan & Gagliani) would replace coroners with medical examiners, The
Weinmann Report, 02/25/18

"Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody," The Weinmann Report, 02/19/18

Update on SB 1303 as of 11 April 2018: this bill just got referred to a second committee, Public Safety. Legislators call that "double referred." Depending on your point of view, double-referral is either a second chance or double jeopardy. Chair of Public Safety is Senator Nancy Skinner, Vice Chair is Sen. Joel Anderson, other State Senate members are Steven Bradford, Hannah-Beth Jackson, Holly Mitchell, Jeff Stone, and Scott Wiener. Our Sacramento pundits say Stone and Anderson are likely to vote no --- they're not sure about the others. Are you? 









Wednesday, March 21, 2018

WHAT HAPPENS WHEN MISTAKES IN LEGISLATION GET SIGNED INTO LAW? SB 1303 (Pan & Gagliani)


Physicians who accept injured workers as patients know that adverse Utilization Review (UR) decisions can devastate well planned diagnostic and therapeutic programs for injured workers. Some major facilities won't tolerate this risk and refuse to accept injured workers (this blog published a letter from Stanford saying just that -- see blog) 

Utilization Review is required in workers comp. It works like this. Doctor A interviews and examines Injured Worker B and decides that certain diagnostic tests and treatment are indicated. But in workers comp and in other insurance venues that decision gets forwarded to UR doctors who do not interview or examine the patient. Instead, they review the medical record and decide about authorization for the recommended diagnostic test and/or treatment. Absent this authorization the treatment program is stopped dead in its tracks. 


Under California law doctors who do utilization review need to be licensed physicians; however, the law does not say they must be licensed in California.This oversight has led to countless situations where  doctors not licensed in California reject treatment plans proposed by doctors who are licensed in the state. The rejections may be appealed but in the vast majority of cases the rejections are upheld. It would be simple enough to correct this oversight by amending the law so that UR has to be done by California licensed physicians. Insurance companies oppose such changes. 

California-licensed physicians are subject to discipline by the state medical board which has, as a matter of fact, recommended that all physicians doing UR on California cases be licensed by the state and be subject to discipline by the state board. By contrast, non-California licensed physicians are not subject to this state's medical board so are not subject to state board discipline in California. They are also not subject to discipline by their own state boards since California cases are out of their jurisdictions. This situation has led to frequent appeals, delayed care, further injury to untreated injured workers, and an exodus of doctors from industrial medicine (workers comp). 


Now comes SB 1303, introduced by Dr. Richard Pan to make sure that forensic autopsies are conducted by licensed physicians instead of by non-medically trained persons who've been designated or elected as coroners. However, as the bill is currently written, the requirement is for this job to be done by a "medical examiner ...  a licensed physician and surgeon duly qualified as a specialist in pathology. No mention is made of licensure in California. At least, not yet. 


In order to avoid travesties akin to what has been happening with UR for the last several years my recommendation is that medical examiners (MEs) shall meet the qualifications as already stated in SB 1303 and to these requirements be added mandatory licensure in California with the same oversight by the medical board as is provided for physicians licensed in California. No residence requirement is sought, only medical licensure in
California.


Otherwise, in highly disputed forensic cases such as we've described in previous editorials, the door is opened for interested parties  to seek out medical examiners who are not subject to the state medical board. The idea would be to secure an ME who is as malleable as some of the UR doctors have turned out to be. An ounce of prevention would be to make sure that physicians accepted as MEs are licensed in California.  

References


Senate Bill # 1303 (Pan and Galgani), 16 February 2016


Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody? The Weinmann Report, 19 February 2018


SB 1303, SB 1303 (Pan & Gagliani), would replace coroners with medical examiners, The Weinmann Report, 25 Feb 2018


"Probable Drowning (SB 1189, Pan & Jackson)," The Weinmann Report, 23 May 2016 (www.politicsofhealthcare.com) 


When injured workers aren't accepted, viz,, Stanford Med Ctr, The Weinmann Report, 11/25/15




Sunday, February 25, 2018

SB 1303 (Pan & Gagliani) would replace coroners with medical examiners (Part II)


Incredible as it may seem, it is still true in February of  2018 that non-medically trained persons are allowed by law to conduct autopsies including forensic autopsies where evidence that may be used at trial is being compiled. My previous post told about a particularly egregious abuse of the system, namely, the blatant political assertion of power politics to influence the collection of data to protect persons of authority who appear to have abused their authority to cover up a homicide. Now the tide is turning, or so some hope. Here's why:


State Senators Richard Pan, MD, and Cathleen Galgiani introduced SB 1303. This bill will require that counties of 500,000 or more use bona fide medical examiners for autopsies. The reliance on elected or appointed county coroners will go to the scrap heap of history. The medical examiner will have to be a liccnsed MD.

The wording of the bill needs to be more precise  -- it should say that the Medical Examiner shall be an M.D. licensed in California. There is a reason: when California's Utilization Review (UR) Guidelines were developed, licensed physicians were required to do UR. It was not felt necessary to say licensed in California since all the patients were treated in California  -- that led to a clever tactic by medical provider networks and insurance companies that then scoured the country for doctors who they felt would be willing to deny care to injured workers and others.

It helped insurance companies to use doctors not licensed in California because those doctors could not be held accountable to the California Medical Board for wrongful denials of care. In turn these denials of care enabled insurance companies to avoid paying for medical services. To avoid this quagmire in SB 1303 the bill should be amended to state that Medical Examiners shall be Medical Doctors (MDs) licensed in California. 

In Decmber of 2016 Chief Medical Examiner Bennet Omalu, MD, and Susan Parson, MD, resigned from their jobs in forensic pathology in San Joaquin County. Their complaint was "routine interference" from the Sheriff-Coroner in death investigations. The assertion was that political power was routinely asserted to impede  investigations where law enforcement personnel were involved, for instance, when a detained person died while in custody.

