Thursday, November 4, 2010



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.

Tuesday, July 27, 2010

Utilization Review in Workers Comp by Non-licensed Doctors

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,, and copy to