Users Guide to Affordable Care Act (Obamacare and IPAB)

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#76

Jun. 26, 2012 - 3:00 PM EST

The Independent Payment Advisory Board (IPAB) provision of the Affordable Care Act (ACA), Section 10320, deserves special scrutiny. This provision is the one that opens the door to rationing. It does so by appointing a board that does not report either to Congress or to the public. The IPAB is essentially a protected bureaucracy that will have the power to rule that selected diagnostic tests and treatments do not qualify for coverage under the ACA. It amounts to a covert rationing scheme that will hogtie the hands of treating physicians while also tying the hands of sick and injured patients. In California we see an equivalent in the use of so-called Utilization Review (UR) by doctors retained by insurance companies or their surrogates. These doctors do not speak to or examine the patients for whom they issue denials of care. The IPAB is the ACA equivalent of California's UR. The difference is that the UR people are doctors: the onerous requirement to be a  bona fide physician will not be imposed on the IPAB's unelected elite. Doctors should be worried. Patients should be worried. Insurance companies should be grateful. The increased number of patients the ACA creates will be offset somewhat by allowing denials of selected diagnostic tests and treatment. Congress shouldn't be worried. Congress was smart enough to exempt itself from the ACA from the very start. Watch for this item when SCOTUS rules on the ACA.

Robert L. Weinmann, MD, Editor, http://www.politicsofhealthcare.com/

The point is we're being distracted with dissertations on The Commerce Clause, issues of penalty versus taxation, even some psychoanalysis of Chief Justice Roberts, everything but how access to health care is being reconstructed and even restricted.  Here are some of the issues:

1) ACA makes no restriction on how high insurance premiums can be raised,

2) The IPAB provision derived from Section 10320 of the ACA allows entire treatment protocols to  be disqualified from coverage to maximize cost savings. Physicians and their patients will need to fight if they want to have anything significant to say about this process.

3) Doctors will be advised to see more patients faster to make up in volume for reduced remuneration to accommodate the  huge anticipated increases in eligible recipients. Physicians will have to learn to stand their ground when it comes to deciding length of hospital stays and time allotted to patients.

4) Patients who can afford it may use the coverage that's allowed under ACA and step outside the system for whatever ACA doesn't cover,

5) The IPAB will become the Controller of health care because it will make the rules and regulations that decide what qualifies as allowable care under the ACA.  The IPAB is a federalized version of California's Utilization Review in Workers' Compensation. Decision-making authority will be in the hands of unelected politicians appointed to the IPAB by other politicians. As the Romans used to say, Cave Canem (Beware of the Dog).

PRELIMINARY WARNING RE THE AFFORDABLE CARE ACT

AFFORDABLE HEALTHCARE OR OBAMACARE, officially known as the Affordable Care Act (ACA) of 2010, is about to be ruled on by SCOTUS.
One item that physicians with difficult, challenging, and unusual patients need to worry about is how the ruling will challenge their ability to take care of complicated patients who have proved refractory to standard therapies, or who have failed conventional treatment protocols. These physicians and their patients could well have their hands tied unless Section 10320 is modified or eliminated. Section 10320 allows for the appointment of an Independent Payment Advisory Board (IPAB), a tribunal of persons who need not necessarily be physicians. This panel will determine what the ACA will cover. The IPAB will not report to the people or to Congress. Ensconced in legislative fiat, it is poised to ration care by finding various procedures and protocols outside the mandate of coverage. In California where we watch the misuse of Utilization Review in Workers Compensation, we see how it works: treatments with lower success rates or that aren't buttressed by what authorities consider sufficient Evidence Based Medicine are disallowed no matter how carefully a specific treatment or study may be indicated on an indivdual basis and even though the patient may have failed everything else. Injured workers in California are deprived of indicated care by this method on a daily basis. So may it be with other patients covered by the ACA unless Section 10320 is altered or repealed. Watch for our follow-up on this issue.

