The Weinmann Report - politicsofhealthcare.com

PRESIDENT OBAMA'S OBLIQUE REFERENCE TO HEALTHCARE

2012-01-27T12:13:00.000-08:00

"I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently," was how President Obama summed up the ACA (Obamacare to opponents). It is why many believe the president may feel that the ACA in its present form overshot the mark and is prepared to reform it if the ACA survives the courts. We are particularly interested if Congress is exempting itself, staff, and favored others from coverage by the ACA, supposedly so good that it was made mandatory for the rest of us. Stay tuned!

See also my comments in The Hill Newspaper, Washington, DC, 1/27/2012, http://thehill.com/blogs/healthwatch/politics-elections/206325-obama-largel...

WHERE WAS OBAMACARE IN THE PRESIDENT'S STATE OF THE UNION ADDRESS?

2012-01-25T00:15:00.000-08:00

OBAMACARE is correctly known as the Affordable Care Act (ACA) or as the Patient Protection and Affordable Care Act, nick-named "Pee-Pahka" after its initials.

Precious little was heard about the ACA in the president's State of the Union speech. Some pundits suspect the president is preparing to slip away quietly from support of the ACA since specific parts of the bill are under bipartisan attack, e.g., Section 10320 which sets up the Independent Payment Advisory Board (the IPAB). The IPAB was originally the IMAB, Independent Medicare Advisory Board, derisively known at the time as Euthanasia for the Elderly. Disguised now as a more equitable board, the IPAB still aims its arrows straight for the hearts of the elderly. In fact, the IPAB would be made up of appointed persons, none elected, and would not have to be comprised of physicians. The IPAB would appoint bean counters, annoint them as health care deciders, and give them the power to undercut the best efforts of caring physicians.

The purpose of the IPAB would be to reduce costs and to decide which procedures in medical care, what facilities, and which equipment used in patient care should be considered medically necessary. There is resistance in Congress since an effort to repeal Section 10320 surfaced long ago, viz., Sen. John Cornyn, R- Texas. The president expects a tough time for re-election. Speculation is that he may not want to drag the ACA, mocked as Obamacare, behind him as he swims for political survival. Neither does he want to abandon it.

Earlier references to the ACA and Sec. 10320 appear in this blog, issues of 4/6/11 (Obamacare revisited), 1/18/11 (Repeal Section 10320), and 11/04/10 (Obamacare needs instant revision).

WHEN IS A CONCUSSION NOT A CONCUSSION?

2012-01-14T16:32:00.000-08:00

We can expect concussions not to be concussions whenever they're called by another name, for instance, elbow or knee injury, or even neck contusion, or, for that matter, head injury without concussion. Because of careless legislative writing, Assemblywoman Hayashi's bill, AB 25, now law, is expected to have consequences unanticipated by legislators. In football, some head injuries occur after a tackle when the player falls backwards, bouncing his head against the turf, but not getting overtly knocked out. The American Academy of Neurology has defined such an injury as one in which the injured party has had his "bell rung." Such an injury may be defined as concussion without loss of consciousness.

Up until 1 January 2012 when Hayashi's legislation became law, decisions could be made on the field, sometimes incorrectly. Now the onus has changed: once a player is removed because of a suspected concussion, legislative counsel's digest of the bill states that "the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance (italics added) from a licensed health care provider ..." This bill, supported by well meaning but naieve medical organizations, lends itself to being circumvented by players eager to return to the game and by coaches and team managers who want their stars on the field and not on the bench. Waiting for "written clearance" may be felt by some to take too long because players won't be able to get "written clearance" soon enough. Allowing players to return without "written clearance," even when clearly safe to do so, will be a violation of the law subject to criminal penalties.

The law does not specify that neurological specialists must be involved. A designated "licensed health care provider" may ask for clearance by a neurologicacal specialist, but that step isn't mandated in the new law. Eager players and coaches may be tempted to find ways around this legislation. Even so, if a concussion has occurred, the new law as written should be protective of injured players and should work if all games are attended by "a licensed health provider" who has back-up from neurological specialists. But this last step is not mandated in the new law. Furthermore, even if it were, safety in clearing the player to reurn, given current medical and legal standards, might very well require a player to miss a game or two while he or she goes for a brain scan or other neurological testing. We will soon enough find out which schools want to take a chance and return players too soon based on diagnoses other than concussion, for instance, neck contusions for which players can be returned to the field without written authorization. Sooner or later a mistake in judgment will result in violation of the law and criminal prosecution. That's when doctors will think that ordinary civil litigation known as malpractice will be a cakewalk by comparison. If they have followed the law as written, our expectation is that criminal liability should be avoidable but that increased civil litigation is likely.

Push will come to shove when schools and coaches look for ways to avoid pulling athletes out of action because of possible concussion injury because they know once they do they may not be able to get them certified in time for the next game. The spectre of "unanticipated consequences" may open the door to criminal liability.

Sports concussions, brain tumors, and legislation (Assemblymembers Hayashi and Halderman at work)

2012-01-09T11:24:00.000-08:00

Assemblywoman Mary Hayashi has disclosed that she has a benign brain tumor that her attorney reportedly said "clouded her judgment," Mintz and Harmon, Bay Area News Group, 1/07/12. The report implies that the benign brain tumor contributed to the lapse that allowed her to walk out of Nieman-Marcus with unpaid merchandise and for which she has been convicted of a misdemeanor. We sadly acknowledge the Assemblywoman's plight and wish her well for the future.

In the meantime we've been asked how her situation compares to the situation endured by Sen. Ted Kennedy whose brain tumor was malignant and caused occasional convulsions. Kennedy's condition was inevitably fatal whereas Hayashi's is benign. The latest word from her attorney is that "it is being treated. It's no longer affecting her concentration or her judgment" (Daily Post, Jan. 7-8, 2012). Unfortunately, this statement implies that Hayashi's judgment was previously impaired during which time she authored two poorly drafted legislative bills that Gov. Brown has since signed into law (see our previous blogs).

Because the legal charge against Hayashi was reduced from a felony to a misdemeanor she will be able to keep her assembly seat and finish her term. She will pay a fine, do three years of probation, and stay at least 50 feet away from the Neiman-Marcus store. Her carelessness in creating legislation is documented well enough to repeat here.

Re AB 25 (Hayashi, re brain concussions):
This bill is now law thanks to Gov. Brown's signature. It means that athletes who sustain apparent concussions on the field must be withdrawn from play and not allowed to return until they're judged able to do so by somebody designated to make such judgments but not necessarily including neurological or neurosurgical specialists. Prior to passage of this law, healthcare professionals were at risk for civil liability better known as malpractice for wrongful decisions resulting in harm to players. Since many doctors undertook this responsibility on a pro bono (unpaid) basis, parents, schools, and teams often cut a little slack in the process. Not so anymore because the issue has now been raised to one of criminal liability. It is no longer just a civil matter to make a mistake. It is now a matter of potential criminal liability. High schools are unlikely to afford putting in place optimal protective measures, e.g., an on-site neurological specialist, ambulances and EMT vehicles discreetly parked near-by, etc.

Hayashi and staff were offered ways to improve the bill without pulling it. These offers went unanswered. The bill was supported by certain medical organizations that meant well, that intended to protect players, but that were short-sighted in their eagerness to have a seat at the legislative table. That seat has now become the hot-seat. Hayashi should offer protective amendments while she still has the chance.

AB 655 (Hayashi, transfer of peer review material): This bill, now signed into law by Gov. Brown, was also well intended; unfortunately, it was written in such a careless manner that it allows false and defamatory materials to be included with whatever peer review documentation is transferred from one hospital to another (this process is how a physician gets practice privileges at additional hospitals).