Loss of confidence in government has occurred as a result -- years of ignoring wrongful use of power under cover of authority has always required watchful eyes and is not a popular job. In the medical legal world, replacing elected or appointed coroners with Medical Examiners who are California licensed MDs is overdue.  

SB 1303 is sponsored by the Union of American Physicians and Dentists (UAPD) and by the California Medical Association (CMA). 

Note: Although this blog is independent, not supported by any corporate or union entity, this writer is a member of both UAPD and CMA.  

Monday, February 19, 2018

PART ONE: FORENSIC AUTOPSY LEGISLATION, SB 1189 & SB 1303: what happens when someone dies while in administrative custody?


The first hint that something was wrong in the way forensic autopsies were handled occurred after a psychiatric technician at Patton State Hospital found a decedent with "his head and torso in the trashcan, with his legs across the top of the hamper ... a cloth bag over head and face." The psych tech "pulled (the decedent) out of the trashcan." The man was dead.

A forensic autopsy showed a "a single small petechial hemohrrage in the upper outer quadrant of the left sclerae and conjunctivae, consistent with a head down position." There was also an "acute hemorrhage of the tongue."

Subsequently certain conclusions were drawn including that the psych tech had discovered a "probable drowning" -- not exactly a daring conclusion given the evidence. Official investigation and forensic autopsy followed. The physician's official findings seemed surprisingly tentative given the evidence. The diagnosis was recorded as a "probable drowning (italics added)." It was also stated that the decedent's "manner" of death was "undetermined."  Homicide was not discussed.

In this case the actual forensic autopsy was done by a licensed M.D. Witnesses present included an investigator from Patton State Hospital, one other MD, two detectives, and a forensic specialist from the San Bernardino Police Department. Why were witnesses associated with the decedent's detention present along with a preponderance of law enforcement personnel? The answer is that homicide was a consideration and so was possible mishandling of the case by law enforcement. The forensic autopsy became contentious

As a consequence of this case Senator Pan authored SB 1189 of which one of the provisions was to prevent law enforcement involved in or responsible for the custody of a decedent from being present at a forensic autopsy where their own actions or dereliction may have contributed to the decedent's demise.

The bill stated that the cause and manner of death must be determined by a licensed physician (this issue comes up again in SB 1303). One part of the bill that raised hackles was the section allowing law enforcement personnel to be present in the autopsy suite at the discretion of the pathologist and then only upon completion of pertinent education and training. That's when the sparks started flying. In due course, the bill got amended (some assert it was watered down), but was eventually signed into law on 28 September 2016 and became effective on 1 January 2017.

So now, we ask, why do we need another bill, SB 1303 (Pan)? Stay tuned for Part II. 

References

"Probable drowning (SB 1189, Pan & Jackson)," The Weinmann Report, www.politicsofhealthcare.com, 23 May 2016

"When is Death by Drowning Described as 'Undetermined?' How SB 1189 (Pan) Could Bring Clarity, The Weinmann Report, www.politicsofhealthcare.com, 30 May 2016

"Forensic Autopsy Bill, SB 1189, Clears Senate, Moves to Assembly," The Weinmann Report, www.politicsofhealthcare.com, 2 June 2016

News & Information, Vol. 31 No. 27 Senate Bill 1189 Amends Requirements Relating to Autopsies, www.jones-mayer.com/news/2017/01/03 




Wednesday, January 3, 2018

AB 72 (Bonta): Surprise! Network contraction is the new big bad wolf


Network Contraction, protected by AB 72,  deserves to be obliterated 

In healthcare plans including workers' compensation medical provider networks or MPNs the sick or injured person is at a distinct disadvantage. The reasons include legislation that was intended to help but which missed the mark. 

For review: "surprise billing" means the method by which out-of-network providers were allowed to bill patients more for services than their in-network counterparts. Assemblyman Bonta sought to correct this situation with Assembly Bill 72 which Governor Brown signed into law on 9/23/16. Unfortunately, the bill 
didn't go far enough because it left "network contraction" intact.

"Network contraction" means the method by which Medical Provider Networks (MPNs) or healthcare plans generally go about making sure they are not fully staffed with specialists. It is how the plans enable "out-of-network (OON) providers." This mechanism allows the plans to keep more of the premium dollar by deflecting costs out-of-network.  This technique, known as "in-network cost sharing," opens the door to non-network providers. This method allows healthcare networks, private plans as well as workers' comp, to understaff their networks -- then when the need arises they're obliged to call in outside consultants or OON providers. In private plans the extra cost is paid by the patient. In workers comp plans the patient is obliged to find the necessary specialist and pay the piper unless by legal means the workers comp entity can be made to pay.


Our recommendation is that AB 72 be expanded, either by amendment or by newly proposed legislation. The legislative language this publication recommends for legislative year 2018 is as follows:

"Healthcare plans and workers' compensation MPN plans shall be required to maintain full provider lists covering all specialties. The plans shall provide these lists to their in-network providers and to all of their subscribers and customers. Networks that fail in this requirement shall be penalized by fines and disciplinary action to be decided by further legislative action against the managers and officers found to be or to have been non-compliant." 


References

Physicians Advocacy Council, "We're on your side!," 08/07/17

"AB 72 (Bonta) targets physicians but leaves insurance companies and MPNs unscathed," The Weinmann Report, 10/06/16

"Veto or Amend AB 72 (Bonta)," The Weinmann Report, 09/16/16

"AAPS vs. Brown - Protecting Physicians and Patients from AB 72," Association of American Physicians & Surgeons," 10/20/17

"AAPS Files in 'Surprise Billing' Case, AAPS News, 09/2017