SB 863: CREDITS AND KUDOS

SB 863 provided one of the most drama-laden lobbying and advocacy campaigns in years and ended in a personal victory for Governor Edmund G. Brown, Jr. Because of intense work chiefly by the California Society of Industrial Medicine and Surgery (CSIMS), the bill was nearly defeated. On the Thursday before the end-of-session Friday, the Senate Democratic caucus opted for putting the vote off until next year's legislative session. That's when Governor Brown, backed into a corner, showed his teeth and claws. He got out of his comfortable gubernatorial chair and visited the senators in their own offices. He personally worked the bill. He didn't leave it to aides. The technique worked. We don't know about  all the promises he issued, but we do know that his persuasion was powerful and successful. Various organizations were allowed to visit the Governor's office and discuss the bill. A report from The Union of American Physicians and Dentists said that the Governor's spokespersons refuted all points presented in opposition to the bill. At showdown time on Friday, the American Federation of State, County and Municipal Employees (AFSCME) supported the bill despite a provision to allow "carve outs" or "alternative dispute resolution" techniques that could have adverse impact on state and county employees and despite the fact that the bill continues a practice that AFSCME itself voted against at its 37th International Convention (see last two paragraphs below).

The handwriting was on the wall when the California Medical Association, having helped get some small but positive amendments, joined in support of the bill. The California Orthopedic Association, previously opposed to the bill, went neutral at the last minute. Major support all along came from the California Labor Federation which teamed up with big business organizations such as Grimmway Farms to write the bill. Eventually, the California Chamber of Commerce announced support which allowed reluctant Republicans to vote for it. With Governor Brown's supreme effort, this coalition prevailed. It was a superb job of rescue-lobbying, pulling a burnt bill outa' the fire and getting it signed into law. The proponents deserve credit for doing their job well.

Strong opposition came from CSIMS which provided repeated technical analyses of the bill, not that rhyme or reason had all that much to do with the final vote. Opposition came from The International Longshore & Warehouse Union, Southern California District Council, Voters Injured at Work, California Teamsters Public Affairs Council, SEIU Local 121, LatinoComp, The California Neurology Society, California Applicants Attorneys Association, California Hospital Association, and the United Firefighters of Los Angeles. Some of the opponents provided testimony at hearings, others wrote letters, most did what they felt they could.  In the end, their combined opposition was overwhelmed when on the last day the Governor personally intervened. The opponent group still earns credit for their stalwart and principled fight on behalf of injured workers.

ISSUES NOT RESOLVED THAT MAY REQUIRE CLEAN-UP LEGISLATION OR RULINGS FROM THE OFFICE OF ADMINISTRATIVE LAW

SB 863 replaces the current Utilization Review system with an Independent Medical Review (IMR) system where only the Medical Director will be required to be licensed in California. IMR companies, just as did the UR companies, will be free to retain non-California licensed doctors who will not be responsible to the Medical Board of California (MBC) or even to their own state medical boards since the latter don't have jurisdiction in California. This lapse wasn't an oversight. It is one of the ploys desired by big business and perhaps unwittingly supported by the California Labor Federation.

The ability to appeal even egregiously wrong decisions by Utilization Review doctors, now to be known as IMR doctors, has been severely curtailed. That a medical review decision may be wrong will not suffice to file an appeal in court. An example of what will be required will be accusations of fraud or bias. As long as there's no fraud or bias, an incorrect decision, even a harmful one, may stand. This oversight, if that is what it was, will discourage many potential treating doctors from becoming involved with difficult cases. The Brown administration, in its press release of 9/18/12, boasted that SB 863 would "reduce litigation, claims adjustment costs, and other frictional costs." In short, it'll reduce the ability of injured workers who've been denied access to treatment and other benefits from filing legal appeals. An Associated Press story from 9/19/12 bought the Governor's facile interpretation hook, line, and sinker.  The AP story stated that "the measure also aims to prevent lawsuits by establishing a binding independent review system to resolve medical disputes and shortens the timeline for approval of treatment from two years to three months." In a nutshell, this provision cuts the legs out from under injured workers who're denied access to the treatment recommended by their doctors.

Rules and Regulations are the next step. So is clean-up legislation and involvement of the OAL (Office of Administrative Law). The first step should be to require that all doctors who do IMR work in California be licensed in California. We should put a stop to carpet-bagger medical reviews. The IMR doctors should shoulder the same public policy responsibilities as the treating doctors they're judging. That means licensure in the state in which they work especially since the MBC has already stated that utilization review constitutes the practice of medicine. Two governors, Schwarzenegger and Brown, have ignored this advice. Nonetheless, this requirement was adopted in Chicago in 2006 by AFSCME at the 37th International Convention.  Here's the resolve:

"Therefore be it resolved that this convention declare that physicians working for utilization review companies reviewing the claims of injured workers be licensed in the states in which their decisions are used and where their decisions may influence the provision or denial of medical care to injured workers."

References

"Unions Fight to Protect Injured Workers," Resolution # 30, 37th International Convention, August 7 - 11, 2006, Chicago, submitted by Robert L. Weinmann, MD, President & Delegate, and by Stuart A. Bussey, MD, JD, Vice President & Delegate, UAPD/AFSCME, L 206

Note: Doctor Bussey is currently President of UAPD/AFSCME L 206

"How to Practice Medicine Without a License," by Robert L. Weinmann, San Franciso Chronicle, 8/29/08

"Doctors Who Do Utilization Review Should be Licensed in California," Robert L. Weinmann, MD, California Progress Report, 4/27/09