Hayashi and staff were advised about the defect in the bill and were offered language to abort the careless language in the bill. Hayashi and staff did not offer a reply. Instead, Hayashi belittled the doctors and falsely told the Assembly that there was no opposition to the bill even when there were about 50 protests already on file (none were from fellow legislators).

Linda Halderman, MD, Assemblywoman, told the Assembly that she'd received a record number of inquiries on this bill. Hayashi told the Assembly that there was no opposition. Halderman then stated that she would support the bill. We believe that Halderman should have known better, indeed, that she did know better and gave Hayashi support in a legislative charade where Halderman pretended to ask a question and then dove head first into the Hayashi camp. The shameful show got video-recorded and is still available through the Assembly itself. We can now watch for Halderman's rise in insider legislative circles (Hayashi's chair and future are in doubt even though she can finish her term). All the same, there is still time for Hayashi to seek corrective amendments to her bills. The question is whether or not she wants to do so.

In the meantime, doctors are now at risk of criminal culpability for errors in judgment and should fully understand the consequences of participating in sports activities that are associated with concussions (such as but not limited to football, hockey, soccer, boxing).

SHOPLIFTING (alleged) and LAWMAKING (also alleged): how careless legislation becomes law

2011-12-06T21:27:00.000-08:00

Mary Hayashi's current conflict with the law is based on her having reportedly been nabbed in the act of shoplifting. Her defense so far is that she inadvertently stepped outside the store with a shopping bag loaded with expensive clothing and that she did so because she'd been distracted by cell phone calls. Sounds careless, doesn't it? But not necessarily done with criminal intent. How does this personal behavior jive with her professional conduct as a legislator?

Remember that during the debate re peer review over AB 655 Hayashi repeatedly stated that there was no opposition. It turns out that this statement is false. The California Society of Industrial Medicine and Surgery sent an advisory letter about defects in the bill while the Alliance for Patient Safety openly opposed the bill. Hayashi had plenty of time to correct the deficiencies in the bill, namely, that as written the legislation allows false and defamatory allegations against good doctors to be transferred from one hospital to another. Hayashi ignored advice to clean up this language. Instead, she belittled doctors who filed protests. Prestigious doctors such as R.V. Rao, MD, Chief of Surgery, the subject of a previous blog of ours, did their level best to advise Hayashi about her folly.

The California Medical Association wanted the bill as is -- in due course investigation will tell us why since the fact is that the chief beneficiaries of the bill are the clients of the California Hospital Association. Hayashi could have written a better bill, at least, some of us think she could have done so. On the other hand, if she's as casual and distracted about bill writing as she claims she is about shopping, maybe not.

Let's look at AB 25, another Hayashi bill signed into law, also well intentioned and also flawed. This bill, signed into law by Gov. Brown who also signed AB 655 into law, takes effect on January 1st, 2012. It will require school districts with extracurricular sports activities "to immediately remove ... an athlete who is suspected of sustaining a concussion or head injury ... the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance from, a licensed health care provider, as specified."

"As specified" as what? Is neurological or neurosurgical attention required? Will any ol' "licensed health care provider" qualify for the job? The bill doesn't "specify" that physicians must make these decisions. Prior to passage of this bill, physicians who volunteered for this function put their practices on the line even though they may've worked on a pro bono basis. They risked being named in civil liability suits, e.g., malpractice accusations. Now they're also eligible for criminal accusations. One would have expected the California Neurology Society to seek malpractice waivers for physicians who accept these assignments on a pro bono basis and at the least to have tried to exempt them from criminal responsibility.

As devotees of the Conrad Murray show know, malpractice and criminal liability are separate and distinct. In the Murray trial, the judge stated that the trial was not about malpractice. It was about criminal activity. So it is now with AB 25 for concussions and head injuries sustained by high school athletes. Healthcare providers who accept these assignments may now risk double jeopardy: civil litigation for malpractice and criminal litigation thanks to Hayashi's other folly.

As to Hayashi herself, we're saddened and sorry but not surprised. Anybody who strolls out of a store with a coupla' grand of clothing in a shopping bag doesn't surprise us when she's equally careless with legislation.

AB 655 (Hayashi's Hypocrisy) : The Sequel

2011-10-29T14:16:00.000-07:00

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)

2011-10-12T10:15:00.000-07:00

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

2011-10-12T02:03:00.000-07:00

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!

2011-10-07T22:58:00.000-07:00

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.

2011-10-03T23:43:00.000-07:00

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.

AB 655 (HAYASHI): IZZIT PEER REVIEW REFORM OR HYPOCRISY?

2011-09-19T12:05:00.000-07:00

AB 655 (Hayashi) passed the legislature without a dissenting vote. Its alleged purpose, to facilitate transfer of peer review information from one hospital to another, is belied by a current Appellate decision for which the CMA appropriately filed an amicus for Dr. El-Attar.

AB 655 (Hayashi) is now on the governor's desk awaiting his signature or possible veto despite lopsided approval by a legislature that ignored numerous protests from physicians, lawyers, and physicians who are also lawyers.

The chief reason for the protests has to do with the repeatedly deceptive promotion of the bill by the author and her staff. The legislature was repeatedly told that there was no opposition to the bill. We now have a smoking gun, namely, a video where Assemblyperson Hayashi actually says as much to the legislature before the final vote. In that video, Assemblyperson Halderman, a physician and experienced staff member before getting elected to the Assembly, act out what appears to this writer to be a charade. Halderman points out that her office received considerable notice of opposition to the bill. Would Assemblyperson Hayashi explain? Hayashi obliges. Hayashi then ignores the sham peer review issue, hints that the opposition came from doctors without licenses, and implies that the legitimate points of opposition were solved by amendments.

Wrong, wrong: the opposition focussed on the failure of the bill to make sure that sham peer review material, false or defamatory material, was excluded from peer review transer. The author didn't want that, the hospital association didn't want that, and, mirabile dictu, neither did the lobbyists for the California Medical Association. More mirabile dictu, the CMA sponsored AB 655 despite the work of its own lawyers who worked in support of Dr. El-Ettar in the court case.

When Halderman rose to speak to the Assembly, she said by way of introduction that she supported the bill. Then, in closing, she repeated her support of the bill. Nevertheless, it was Hayashi herself who declined to acknowledge problems with sham peer review in the bill. It is our postion that AB 655 as currently written will enable sham peer review.

AB 655 runs afoul of the recent Appellate Court decision in Osamah A. El-Attar v. Presbyterian Hollywood Medical Center which states why peer review must be conducted fairly. The CMA said that "peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest."

CMA also stated that "peer review that is not conducted fairly results in harm to both patients and healing arts practioners by limiting access to care."

While the court case in support of El-Attar was in progress, CMA lobbying promoted AB 655 and resisted significant amendments to identify and exclude sham peer review. Are we being unduly argumentative by asking how one hand of an organization appears to have worked in opposition to the other hand?

This blog has asked for an explanation from the CMA. So should anyone interested in preserving honest peer review. In the meantime, a veto recommendation is appropriate.

The CMA could reconsider its support of AB 655 on September 22nd. We'll see what happens, then provide an update on what appears to be a comedy of errors without anyone laughing.

SENATE BILL 923 (DELEON) BITES THE DUST WHILE ASSEMBLY BILL 584 (FONG) SOARS!

2011-09-13T20:20:00.000-07:00

SB 923 (Deleon)

In our last post we said this bill needed to be thrashed before it got trashed. It got both. The thrashing and trashing were well deserved. The language in the bill was insulated such that no money need have ended up in the hands of the PTPs. All of it could have gone to management without violating the language in the printed bill.

