IN-STATE V. OUT-OF-STATE UTILIZATION AND INDEPENDENT MEDICAL REVIEW

OPEN LETTER TO ASSEMBLYMAN RICHARD PAN, MD
Chair, Assembly Committee on Health
15 January 2013

Dear Doctor Pan,

I am asking you to carry or sponsor legislation to repeal language within SB 863 that allows doctors who are not even licensed to practice medicine in California but who are allowed to do utilization reivew here to have their names kept secret. This secrecy is a way of making it even more difficult than it already is for injured workers to appeal wrongful denials of care.

SB 863 became effective as of 1 January 2013. An injured worker who is victimized by a stupid and harmful denial of care will not be allowed to file an appeal unless fraud, bias, or conflict of interest is suspected. The trouble is that since the legislation allows these doctors' names to be concealed, it will be truly challenging to file an appeal based on fraud, bias, or conflict of interest. The real problem, actually, is that the WCAB is no longer empowered to reverse wrongful decisions that harm injured workers. As a doctor, I don't think you would favor denials of treatment you prescribed to be done by doctors whose reports and names are not fully known to you. Am I wrong about that?

As matters stand now traditional Utilization Review does not need to be done by doctors who are licensed in California and are therefore responsible to our state medical board. Insurance companies can scour the country in search of malleable and cooperative doctors who will deny care on a myriad of technicalities no matter how harmful these denials of care are to injured workers. This injustice cannot happen in Texas. In Texas if California doctors want to do utilization review the doctors must be licensed in Texas. Since each state's medical board's jurisdiction is limited to its own state, many of the  doctors doing utilization review or independent medical review in California may not come under the medical board jurisdiction of any state at all for their UR or IMR work in California.  This largesse is estimated to cost California $10,000,000 annually --  an unwise choice for a state with financial woes.

Richard Fantozzi, MD,  as president of the California Medical Board in 2008, told Governor Schwarzenegger that this step "would provide increased consumer protection over decisions that do not have patients as its primary concern." At the request of the insurance companies and the Chambers of Commerce, Gov. Schwarzenegger vetoed a bill that would have corrected this abuse. Under similar pressure, Gov. Brown also vetoed legislation that would have corrected this abuse. SB 863 now makes the denial process even more vicious since the IMR doctors' names will be protected.

That's why treating physicians and their patients need you and like minded colleagues to amend SB 863 so that injured workers get fair and equitable access to treatment. What say you?

Yours truly,

Robert L. Weinmann, MD,  Editor, www.politicsofhealthcare.com

References

WorkCompcentral, 1/12/13, Comment by this writer to News Article by John P. Kamin, Legal Editor

Work Compcentral, 1/10/13, "Out-of-state v. In-state Utilization Review," Robert Weinmann, MD

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

OUT-OF-STATE VERSUS IN-STATE UTILIZATION REVIEW (UR)

UNDERSTANDING CALIFORNIA'S BIAS AGAINST INJURED WORKERS

David J. DePaolo says "I don't understand" in his article entitled "Out of State UR" dated January 4, 2013. I do understand. At the end of his article, DePaolo declares that "mandating that utilization review be conducted by physicians located in the state doesn't make any logical sense. I'm sure someone will try to enlighten me."  Who can resist such an invitation? Not me!

DePaolo states in his piece that "Dr. Robert L. Weinmann, of San Jose, Caif., an openly critical and long time advocate of requiring in-state residency for reviewing doctors in the California system argues that physicians who are not licensed in California will not be responsive to the needs of California residents." Well, DePaolo at least named the city correctly. The mistake is the assertion that I would require in-state residency. I have written in other articles and have testified in committee hearing that in-state residency need not be a requirement whereas in-state licensure should be. The Medical Board of California (MBC) agrees. In a letter dated 8/25/08, Richard Fanozzi, MD, board president, stated that the MBC supported a bill that "would require a physician who is conducting utilization review to be licensed in California" and that so doing "would provide increased consumer protection over decisions that do not have patients as its primary concern." This "increased  consumer protection" has been steadily and successfully opposed by the insurance industry.

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, took a strong stand on this issue at its International Convention in Chicago in 2006.  In a resolution entitled "Unions fight to protect injured workers" it was resolved 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." Right on!

The California AFSCME nonetheless voted in favor of SB 863 which would appear to suggest a schism with the international's resolution adopted in 2006. SB 863 continues the anti-injured worker policy that so far has been  rescinded three times by the California legislature only to have two Governors veto the efforts (Schwarzenegger twice, Brown once, both times supported by the Chambers of Commerce and the insurance industry generally).

Now here's the rub which, I believe, Attorney David DePaolo understands: as matters stand now in California, Utilization Review (UR) doctors need not be licensed in California. In fact, SB 863 carries this laissez faire even further. It turns out that SB 863 mandates Independent Medical Review (IMR) doctors' names to be protected, that is, kept secret. IMR doctors will also not need to be licensed in California. Their protection under the new law goes even further: these doctors won't be able to be challenged for blatant stupidity, being flat out wrong, or for decisions harmful to patients. The only grounds for challenging the IMR doctors will be bias, fraud, or conflict of interest (it may be difficult to challenge someone for bias if one doesn't know his name).

DePaolo summarizes my main argument as follows: "Because reviewing doctors out of state can't be controlled by California licensing authorities, insurance companies are then free to 'scour the country' for doctors who are willing to give favorable reviews to the insurers, Weinmann told WorkCompCentral."

DePaolo argues that insurance companies don't have to "scour the country" because "there are plenty of in-state physicians who would be willing to opine such ... it doesn't matter where the doctor is located." If that is so we have to ask why in previous years the insurance industry has argued that there aren't enough doctors in California willing to do UR and that is why they've had to go out of state to recruit doctors to do UR. In any case, my opinion is that in-state licensure should be required, not in-state residency. In the meantime, we thank DePalo for his vote of confidence in California's doctors.

DePaolo admits that in Texas the utilization review doctors and their companies must be licensed in the state although "the companies and providers may be located outside of the state." What now propels this issue to the forefront once again is that Illinois recently passed utilization review legislation and is working on rules and regulations to implement the process. De Paolo referred to David Manchetti of Cullen, Haskins, and Menchetti in Chicago who stated that utilization review doctors "need to be familiar with how medicine is practiced in Illinois ... which may be different from how it's practiced in Indiana or India." The phrase, "how it's practiced," is the key to everybody's pending disaster. The point is that there are ways to diagnose and treat broken bones that are correct and that are incorrect. Our concern should be to promote the former, deny the latter, and make little or no allowance for whether or not we're talking about Illinois, Indiana, India, or California. But that's not how it works in practice. The truth is that some insurers are widely believed to "scour the country" for compliant and subservient doctors just as some applicants' attorneys are believed to seek out equally compliant doctors for their clients. The process has become increasingly adversarial with the passage of SB 863.

So here's the summary: as matters stand now, UR and IMR doctors need not  be licensed in California and need not be responsible to the Medical Board of California.  These doctors are also not subject to discipline by the medical boards of their own states for review decisions in California because those boards don't have jurisdiction in California.

Our position is that UR and IMR doctors should be licensed in the states where their decisions are used. Residency is not the issue. The issue is public responsibility through the state medical board. The letter from the MBC and the resolution by the International Convention of AFSCME got it right.

As it stands now, SB 863 promotes misguided public policy with reference to Utilization Review (UR) and Independent Medical Review (IMR). These aspects of the bill deserve to be challenged, revised, or repealed.  In-state licensure for doctors who do UR and IMR should be mandatory.