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.