AB 584 (Fong)

This bill will rid us of utilization review by doctors who are not licensed in California. These doctors do not have to take the 12-hour pain management course that treating doctors licensed in California are obliged to take. These doctors are enabled to practice medicine without a California license and may get away with malpractice without a blemish on their records. The bill passed the legislature and awaits Governor Brown's signature. Readers of this blog should fax the Governor and advise him to sign it into law (916-558-3177). Don't forget to sign your own fax!

SB 923 (DELEON): WHO ACTUALLY BENEFITS? THIS BILL DESERVES A SOUND THRASHING BEFORE IT'S TRASHED.

2011-08-30T11:33:00.000-07:00

SB 923 (DELEON) if passed into law will require the Administrative Director of the Division of Workers Compensation to adopt the Medicare fee schedule for medical treatment and medical-legal diagnostic tests for injured workers. These tests are the gauges that insurers use to document level of injury, need for treatment, and reimbursement to the injured worker. Specialists do this level of testing: it is used not only to establish level of impairment, but also to document apportionment, a key item for employers. By abandoning the already low Office Medical Fee Schedule and changing to the even lower Medicare schedule, the proponents assure themselves of loss of medical specialists. This writer believes that is the purpose of the bill, that and one other item ...

Tee Guidotti in an e-mail to LinkedIn asked what happens "if well established practitioners ... turn their backs on injured workers?" The proper reply is that what is actually happening is that the proponents of SB 923 (Deleon) have turned their backs on the specialists and spurned the injured workers at the same time.

That is why SB 923 (Deleon) is opposed by the California Medical Association, California Conference of Machinists, California Society for Industrial Medicine and Surgery, California Chiropractic Association, California Orthopedic Association, California Applicants' Attorneys Association, Latino Comp, The Latina/Latino Roundtable, La Raza Roundtable de California, Voters Injured At Work, Interfaith Community of Los Angeles, LULAC (League of United Latin American Citizens), and by individuals, e.g., Dolores Huerta, Jeffrey Coe, MD, B.J. Hastings, MD, Robert Weinmann, MD, Michael Post, MD, Roger Kent, MD, and many others.

A warning shot against the bill was fired by Stuart A. Bussey, MD, JD, member of the bar, and primary treating physician (PTP) whose committee testimony acknowledged that the bill would give his primary care practice "a boost" but would also leave him "holding the bag" (the malpractice one, methinks) when he would be unable to get specialists for patients who needed specialized evaluations.

... oh yes, I did promise above to mention "one other item," so here it is. My research indicates that U.S. HealthWorks (USHW) asserts it can't easily recruit primary treating physicians (PTPs). So USHW sponsors a bill that would take away money from the specialists and redistribute it to the PTPs. Only the bill doesn't explicitly say that's what USHW management will do.

USHW receives payment for the services provided by its PTPs. A portion of this money goes to the non-physician management company and investors that actually own the PTP clinics. The rest goes to the PTPs for direct patient care. There is no assurance that once the bill passes into law the management company won't increase its own fee to itself. In a nutshell, there's nothing in the bill that would make sure that the money would go to the cadre of beleagured USHW PTPs.

A better way to accomplish the stated goals of the proponents of this bill would be to revise the current Office Medical Fee Schedule (OMFS). In its current form, SB 923 deserves to be thrashed and trashed.

CMA DECLARES "NO CONTROVERSY" RE EL-ATTAR PEER REVIEW CASE!

2011-08-26T21:01:00.000-07:00

In response to a query from The Alliance for Patient Safety posed by Gil Mileikowsky, MD, a question indicating that there was "confusion" about which side CMA was on in the case of the El-Attar versus Hollywood Presbyterian Medical Center peer review case, the following response was provided by Astrid Meghrigian: "There is no controversy - the Court made a mistake and CMA is working to get it corrected."

Meghrigian attached the CMA brief in support of the physician (relax, just read it -- it's an important judicial statement and it's only 5 pages!). All physicians involved in peer review should read it. So should CMA staff and officers who worked on AB 655 (Hayashi).

John Young, MD, commented on Hayashi's peer review bill: "AB 655 serves no useful purpose and ... should be dumped."

Hayashi's bill spits in the face of the Appeals Court findings in El-Attar versus Hollywood Presbyterian Medical Center because as it's currently written it enables sham peer review. By contrast, CMA says that "peer review, fairly conducted, is essential to preserving the highest standards of medical practice" and that "peer review that is not conducted fairly results in harm to both patients and healing arts practitioners by limiting access to care."

AB 655 (Hayashi) enables sham peer review. The surprise should be that, once this weakness in the bill was discovered, the author declined to make indicated amendments while the CMA continued to sponsor it.

AB 655 (Hayashi) versus Osamah A. El-Attar v. Hollywood Presbyterian Med Ctr

2011-08-24T12:53:00.000-07:00

"Allowing the Governing Board to select the hearing officer and JRC panel is not an inconsequential violation of the Bylaws. Rather, it undermines the purpose of the peer review mechansim ... Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood."

AB 655 (Hayashi) flies in the face of this case and needs corrective language in the form of amendments. Better still would be to hold the bill over until next year (making it a two-year bill) so it can be re-worked and re-submitted with language that'll protect against sham peer review.

The California Society of Industrial Medicine and Surgery (CSIMS) filed a letter of "Concern" on August 24th. To the best of this writer's knowledge, the Union of American Physicians and Dentists (UAPD) remains "watch" while the California Medical Association (CMA) remains the sponsor for a bill that looks as though it were written by the California Hospital Association (CHA). In the Osamah A. El-Attar case, 2nd Appellate District, Division 4, B209056, the CMA provided Amicus Curiae on behalf of Defendant and Respondent (Hollywood Presbyterian Medical Center).

Source: Court document "Certified for Paritial Publication," Court of Appeal of the State of California, Second Appellate District, Division Four, filed 8/19/11 (Los Angeles County Super. Ct. No. BS105623).

However, from the CMA website, "Peer Review: El-Attar, MD, v. Hollywood Presbyterian Medical Center," we learn that "Dr. El-Attar's medical staff privileges were not renewed by the hospital's governing Board. Following a finding by the Medical Executive Committee (MEC) that there was no basis for the hospital to deny Dr. El-Attar's reappointment to the medical staff, the hospital bypassed the MEC and picked its own panel and hearing officer over Dr. El-Attar's objections. CMA filed an amicus brief in support of Dr. El-Attar (italics added).

The El-Attar court case and AB 655 (Hayahsi) have in common that they both reflect increasing tension over control of the medical staff. Hospitals want control of physicians. It's an end-run around the bar on corporate practice because it's a way for hospitals to become de facto bosses over physicians' practices. Physicians are supposed to work in the interest of patients, not corporate entities.

AB 655 (Hayashi) as currently written tilts too far in favor of hospital administrations. Unamended, the bill pours physicians' rights and privileges down the proverbial drain. Language recently offered by the California Society of Industrial Medicine and Surgery (CSIMS) could cure this defect. We urge its incorporation into the bill. Absent that, we recommend converting AB 655 into a two-year bill.

HOW TO PROMOTE SHAM PEER REVIEW WITHOUT EVEN TRYING

2011-08-22T01:58:00.000-07:00

AB 655 (Hayashi) is supposed to be about improving peer review in our hospitals. It's supposed to be about protecting patients. The intent of the bill is to create legislation to facilitate the transfer of peer review information among hospitals. Sadly, the bill is so carelessly written that it would also allow false and defamatory material to be transferred. Although this weakness in the proposed legislation has been repeatedly pointed out to the author, the Assemblywoman has remained unconvinced, in part because the bill is sponsored by the California Medical Association (CMA) but not without internal controversy. Some CMA members are mystified that a physicians' organization would support a bill that hands over power to hospital administrations.