AB 1687 (FONG) DESERVES PASSAGE INTO LAW

SB 923 (DELEON) DESERVES DEFEAT   

UTILIZATION REVIEW particularly by companies owned, controlled, or supported by insurance companies has been recognized for escalations of cost associated with wrongful denials of treatment. Here's how it works:
1) Josephine Sheetrock gets injured on the job and receives authorized initial treatment from a Primary Treating Physician (PTP) who in turn belongs to a Medical Provider Network (MPN) with which her employer and insurance company have a contract to provide care for injured workers (IWs);
2) Josephine Sheetrock's treatment does not resolve the clinical problem so the PTP seeks authorization for specialty consultation;
3) The PTP's request for authorization for specialty consultation and/or diagnostic tests is denied;
4) An authorization denial letter couched in the language of formal Utilization Review is sent to the PTP (it tells the doc to peddle his papers elsewhere);
5) The formal language is derived from the American Medical Association's Guides to the Evaluation of Permanent Impairment, from the American College of Occupational and  Environmental Medicine (ACOEM), and from the current Medical Treatment Utilization Schedule (MTUS), all usually correctly quoted while being wrongly applied;
6) The PTP can file an appeal. It the PTP files appeals too often or too successfully, the PTP risks being dropped from the MPN;
7) The consequence is that formal appeals are often perfunctory, not made at all, and are often unsuccessful (Josephine Sheetrock goes without treatment and is obliged to "go legal," i.e., to retain an attorney who specializes in workers compensation).

*** HMOs, other managed care organizations, and Knox-Keene Plans use similar mechanisms to delay or deny care. Money that should be allocated to patient care is retained by insurance companies, cooperative Utilization Review companies, and for enhanced executive compensation. 

*** AB 1687 (Fong) which applies to workers comp should be passed into law. It will help level the playing field by requiring full disclosure for denied care and by increasing access by injured workers  to lawyers who specialize in workers compensation;

*** SB 923 (Deleon) which also applies to workers comp should be defeated because it will deprive PTPs and their patients from access to specialty care. 

References

See our postings for 1 June 2012, 21 May 2012, and previous postings re workers compensation in http://www.politicsofhealthcare.com

Totalcapitol.com

California Progress Report

San Francisco Chronicle, 8/29/08 ("How to practice medicine without a license")

These articles include reviews of previous attempts to require California state licensure for UR doctors and are available on line, e.g., concerning AB 2968 (Lieber),  AB 933 (Fong), and AB 584 (Fong).

AB 1687 (Fong) cleared the California legislature 47 to 24. This bill takes aim at the so-called "authorization" process that insurance companies use to chew up, spit out, and ultimately deny care to injured workers.  Our previous blogs explain the bill in greater detail. Suffice to say at this point that proponents assert that injured workers who've been denied care by this arcane method which is allowed to use out-of-state doctors who are not licensed to practice medicine in California should be entitled to retain lawyers to review wrongful denials of care (see references, below). Opponents say that the bill carries an incentive to appeal even properly denied treatment requests. This author regards this assertion as an admssion that opponents already know that some denials are improper.

Supporters of the bill include the California Society of Industrial Medicine and Surgery (CSIMS), California Labor Federation (CLF), California Applicants' Attorneys Association (CAAA), and the Union of American Physicians and Dentists (UAPD). Pro-insurance interests that oppose the bill include the California Association of Joint Powers Authorities, the California Coalition on Workers' Compensation, and the Association of California Insurance Companies (ACIC).

Previously, this column has criticized AB 1687 on the grounds that it's not strong enough and will still allow non-California licensed doctors to do utilization review for workers injured in California and to overrule treatment decisions by fully licensed doctors who've also completed a state mandated pain management course (the non-licensed out-of-state doctors are exempt from this requirement). All the same, AB 1687 is a step in the right direction and could conceivably deliver a kick into the gnashing teeth of insurance companies whose mantra seems to be "profits before patients."

Other references by this author

"Wrongful utilization review perpetrated by inappropriate use of the ACOEM Guidelines," California Society of Industrial Medicine Bulletin, #4, Fall, 2006.

"How to practice medicine without a license," San Francisco Chronicle, 8/29/08.

"Utilization Review as a gift to insurance companies," Totalcapitol.com, 3/11/12.