SENATE BILL 626 (BEALL) RESTORES EQUITY AND BALANCE TO WORKERS' COMP, THREATENS SB 863's STRANGLE HOLD ON WORKERS COMP

"HOW TO PRACTICE MEDICINE WITHOUT A LICENSE" WAS THE TITLE OF MY OP-ED IN THE SAN FRANCISCO CHRONICLE, 8/29/08.  The inequities described in that piece have been operative ever since -- but now Senator Beall's legislation, SB 626, will try to restore balance and equity. Comments from the Legislative Counsel's Digest, 2/22/13 include the following (italics):

"Existing law requires an employer to establish a medical treatment utilization review process and ... prohibits any person other than a licensed physician from modifying, delaying, or denying requests for authorization of medical treatment for reasons of medical necessity ... Existing law also provides for an independent medical review process to resolve disputes over a utilization review decision for injuries occurring on or after January 1, 2013,  and for any decision that is communicated ... after July 1, 2013 ...  This bill would revise these provisions to require that medical treatment reviews be conducted by physicians or medcal professionals ... who hold the same California license as the requesting physician (underlining added) ... Existing law prohibits a workers' compensation administrative law judge, the appeals board, or any higher court from making a determination of medical necessity contrary to the determinationn of the independent medical review organization ... This bill would delete that provision (underlining added)."

The current inequity is that under current law pursuant to SB 863 an Independent Medical Review (IMR) process is empowered to resolve disputes over utilization review for injuries occurring on or after 1 January 2013 and for decisions communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury. In this way injured workers are deprived of diagnostic studies or treatment recommended by their Primary Treating Physicians (PTPs). The dispute then gets settled by the IMR process. Unfortunately, under current law,  neither the UR doctors nor their IMR counterparts need be licensed by the Medical Board of California. No matter how harmful or egregiously wrong their decisions are they are not subject to the same discipline as the PTPs all of whom are licensed in the states in which they practice.

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO,  passed a resolution at its International Convention in Chicago in 2006. The resolution stated 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."

SB 626 would mandate that medical treatment reviews and independent medical reviews be done by physicians or medical professionals "who hold  the same California license as the requesting physician."

Incredibly, under current law, a cadre of secret doctors has been empowered. The names of the IMR doctors are "protected" by law, that means, concealed from view. Our previous blogs on SB 863 discuss this ablation of due process in more detail.

SB 626 would delete the requirement that that IMR doctors' names be kept secret.

California AFSCME's stand in favor of SB 863 was inadvertently a stand against its own organization's International Resolution. The political pressures to do so at the time were intense (Governor Brown wanted it -- see previous blogs re why).  We look forward to California's AFSCME coming on board SB 626.

Not only that. SB 863 actually prohibits due process and fair play because it prohibits workers' comp administrative law judges, the WCAB,  or even higher courts from making determinations of medical necessity that would set aside an IMR ruling against an injured worker. SB 626 would delete this provision.

More to follow. Stay tuned. But first, get on board -- readers may contribute their own comments on-line directly to this blog.

Here is a comment from CRIS FORSYTH, CHIEF OF STAFF, SENATOR JIM BEALL, DISTRICT 15: "Relative to your question regarding comments ... advocating for the bill.  I cannot fathom more eloquent prose than that which you have already professed."

Well, Cris, we'll do our best: SB 626 is courageous legislation that would restore honor to a process that has become the domain of insurance companies and their allies. It's also an American political anomaly that some parts of big labor identify more with business interests than with workers and would let injured workers be deprived of the medical and surgical treatment they need and heartfully believed they earned

SB 863 ALERT: WATCH FOR ASSAULT ON NON-CALIFORNIA LICENSED UTILIZATION REVIEW AND SO-CALLED INDEPENDENT MEDICAL REVIEWERS : Stay tuned to this blog. We expect to report incrementally from Sacramento as we learn what's happening in our Capitol.

Previous blogs discuss SB 863 which Governor Brown signed into law on the last possible day of the 2012 legislative session. Massive efforts by injured workers' interests to  alter this bill are expected. 

OBAMA VERSUS OBAMACARE

"Modest reforms," that's what he said.

The president's state of the union address included this vapid and vague comment:  "Those of us who care deeply about programs like Medicare must embrace the need for modest reforms." Best we can tell, President Obama intends to skewer the wealthier beneficiaries of Medicare. The idea is to apply these "modest reforms" to hit wealthier Medicare beneficiaries by raising their premiums, delaying onset of Medicare eligibility by two years until age 67, and using the IPAB (Independent Payment Advisory Board) to ration or limit access to available services. In other words, kindly move over and die sooner.

While raising the age for full Medicare benefits may make sense, and while charging more to those whose incomes is above a certain level may also make sense, it smacks of hypocrisy for Congress and the President to allow an appointed IPAB bureaucracy to deny services to the public while specifically exempting themselves. In case it's not widely known, know this: the president and Congress exempted themselves from the Affordable Care Act (ACA, known as Obamacare). The president and Congress have their own (better) health care plan (no IPAB).

The ACA as currently written allows insurance companies to increase premiums as a way to defray the cost of covering the millions of added recipients who currently don't have insurance. The already-insured will pay more in premiums than they're currently paying to cover the millions of currently uninsured persons who will be covered by the ACA. At the same time the IPAB will be enabled to disqualify diagnostic and treatment protocols of their own choosing.

Here's what else Obama said: "The biggest driver of our long-term debt is the rising cost of health care for an aging population." I herewith forgive any elderly person for not volunteering immediately for ID (instant demise).  It's not a mystery as to why Congress exempted itself and why Nancy Pelosi asked to have the bill passed just to find out what was in it.