One portion of the proposed legislation states that "all relevant (italics added) peer review information ... shall be made available to the licentiate." Fair enough, right? The physician undergoing peer review gets to know what kind of information is being passed around, right? No, wrong!

The word "relevant" is the bug in this sandwich. It means that the hospital in charge of transferring the peer review material and/or the hospital receiving it will get to decide what's relevant or isn't.

Solution: drop the word, "relevant" and make sure that all, all of the transferred information, is given to the physician undergoing peer review.

Another part of the bill lets the hospital off the hook entirely. Here's how it's done: the bill says that a responding peer review organization "is not obligated" to produce the pertinent peer review information unless the doctor undegoing peer review signs a release.

Solution: the responding peer review organization should not release anything at all until and unless the physician undergoing peer review signs a release.

Hayashi and staff have ignored this advice for the entire career of this bill to date. The bill should be annointed The Sham Peer Review Enabling Bill.

AB 655 (Hayashi) in its present form is an invitation to lawsuits, in fact, it's a litigator's dream, a nightmare for good doctors who run afoul of hospital administrations, and a catastrophe for patients.

The California Society of Industrial Medicine and Surgery (CSIMS) is opposed, the Union of American Physicians and Dentists (UAPD) is watch, and the California Neurology Society (CNS) has declined to have a position.

SHAM PEER REVIEW

2011-08-08T12:30:00.000-07:00

Sham peer review in healthcare occurs when a peer review process in a hospital, foundation, or other medical organization accepts false or defamatory material about a physician as part of a peer review hearing.

A famous non-medical example is that of Fyodor Dostoyevsky, Russian novelist of the late 19th century, author of "Crime and Punishment," who, early in his career, participated in an abortive anti-czarist demonstration. He and his colleagues were arrested and sentenced to death by firing squad. Blind folds on and against the proverbial wall, just as the command to fire was about to be given, they heard a messenger from the Czar gallop onto the execution field with a last minute reprieve. It was learned later that the scheduled execution was a sham.

In the United States sham peer review is escalating. In California the situation is getting a boost from lawmakers.

AB 655 (Hayashi), if passed into law without further amendment, would allow transfer of peer review material from one hospital to another and would allow unproved, false, and defamatory material to be included in the transfer if the hospital transferring the information had allowed the bogus accusations to become part of their own peer review record.

AB 655 (Hayashi) would require a peer review body to respond to the request of another peer review body to produce relevant peer review information and would provide that the information produced is not subject to discovery. The bill would require that all relevant information produced be made available to the licentiate by the requesting peer review body. It would require the the requesting peer review body to indemnify the responding peer review body and would require the licentiate under review to, upon request, release the responding peer review body from liability.

In other words, AB 655 (Hayashi) is skewed to the disadvantage of physicians. What is not fully understood is why the bill is sponsored by the California Medical Association. In fact, the CMA has had a flurry of activity on the bill. This writer has been involved. Here's how: I spoke with the CMA president who arranged for me to speak to the CMA CEO. I recommended that the CMA, sponsor of the bill, make AB 655 into a two-year bill if it could not be suitably amended, e.g., so that the physician under peer review could object to peer review material considered false, inaccurate, or defamatory. A small amendment was inserted into the bill, lines 24 to 27, which help somewhat but not enough. However, without CMA participation even this small amendment could not have been achieved. CMA gets credit for this adjustment even if it's not enough to allay fears that the bill puts even good physicians' careers on the chopping block.

It turns out that CMA officers, trustees, and staff were not in accord on how to handle this bill. The final power to oppose or support the bill was with CMA staff, not with CMA officers or trustees. The bill hands over power to hospital administrations. It might just as well have been written by the California Hospital Administration (CHA).

There is oppostion, most authoritatively from The Alliance for Patient Safety, http://allianceforpatientsafety.org -- I recommend visiting this site. In the meantime, my opinion is that AB 655 is not equitable legislation. It is a virtual firing squad aimed at beleagured physicians who had the temerity to challenge hospital administrations as did Evelyn Li, MD, and Vishendra Rao, MD, viz, LifeForSaleMovie.com, a documentary movie that the undersigned said "explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view."

A temporary solution that would give breathing room to legislators and stakeholeders would be to hold this bill over to 2012. In its current form, AB 655 is likely to be a catastrophe for physicians' peer review, an annoyance for hospitals and foundations, and a bonanza for lawyers.

UTILIZATION REVIEW BLUNDER COULD BE CORRECTED SOON: MEDICAL BOARD SUPPORTS AB 584 (FONG)

2011-08-05T19:11:00.000-07:00

On August 5, 2011, the Medical Board of California (MBC) took a formal stand in favor of AB 584 (Fong), the bill that will give carpetbagger utilization review physicians their walking papers.

The MBC said that AB 584 "clarifies current law to provide that physicians performing utilization review for injured workers must be licensed in California" and that so doing is in line with the MBC's mission of consumer protection. Readers of The Weinmann Report will remember that the previous governor got his Office of Administrative Law to issue a ruling that allowed non-California licensed physicians to overrule duly licensed California doctors in matters of medical treatment and surgery for injured workers.

Non-California licensed doctors doing utilization review can make huge mistakes of judgement or just be plain careless without risking investigation or discipline by the MBC since they aren't subject to the MBC's authority. They are also not subject to discipline in the states where they have licenses because the medical boards of other states don't have jurisdiction in California. In short, carpetbagger physicians get a free ride and also get paid for it.

Meanwhile, cash-short California gets stiffed. Thanks to former Gov. Schwarzenegger, California has been giving away money-by-the-bucket to non-California licensed doctors who aren't obliged to pay fees to the MBC.

California's licensed treating physicians are required to take a 12-hour course in pain management. This requirement need not be met by their non-California licensed colleagues who under current Schwarzenegger law are allowed to deny care for chronic pain ordered by colleagues who have taken the mandatory training in pain management.

Readers interested in the history of this effort may want to review "How to practice medicine without a license," San Francisco Chronicle, 8/29/08, by this author.

It's time to discard this corruption of utilization review. That aim can be achieved if AB 584 (Fong) becomes law.

As of August 5th AB 584 (Fong) is being held on "suspense" in Senate Appropriations, Senator Kehoe, Chair. The Weinmann Report recommends readers to ask Sen. Kehoe to remove the bill from suspense and to support its passage so Gov. Brown can sign it into law.

US HealthWorks and the RBRVS

2011-06-27T00:40:00.000-07:00

HOT ISSUE: THE RBRVS FEE SCHEDULE IN WORKERS COMP

SB 923 (De Leon) will increase fees to primary treating physicians while reducing payment to specialists. The sponsor of the bill is USHealthWorks (USHW). Ron Kent, MD, neurologist, spoke at the Insurance Committee hearing and said that close to 80% of neurologists stopped treating injured workers in states that adopted the RBRVS schedule. Stuart Bussey, MD, JD, primary practice physician, speaking at the same committee hearing, said "Even though I'm a primary care doctor and I would get a boost from this, losing access to orthopedic surgeons, neurologists and cardiologists, I'll be cutting my own throat." Bussey then pointed out that without access to specialists the primary treating physician could find himself holding the malpractice bag.

By contrast, workcompcentral reported that Andy Parker, MD, Vice President of USHW, reported that he has not seen any access issues because of the RBRVS fee schedule. Did Dr. Parker pay attention when Dr. Kent and Dr. Bussey testified or did he ignore their testimony?

A further question that merits investigation is the extent to which non-physician corporate ownership, even if only partial, dictates how USHW functions as an entity providing medical care to injured workers. My understanding is that there are two entities, a management company and a medical group. One of the non-physician owners of the management company is Daniel Crowley.

PTPs or primary treating physicians are responsible for getting specialty consultation and care for injured workers, but, as Dr. Bussey indicated, that can't be done if they've left the program. It can't be done, as Dr. Kent indicated, if the majority of neurologists and other specialists quit accepting injured workers as patients.

The extent to which non-physician corporate ownership through the management company plays a role in how the medical group dispenses services is a reasonable area to explore further.

HOW TO PROTECT INJURED WORKERS OUT OF CARE BY TAKING A LEAF FROM MEDICARE'S RBRVS SYSTEM

2011-06-21T00:50:00.000-07:00

Senate Bill 923 (De Leon) is supposed to assist injured workers by increasing access to care. More likely, if it gets signed into law, it'll protect them out of much of the care they currently get.

As if Utilization Review by doctors without licensure in California weren't bad enough, we now have another opportunity to stick it to injured workers by making them subject to the Medicare RBRVS fee schedule. This schedule was tried in Hawaii and in Texas. Both states lost the participation of so many specialists that both states had to increase the conversion factor to keep their specialists in the system. With this dismal record well known in healthcare circles, it remains a wonder that the good Senator De Leon wants to try it out again with injured workers in California as the latest guinea pigs.

The current method of reimbursement to physicians who treat injured workers in California follows the Office Medical Fee Schedule (OMFS) which currently pays doctors some of the lowest reimbursement rates in the USA. If that's so, then how could the RBRVS be worse? The answer is that the Medicare RBRVS is geared to the elderly and provides largely geriatric care whereas the OMFS is geared to injured workers so they can return to work. The RBRVS is supposed to provide care although at the present time even that is in danger because of Section 10320 of the Affordable Care Act and the directive to establish an unelected Independent Payment Advisory Board (IPAB) whose primary purpose is to cut costs to Medicare. Installing the Medicare RBRVS system into workers comp and replacing the OMFS with it only shows that the researchers for SB 923 didn't do enough homework.

If the RBRVS is inserted into the system, we can count on many specialists including surgeons to withdraw from workers comp and industrial medicine. When the injured workers discover as a community that they've been shortchanged -- such discoveries take a few years -- the politicians who put the screws to them will have left office and gone to greener pastures, e.g., some will be working for insurance companies. The legacy they leave if SB 923 gets signed into law will be one of deprivation and denial of care.

Our advice: since SB 923 is expected to be heard in the Assembly Insurance Committee on June 23rd, there's still time to tell 'em what you think by faxing the committee at 916-319-2086 and its Chair, Assemblyman Jose Solorio, 916-319-2169.

Aside from Texas and Hawaii, the RBRVS has been tried in other states, e.g., Florida, Massachusetts, and Maryland, all without success. In this report we've named five states in which the RBRVS failed. The RBRVS should not be foisted upon our injured workers in California. SB 923 (De Leon) desrves to be soundly defeated, badly enough so that it won't come back for a long time.

Assembly Bill 584 (Fong): stops the unlicensed practice of medicine

2011-06-01T11:45:00.000-07:00

AB 584 (Fong) is an important step in the right direction and should be supported by physicians and by all of their organizations.

As matters stand now, injured workers may legally be denied access to diagnostic tests and treatment needed to diagnose and treat their injuries even when properly prescribed by duly licensed California doctors.

The legal maneuver used to deprive injured workers of indicated and necessary treatment is based on the Schwarzenegger adaptation of utilization review. Utilization review is required by California law -- it's supposed to be a way to supervise treating doctors and prevent overutilization of services. It is primarily a cost control measure.

In 2005 the Schwarzenegger administration persuaded the Office of Administrative Law to agree that utlization review wasn't medical practice and, therefore, did not require California state licensure. Never mind that the Medical Board of California stated that utilization review was certainly an aspect of medical practice. Once the leash was relaxed on the insurance companies, several insurance groups and their management cohorts hired doctors for utilization review who were not licensed in California and who would not, therefore, be required to take the special 12-hour course in pain management that is required of California licensed doctors.

The upshot is that under current law utilization review doctors who are not licensed in California are allowed to overrule California doctors who are licensed in California.

These non-California licensed doctors are not responsible for their mistakes before the Medical Board of California because they're not licensed in California. They're also not responsible to the medical boards of the states in which they are licensed because those states don't have jurisdiction in California.

The non-California licensed doctors are also not obliged to pay licensure fees to the Medical Board -- they get a free ride while their licensed colleagues are obliged not only to pay for licensure but also for a mandatory pain management course.

Injured workers in California are subjected to delays and denials of treatment by doctors who should not have been allowed to practice in California in the first place.

The Schwarzenegger workers comp policy has caused innumerable delays and denials of treatment and has caused countless workers to lose out on the treatment that could have returned them to work.

Physicians in California should reach out in support of AB 584 (Fong). The bill has already passed the Assembly. It should clear the Senate. Then Gov. Brown should sign it into law.

Senate Bill 866 (Hernandez) re prescription drug benefits

2011-06-01T09:10:00.000-07:00

SB 866 (Hernandez) will facilitate the efforts of physicians to care for patients. It will ease the burden of prior authorization and utilization review. It will cut down on wrongful delays and denials of treatment.

This bill is analogous to AB 584 (Fong) in that it reduces how utilization review obstructs the practice of medicine. Here are the essential points: only one universal form will be required for prior authorization. The form is supposed to be limited to two pages; however, there's nothing in the bill that specifies font size (rumors that the insurance companies are shopping for microscopic print fonts are probably exaggerated). The information is then supposed to be electronically available and transmissible. Most important, the company has 48 hours to reply. After that, in the absence of a reply, automatic approval of the physician's prescription ensues (even though I can think of a way around that). All the same, the bill is unequivocal in its support of patients and their doctors.

Support can be expected from the pharmaceutical industry which stands to benefit from reduced prior authorization. Opposition can be expected from the insurance industry which benefits from as much utilization review and prior authorization as it can foist on the public and the healthcare profession generally. Practicing physicians should support SB 866.

Assembly Bill 369 (Huffman) re "stepwise" prescriptions

2011-06-01T08:10:00.000-07:00

AB 369 (Huffman) will put the brakes on a favored method insurance companies use to control prescriptive medication. The method is "stepwise" prescribing and works like this: doctor Kindguy wants to prescribe the medication he believes will most likely relieve his patient's pain but finds that he is obstructed in so doing by the patient's insurance company which requires the doctor to try at least two lesser level, that is, cheaper medications, first. Doctors will be obliged to follow this pathway even against their own medical judgment and will retain medical liability while the lesser level medications are foisted upon hapless patients.

Huffman's bill will authorize physicians to decide how long a lesser level drug should be used and would restrict the insurance company from requiring patients to try more than two such medications. Insurance companies want to increase profits without increasing premium costs. This way allows them to shift the cost burden to medications. Pharmaceutical companies object because it makes their best, and sometimes their most expensive, medications less accessible. Physicians should be supportive of the legislation because it'll dispense with still another layer of utilization control.

This writer call the office of Speaker Perez and asked that AB 369 be sent to the floor for a vote.

Assembly Bill 310 (Ma) re "tiered pricing" of medications

2011-06-01T07:40:00.000-07:00

Assembly Bill 310 (Ma) would put a stop to so-called "tiered pricing" of medications. Currently, an insured person may be required to make co-payment for prescribed medication. Usually the payment will be a fixed amount, that is, a fixed-dollar amount. Insurance companies want patients to pay more for some medicines than others, that is, not a fixed-dollar ammount, but a percentage of the cost. That means patients will pay more for certain medications than for others despite being insured. The percentage may rise or fall at the pleasure of the insurance company which may use this method to delay or defray outright raises in insurance premiums. AB 310 will limit the amount of co-payment that the insurance company can force subscribers to pay. At the time of this writing this legislation would target medications costing more than $150 per month.