So let's repeat Obama's entire statement: "And those of us who care deeply about programs like Medicare must embrace the need for modest reforms -- otherwise, our retirement funds will crowd out the investments we need for our children, and jeopardize the promise of a secure retirement for future generations."

What wasn't said is that one way to start would be to include the president, the executive branch of government, and Congress in Obamacare as opposed to awarding them a better and more extensive program than the rest of us. Readers may like to know that Congress allows itself to use military hospitals on a "prn" or "pro re nata" basis (translation: "as needed"). Ordinary citizens don't have this privilege.

President Obama even had the temerity to say that "already, the Affordable Care Act is helping to slow the growth of health care costs." In fact, what we're seeing in the real world is increasing costs to cover enhanced executive compensation, not a penny, not a farthing, for increased access to specialty care for the elderly or for anyone else.  What doctors are seeing in the real world is increasing numbers of people ostensibly covered by the ACA, while, simultaneously, the IPAB mechanism is prepared to strip away currently available benefits and to put on hold future advances in available medical care. This two-pronged program takes away with one hand what it makes available with the other hand -- it's a fiscal device to make a flawed program appear more successful than it is.  We already know that businesses are switching as much of their work forces as possible to temporary hires so they'll not be obliged to provide health care.

Basically, as to health care and the ACA, president Obama's State-of-the-Union address was  non-responsive and disappointing. 

OBAMACARE IN THE STATE OF THE UNION ; WRONGFUL DENIALS OF CARE IN CALIFORNIA

WILL PRESIDENT OBAMA'S STATE OF THE UNION MESSAGE CONTAIN MEANINGFUL COMMENT RE THE AFFORDABLE CARE ACT?

"I will ensure that no government bureaucrat gets between you and the care you need." These words tumbled effortlessly from a confident President Obama in the autumn of 2009 but were immediately set aside in favor of more bureaucracy than healthcare has ever known. Healthcare pundits know that Obamacare as currently written allows for regulation of healthcare by non-physicians through a mechanism known as the Independent Payment Advisory Board (IPAB) whose concern is fiscal health as opposed to the health of patients. The Affordable Care Act (ACA)  also has a built-in mechanism starting in 2014 that will require $1.5 trillion in costs for families and businesses according to Stephen Frank, publisher & editor, California Political News and Views, 9/21/11. This dire prediction for the ACA worries fiscal conservatives. If the estimate is accurate it should worry everyone. We'll wait for President Obama to set our concerns aside before we comment further on Obamacare's managerial accounting.

Remember: the IPAB was once known as the IMAB or Independent Medicare Advisory Board. When the nation's Medicare patients realized they were being targeted for denial of care and supervision of allowable care as a form of  rationing, they raised a hue and cry. The IMAB was brought down. When the storm subsided, it was resurrected as the IPAB.

In the second debate with Governor Romney the president was asked about the make-up of the IPAB. He said it would be "doctors et cetera." There is nothing in the language creating the ACA that requires even one physician to be appointed to the IPAB. That's because, although expanded medical care was the ostensible reason for the ACA,  fiscal control has always trumped medical excellence in its design. The provision of the latest and best in medical care is spoken about but the IPAB is there to restrict what's actually offered. Congress itself wants none of it and opted out of the ACA.  Nonetheless, it's likely that at least one physician who is cooperative enough with the administration will be appointed to the IPAB. During the debate when the president said "doctors et cetera" he gave a false assurance that Governor Romney didn't recognize as such and let pass. We hope the the president will do better in the state of the union speech.

HOW ABOUT CALIFORNIA?

WILL CALIFORNIA  STOP DENIALS OF CARE BY IMR DOCTORS WHOSE NAMES ARE KEPT SECRET OR WHO ARE NOT  LICENSED TO PRACTICE IN CALIFORNIA?  

WILL INSURANCE COMPANIES IN CALIFORNIA BE ALLOWED TO CONTINUE TO RETAIN UR PHYSICIANS WITHOUT CALIFORNIA LICENSES?

We await legislation to abolish secret review of utilization review (UR) denials by so-called Independent Medical Review (IMR) physicians whose names will be concealed by law as mandated by SB 863. We await restoration of the WCAB's ability  to overrule wrong and harmful decisions that deny medical care to injured workers. We also still await law that requires physicians who do Utilization Review and Independent Medical Review to be licensed in California. As matters stand now, doctors not licensed in California can do UR and IMR reviews and deny care to injured workers in California. As the law stands now, the non-California-licensed physician cannot be disciplined in California even for the stupidest and most harmful denials of care since these doctors aren't subject to the medical board of this state. The doctor may be licensed in other states but those other states don't have jurisdiction in California. The time to correct this travesty is overdue. Labor unions and legislators should  revisit SB 863.

As matters stand now, a company named Maximus from Maryland is seeking doctors to do Medical Necessity Reviews for $150 to $200 per review. We do not have reliable information at this time as to what percentage of cases reviewed by Maximus end up in denial of care for injured workers. We don't know how much Maximus will actually pay for each review or how the money will be divided up -- we do know that the doctors are being offered a small enough percentage so that the deal remains attractive in terms of corporate compensation. We presume that the labor unions around the state would be interested in the details. Do we guess wrong? Tell us where we may've gone astray, please!

We will be adding to these comments on Obamacare, SB 863 in California, and wrongful denials of care  over the next few days. Stay tuned. These issues are hot potatoes.