Pharmaceutical companies favor the bill because it'll make their medications, especially the expensive ones, more accessible. Physicians should favor the bill because it'll remove one more layer of bureaucratic utilization control. Currently, physicians may prescribe the best medication for their patients only to find out that the insurance company for the patient has put the medication out of reach. Meanwhile, the physician retains medical liability.

Assemblywoman Fiona Ma previously carried AB 245 which would have required government agencies including the medical board to expunge unproved allegations against accused physicians from government websites. That bill did not pass. This one should.

This writer called Speaker Perez's office to request that AB 310 come to the floor for a vote.

OBAMACARE REVISITED

2011-04-06T10:49:00.000-07:00

OBAMACARE, technically, the Affordable Care Act or ACA, is due for a revision, something we were originally told couldn't be done. In our previous piece on this subject, we pointed out flaws in Section 10320, the part of the ACA that creates an IPAB or Independent Payment Advisory Board. This part of Obamacare establishes the authority for an unelected group of bureaucrats, appointed by politicians, to have authority over what is payable and what isn't, including Medicare. Section 10320 poses danger to hospitals, their patients, and their doctors. It is a plain and simple alternative to classical rationing. It's the Obamacare answer to the Palin-protagonists whose fear of rationing began a hubbub that won't end. Senator John Cornym introduced legislation to repeal Section 10320. He has been joined by Congressional Representative Phil Roe. Sponsors and supporters include the American Hospital Association, the American Academy of Orthopedic Surgeons, and the American Osteopathic Association. The general objection is that Section 10320 sets up an unelected IPAB whose members will be responsible to their own patrons, the politicians who appointed them, and that the first casualty will be quality of care.

The rub is that there is a cadre of political activists who, while opposing Section 10320, don't necessarily want to repeal only that section if it means that the rest of the bill would survive. For this cadre it's an all-or-nothing game. Improving the bill is for this group a kiss of near-death since so doing might lessen the drive for total repeal.

The drive for repeal of the 1099 section, however, which would also improve the bill, appears headed for success. The ACA would require all business entities to file 1099 tax forms whenever they buy $600 or more of either goods or services. In the past 1099s were required for purchase of services, e.g., from sole proprietors. This provision applied to services only -- its expansion to goods, e.g., a laptop, was expected to bring in about $20 billion to government. The objections of local doctors' offices, their associations and unions, was joined into heartily by business interests of all kinds. So it looks like Congress agrees and anticipates the signature of President Obama on a repeal bill. Hence, we have a definite crack in the ice. A part of the ACA can be repealed or changed after all. Section 10320 should be next.

Disappointingly, it appears that Budget Chair Paul Ryan has been caught in a statement that would deceive the American voter about Medicare. Ryan announced in the WSJ a plan to provide what he sneakily called "premium support" for Medicare. The idea of "premium support" is to award Medicare recipients a pre-decided amount of money and then let the recipients find and purchase their own health care on the private market. The fiscal motivation is to reduce Medicare inflation. So far, so good. But Ryan couldn't resist saying that "Medicare beneficiaries will be enrolled in the same kind (bold added) of health care program that members of Congress enjoy." False, false, false! The program Members of Congress get pays them a fixed percentage of costs, hence, the amount rises if the costs rise. By contrast, the program for Medicare recipients would award only fixed costs that would not automatically go up if Medicare costs were to rise. The expectation is that Medicare costs would go up and leave the fixed costs mired in the dirt.

Ryan's explanation was either a big mistake or an attempt at deception. In any case, his explanation is wrong and will deservedly cost him credibility.

GETTING AROUND THE CORPORATE PRACTICE ACT

2011-03-08T10:30:00.000-08:00

Hospitals may hire physicians to manage specialized departments. These physicians aren't hired to practice medicine since in California so doing violates the state's prohibition against the corporate practice of medicine. The purpose of this prohibition is to prevent hospitals from controlling doctors and to prevent doctors from being under the thumb of corporate hospital interests. An example would be hospitals that push doctors to discharge patients too soon to increase utilization and enhance the bottom line. Such complaints are taken seriously and may lead to investigation. Some hospitals have come under the gun for allowing unindicated and unnecessary surgeries to be done.

On the other hand, it is not a violation of the corporate practice act to hire a doctor to manage a group of specialists. The stated purpose is to make sure that staffing is covered around the clock, to make sure that the most highly qualified doctors are hired, and to optimize patient care by retaining professional management. That's the theory.

Here's what we've heard as a variation on the theme.

Hospital X hires a physician manager. His job is to hire as many specialists as he judges necessary to cover the hospital's promise of service to the community. His allocation or budget for this administrative job is, let's say, $100,000 per month or a total of $1,200,000 per year. This amount is not his take-home pay. He in turn is supposed to form a specialty group and hire the doctors who'll actually provide service. Let's say the administrator hires a group of doctors whose combined pay is $50,000 per month or $600,000 per year. The administrator is then entitled to the other $600,000 for himself.

Let's say the administrator-doctor judges that he'll need 6 doctors. He knows that he's allotting a total of $600,000 to pay for their services -- so that's $100,000 for each of the hired doctors. Now the trick is to hire them at less than the allotted $600,000. If the administrtor-doctor can hire them at $75,000 each, saving $25,000 from each one of them, he can pay himself $150,000 more than the $600,000 originally envisioned. He now gets $750,000. The actual treating doctors get $450,000. They are not hospital employees. They are employees of the owner or founder of the group. There is no violation of the corporate practice act.

There's nothing illegal in this arrangement. Since the hired doctors are unlikely to be skilled in collective or even solo bargaining through unions, they're easy prey. When they find out that they can unionize, they'll be afraid to make the move. Fear is key. Some doctors retained for this administrative role understand better than others how to hire doctors who'll be less likely to complain about hours, working conditions, or pay -- the tricks of the trade include understanding ethnic, gender, and family differences. In some cases the key to getting hired may be how little one will accept in payment or how much overtime one may be willing to contribute. Credentialing becomes secondary.

"Medical Red-lining, Economic Credentials for Physicians," is the title of my op-ed from the San Francisco Examiner, 12 January 1995. It tells one way that corporate entities select doctors -- by determining which ones spend the least on diagnostic testing and therapeutic options for their HMO patients. This piece was reprinted in The Congressional Record, Vol. 144, # 118, 9/9/98. The trouble is that hospitals have learned how to act like HMOs.

The Los Angeles Times in its edition of 5 March 2011 published this story by Sam Allen: "State controller finds more big public employee salaries, including $875,000 for hospital chief." Nancy Farber, CEO of the Washington Township Healthcare District with its major hospital in Fremont, is reported to have been paid total wages in 2009 of $873,598.

The next step should be to review departmental expenses to learn how each department's budget was distributed. This effort would require prying into what some recipients might consider private business. It could be discomforting. It should be done.

"As They Consolidate, Hospitals Get Pricier," by Julie Appleby, produced by Kaiser Health News in collaboration with The Washington Post, 9/26/10, tells us in the title what we need to know. Are some administrations paying out so much to executives that there's not enough left for actual medical and surgical care? On the other hand, if "pricier" is connected to "better," there would be less room for complaint.

"State Report: Even fewer bypass surgery deaths," by Tom Abate, San Francisco Chronicle, 4/08/09, points out that the average mortality rate for this surgery in California was 2.65 percent but that Washington Hospital in Fremont reported a mortality rate of 5.83 percent for one of its surgeons. The trouble is that statistics don't take into account individual variation on a case-by-case basis. The rub comes when one asks the inevitable question, namely, was quality of care sacrificed on a monetary altar of greed so that executive compensation could be raised?

San Francisco Chronicle, 3/09/11, states that one of the "biggest winners" in health care, "No. 1 on the list is Nancy Farber, the CEO if Washington Township Health Care District in Fremont, who took home $873,598 last year." Washingon Hospital has 339 beds. This piece then states that "by comparison, Mark Laret, who heads UCSF's 690-bed hospital system, was paid $748,616."

People need to know how the health care dollar is distributed. Are hospital CEOs more valuable to hospitals than their physicians, surgeons, and nurses? One may reasonably ask if there's any relationship of administrative compensation to contracted out services that skedaddle around the corporate practice act.

Wisconsin, Ohio and California

2011-02-21T12:14:00.000-08:00

Governor Walker of Wisconsin is fighting hard to be recalled. His wish to follow former Gov. Gray Davis of California into political exile deserves to be honored.

Govenor Kasich of Ohio also evidently wants to be recalled although he doesn't know it yet. He should be obliged. Both Governors Walker and Kasich, once they recognized urgent fiscal situations, immediately sought to destroy collective bargaining.

The citizens of Wisconsin and Ohio deserve better than they're getting and should increase efforts to recall their respective governors. Since one of the issues is pensions, we need to ask this question: were either Gov. Walker or Gov. Kasich to retire today, what would their pensions be? Once we know that, we can decide whether we think their pensions need trimming.

While we're at it, we should ask if it's correct that in Ohio corporations have been released from over $100,000,000 in taxes. If that assessment is correct, then that situation needs to be addressed not only in Ohio and Wisconsin but in every other state where earmarks have been a staple of business life.

These issues impinge upon healthcare delivery. In California when Arnold Schwarzenegger followed Davis into office, his first step was to set aside as much of collective bargaining as he could and to ruin workers' compensation for injured workers. Schwarzenegger enabled insurance companies to use doctors without California licenses to overrule and deny care prescribed to injured workers by duly licensed California doctors. The assertion was that this step would save money for the state. In reality, businesses saved some money but the huge beneficiaries were the insurance companies who used and continue to use one slick trick after another to deny care to injured workers.

Injured workers in California have wrongfully been denied care that was won in collective bargaining. Thanks to collective bargaining, however, California's injured workers are not without power and the ability to fight back. Walker of Wisconsin and Kasich of Ohio want to go further. They want to strip the workers, injured and uninjured alike, of any power to fight back. Such a move would be a boon to insurance companies that will be enabled to deny care as though there were no tomorrow. For some injured workers, tomorrow vanished yesterday.

It is fair game for the governors to seek reforms in pensions and to advocate for cost-sharing in healthcare. The unions have already agreed to that. But that's not enough for Gov. Walker or Gov. Kasich. Their purpose is not to establish equity but to ruin the unions and to destroy collective bargaining. That is why they deserve to be recalled and, if possible, sent into retirement without pensions.

AFSCME, AFL-CIO, and the Union of American Physicians and Dentists have repeatedly picked up the gauntlet that Governor Schwarzenegger threw into the faces of honorably employed public servants. In 2006, AFSCME, AFL-CIO, passed a resolution stating that Utilization Review doctors should be licensed in the states where they practice. But even Gov. Schwarzenegger wasn't autocratic enough to try to rescind the right to bargain collectively. Walker and Kasich display an arrogance that even Terminator Arnie couldn't quite muster. The solution in California was for Schwarzenegger to run out his string and then to vote down his retainers. The solution in Wisconsin and Ohio is for citizens to agree that pension and healthcare adjustments are indicated. They should then recall Governors Walker and Kasich. There is a moral to the story: protection of our rights requires eternal vigilance.

First Step: Repeal Section 10320 of the Affordable Care Act

2011-01-18T13:05:00.000-08:00

In response to Politico writer Jennifer Haberkorn's article, "Tom Daschle, Bill Frist join forces on health care reform," here is my comment as to why Section 10320 of the ACA should be repealed.

2011-01-04T13:10:00.000-08:00

PEER REVIEW: ON A COLLISION COURSE WITH FINANCE, USED TO SILENCE PHYSICIANS, DOCTOR RAO STANDS FIRM AGAINST THE ODDS.

by Robert L. Weinmann, MD

In the Superior Court of California, County of Alameda, a
peer review drama is unfolding. Petitioner R.V. Rao has taken on Washington Township Health Care District, Respondent, re its judicial review committee.

In a nutshell, a conflict is now in about its 8th year. The conflict arose after Dr. Rao questioned administrative proceedings in the hospital and indicated that conflicts of interest may exist between optimal medical care and profitability. Doctor Rao reported his findings to appropriate official agencies. The agencies found fault with the hospital and reportedly told the hospital that Rao had complained. Rao's confidential cover as a whistleblower was blown. This scenario set the stage for on-going conflict. At a judicial review hearing called "JRC1" or "Rao I" Doctor Rao was involuntarily terminated from the Washington Hospital medical staff. Eventually, there was a second peer review proceeding called "JRC2" or "Rao II."

The court document, # HG10540985, refers to the hearing as "JRC2" and "Rao II." Respondent Washington Hospital wanted "to strike portions of the Petition pertaining to the second peer review proceeding." The court document states that "the motion is DENIED."

The document stated that "the motion of Respondent Washington Township Health Care District to strike portions of the Petition of Petitioner R.V. Rao for Writ of Mandamus is DENIED in part and GRANTED in part."

The petition then indicates that a "second judicial review committee ... completed proceedings into charges made June 4, 2007 on June 5, 2010." The court document refers to "the first judicial review committee ... to terminate Petitioner's medical staff membership."

In reference to the 2nd hearing, Washington Hospital sought to "strike portions of the Petition pertaining to the second peer review proceeding." This motion was denied. What is the material that the hospital wanted to strike?

We know that Dr. Rao appeared as a discussant in the movie, Life For Sale, available on DVD and on-line as www.lifeforsalemovie.com.

I am personally on record about this movie, having stated that it "explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view."

Rao appears in the movie as a discussant about peer review. Although he does not mention any hospital by name or present himself as any hospital's spokesperson, his comments have been taken as critical of Washington Hospital. The movie has had public viewing including 13 minutes of the movie shown at a Continuing Medical Education seminar on Sham Peer Review sponsored by the Union of American Physicians and Dentists and the University of California at Irvine.

In general the movie suggests that conflicts of interest may exist between optimal medical care and optimal financial gain. Some critics feel that Rao's participation in this movie solidified opposition against him.

In the meantime, Washington Hospital has made spectacular financial progress despite miserable economic times. The San Jose Mercury News' report by Matthew Artz, 12/27/10, states that the hospital's CEO, Nancy Farber, would get a salary increase from $614,000 per year to $632,000 with total compensation set at about $857,000 ($245,502 in performance bonuses). Washington Township health care district board member Bernard Stewart was quoted as saying "in my opinion it is hard to describe our CEO's performance this year as anything other than outstanding."

Meanwhile, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Anthony Colantonio, respondent, versus Mercy Medical Center, we have language stating that "the defendants were not entitled to immunity under 42 USC 11112 (a)..."

Doctor Colantonio was asked why his hospital was taking him on. Colantonio replied "I spent seven months writing letters about patient care issues that needed to be corrected. This was after two years of complaining verbally. I could no longer look the other way while patients were dying. They found my conduct 'disruptive.' "

Peer Review privacy, for which I personally have testified in the California legislature, is now under the gun and, regrettably, perhaps with good reason if it can be shown that the process is being subverted. The doctors in the Colantonio case are now subject to civil lawsuits since providing false testimony is not protected under the Health Care Quality Improvement Act.

At the same time, doctors who take on hospital administrations or who are felt to be too vigorous in their protests run the risk of being called "disruptive," which in turn can lead to hospital discipline and adverse reports to state medical boards (these reports are known as 805s in California).

In Rao's case, the court is being asked to undertake judicial review in order to overturn the termination order from the Washington Township Health Care District Board of Directors.

My opinion was stated at one of the hearings where I testified at Washington Hospital on behalf of Dr. Rao. I pointed out that had the doctors in Redding spoken out and questioned the administration as well as their own colleagues, the catastophic conduct reported to have occurred there -- including unnecessary operations -- would have been nipped in the bud.

Doctor Rao acted honorably. He should be exonerated and restored to full privileges at Washington Hospital.

OBAMACARE NEEDS INSTANT REVISION by Robert L. Weinmann, MD

2010-11-04T11:15:00.000-07:00

"I WILL ENSURE THAT NO GOVERNMENT BUREAUCRAT GETS BETWEEN YOU AND THE CARE YOU NEED"

Inadvertently, some would say, Obamacare contains provisions that effectively ration care. With all due intent, others assert, it's no accident that the present version of Obamacare contains language creating pre-authorization restrictions. Here's how it works.

In the autumn of 2009 President Obama said "I will ensure that no government bureaucrat gets between you and the care you need." At the same time, however, Congress was considering HR 3200 which contained a provision to establish "a private-public advisory committee" to "recommend" treatment options. The public reaction was tepid, but House Minority Leader John Boehner (R-Ohio) and Speaker Nancy Pelosi (D-CA) noticed problems. The difference was that Boehner wanted to expose these discrepancies but didn't at the time have enough information to do so. The bill was only in its formative stages even though it was being rushed through the legislative process (see The Hill's Blog Briefing Room, story by Michael O'Brien with comment by the undersigned, 3/04/10). Pelosi didn't worry about internal problems in the bill --her agenda and that of President Obama was to get the bill passed no matter what flaws might be in it.

HR 3200 then gave way to HR 3962 which included a provision to set up a Health Benefits Advisory Committee which was further described as "a private-public advisory committee which will be a panel of medical and other experts to be known as the the Health Benefits Advisory Committee to recommend covered benefits." In other words, Medicare patients were on the verge of being "recommended" out of the care they needed. Patients generally were on the verge of being "protected" out of the care they might need by a new bureacracy for health care regulation that was actually contained in legislation that was being hurried past Congress.

HR 3962 would include an Independent Medicare Advisory Board (IMAB) that would be empowered to regulate care before-the-fact by utilizing techniques known as "pre-authorization" and "utilization review." At this point, chills should have radiated down President Obama's back. His allies in Congress had undercut his promise. Did he understand that? Nancy Pelosi should have been alerted that the IMAB would be a bureaucratic adjustment that would toss Presidents Obama's promise onto the scrapheap of political rhetoric.

Still there was no hue and cry about specifics in the bill which went unread by many Congressional representatives who didn't notice that key words such as "provider" or "other medical experts" were often used to hide the fact that non-doctors would be making medical decisions pertaining to access to care. Red flags were flying but a divided Congress wasn't arguing technical issues that should have been openly discussed. After all, it is not too difficult for most of us to recognize when we're being "protected" out of our rights and property.

That's when the next metamorphosis occurred, namely, changing the name of the IMAB to the Independent Payment Advisory Board (IPAB). Now the cat was out of the bag -- the bill, as critics had opined all along, wasn't about medical care after all. It was about cost-containment. President Obama's promise was now consigned to the proverbial scrapheap -- without a word in protest from the President.

The IPAB language, now inserted into the Affordable Health Choices Act of 2009, was fleshed out by Section 10320 of the legislation. The IPAB removes Congress from the ability to make decisions. In the opinion of this writer, it is a danger to patients, doctors, and hospitals. Organizations purportedly interested in affordable healthcare should seek repeal of Section 10320 -- repeal of this section does not spell the demise of the entire bill. Repeal of Section 10320 should be a priority of the hospital associations, the medical associations, and the unions -- in fact, everybody. It is just as harmful to a corporate CEO as it is to the lowest paid worker -- that is why the unions should also seek repeal of Sec. 10320.

The IPAB is a sneaky attempt to restore rationing by enabling denials of care in advance. It is a utilization review mechanism designed to reduce costs by reducing access to care. It should be repealed.

Utilization Review in Workers Comp by Non-licensed Doctors

2010-07-27T09:46:00.000-07:00

Utilization Review by doctors without California licenses continues to bedevil California physicians and rob injured workers of indicated care.

Here's what happened recently to an orthopedist in San Jose and his patient. The orthopedist found that his patient had evidence of an osteoid osteoma or similar lesion. The orthopedist stated in his report that "there is clear-cut pathology ... with a dye leak from the mid-carpal joint to the radiocarpal joint through the scapholunate and triquetro-hamate intervals."

The treating orthopedic surgeon sought authorization for left wrist arthroscopy and excision of the lesion in the distal radius. The insurance company handed over this request for authorization to a doctor without a California license. The proposed medical treatment was then deemed "not certified" and denied.

In a formal affirmation of the denied authorization, the Utilization Review doctor asserted he'd had "peer-to-peer discussion" with the treating orthopedist. This description stretches the truth. The out-of-state doctor may call himself a peer but, truth is, the California-licensed orthopedist completed a 12 hour course in pain management as required by the Medical Board of California whereas the out-of-state doctors isn't required to meet this requirement. He is exempt. But he is useful to insurance companies that want surgery delayed or denied.

When the treating orthopedist reviewed the non-California licensed doctor's negative report, he found that the non-California licensed doctor had not reviewed the X-rays. Nonetheless, the non-California licensed doctor turned a patient away from needed and indicated arthroscopy.

The treating orthopedist, duly licensed to practice medicine in California, stated in his own rebuttal, that "it is reasonable to proceed with a surgical arthroscopy " and, "prior to a final decision regarding surgery, to proceed with a limited bone scan to evaluate the bone lesion seen on CT."

This effort was initially thwarted by the Schwarzenegger administration's application of law. A non-California licensed doctor was allowed to overrule a licensed California doctor. In this case, harm was done because necessary and needed surgical intervention was delayed and initially denied. The treating doctor had to take on an insurance company and their non-California licensed doctor. Readers will be glad to know the arthroscopy was eventually done thanks to the fighting spirit of the treating doctor. The lesion was excised and the patient is a happy camper (no thanks to the Schwarzenegger administration and its distortion of Utilization Review).

The fault lies with the Office of Administrative Law and the Schwarzenegger administration. Both have cow-towed to insurance company interests. Both have made it possible for carpetbaggers to practice medicine in California. AB 933 (Fong) would put a stop to this nonsense. AB 933 (Fong) will require that doctors who do Utilization Review for injured workers in California be licensed in California.

The latest amendments to AB 933 (Fong) include provisions to govern how Medical Provider Networks function so that the perception that MPNs drop physicians from their rosters on an arbitrary basis can be corrected.

AB 933 (Fong) is up for hearing in Senate Appropriations on Monday, August 2nd. E-mail your concerns to committee staff, bob.franzoia@sen.ca.gov, and copy to assemblymember.fong@asm.ca.gov

2009-10-28T10:40:00.000-07:00

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.

2009-08-31T20:43:00.000-07:00

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

2009-07-29T19:43:00.000-07:00

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

2009-06-17T11:13:00.000-07:00

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.

2009-06-11T12:21:00.000-07:00

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

2009-05-22T11:06:00.000-07:00

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

###

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

2009-05-07T11:23:00.000-07:00

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

2009-04-18T22:44:00.000-07:00

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.

2009-03-29T17:09:00.001-07:00

2009-03-23T17:59:00.000-07:00

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

2009-03-17T13:22:00.000-07:00

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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