IF THE WORK IS EQUAL, SHOULDN'T THE PAY BE EQUAL?

Senate Bills 491, 492, and 493 (Hernandez) would allow RNs with advanced training, optometrists, and pharmacists to practice medical care without the pesky obligation of going to medical school, doing internships, or submitting to residency programs under the supervision of faculty. Indeed, most surgery would remain out ot bounds (not all surgery, mind you!).  The nurses, optometrists, and pharmacists would be allowed to undertake primary care. The RNs with advanced training would be qualified as Nurse Practitioners.  Proponents argue that this largesse will reduce medical costs because lower-cost workers would take over some of the tasks done by physicians. Just where to draw the line is one of the problems. For instance, how does one "draw the line" when the differential diagnosis of, say, "numbness" is the chief complaint?  Should an evaluation  for multiple sclerosis be considered? The patient who is misdirected to the lower level diagnostician will find out the hard way.

The San Jose Mercury News, in an editorial on April 12, 2013, said "these bills ... would allow nurse practitioners to establish indpendent practices and deliver limited care without a doctor's oversight." It has also been argued that the lesser-level practitioner would be paid less. Herein lies a problem: if the NP, optometrist, or pharmacist is delivering medical care equal to or on a par with physicians, shouldn't the lesser level practitioners be paid at the same level?

The Affordable Care Act is supposed to expand access to care, not to water it down.

Recently, we learned that the Union of American Physicians and Dentists negotiated a raise for physicians by showing that a  group of nurses was being paid more than their physician counterparts. The opportunities in Hernandez's  legislation make it worthwhile for physicians, nurses, optometrists, and pharmacists to organize into collective bargaining units lest the Hernandez package be used to create equal work with unequal pay. 

If the Hernandez  package is passed,  the nurses' unions would be asleep at the switch if they did not seek equal pay for equal work.

AB 889 (FRAZIER) UP TO BAT while SB 626 (Beall) strikes out

SB 626 (Beall) would have put one helluva crimp in SB 863 (DeLeon). Now that SB 626 has been pulled, perhaps, to be continued next year as a two-year bill, the business community can focus its laser like interests elsewhere, e.g., onto AB 889 (Frazier). 

AB 889 (Frazier) would impose specified requirements on health care service plans or health insurers. AB 889 would require insurers to have "an expeditious process in place to authorize exceptions to step therapy." Step therapy is the process whereby patients are required by their insurance companies to try specified generic medications before being allowed to try newer, better, and probably more expensive medications. Cost control comes before patient care according to this protocol.

Similar legislation, AB 369 (Huffman) was vetoed last year by Governor Brown. Here's what the Governor said about AB 369 in his veto message: "this bill would prohibit a health plan or insurer from requiring a patient to try and 'fail' more than two medications before allowing a patient to have the pain medication prescribed by his or her doctor."

Governor Brown stated that "independent medical reviews are available to resolve differences in clinical judgment when they occur, even on an expedited basis."

We now know that the independent medical review law derived from SB 863 allows the identities of independent medical reviewers to be kept secret and that the law specifies that neither the Workers Compensation Appeals Board (WCAB) nor the courts can alter an independent medical reviewer's decision just because it's wrong, no matter how incredibly wrong it may be. Brown put his foot (well, both feet) further into it when he also said "any limitations on the practice of 'step-therapy' should better reflect a health plan or insurer's legitimate role in determining the allowable steps." Translation: a health-plan's profit center has a "legitimate role" in overruling doctors' medical decisions

Governor Brown should be interviewed about these comments repeatedly.

We recommend support for AB 889 (Frazier). We recommend early lobbying of the Governor since last year he sided with insurance company interests and vetoed a similar bill.  

Update: We are advised that AB 889 (Frazier) is scheduled to be heard by the Assembly Health Committee on April 30th, 1:30 PM, Room 4202. Interested parties, especially those who would like to attend or testify, need to stay alert to possible changes in time and/or date.

A BONANZA OF MALPRACTICE LITIGATION IS IN THE OFFING

STATE SENATE BILLS 491, 492, AND 493 ARE BILATERAL TRIPLE MALPRACTICE BONANZAS FOR TRIAL LAWYERS -- ON BOTH SIDES.

Senator Ed Hernandez's bills to promote expanded scope of practice for nurses, optometrists, and pharmacists,  scheduled for hearing on April 22nd, got pulled from committee just hours before the hearing.

In our previous post on this topic we pointed out, as did others, that these bills lower the level of education and training for healthcare professionals especially with reference to  differential diagnosis and selection of diagnostic and treatment modalities. If it is determined that a lower level of education and training is acceptable, then the same level of reduced education and training should also be acceptable for physicians. Since these bills allow reduced levels of required education for the same or similar services, we should expect increasing levels of malpractice litigation should any of these bills get voted into law -- a boon to  both plaintiffs' and defense bars, a veritable bonanza of malpractice litigation.

Late notice: we're advised that the Hernandez bills will be brought up in committee on April 29th.

NO, NO, NO ON SB 491, 492, AND 493!

Do we as citizens agree to reduce the level of education and training of our physicians while increasing the number of healthcare providers by expanding the healthcare pool to include nurses and others? Some say the Hernandez Trio, SB 491, 492, and 493 would do just that. The critical question is whether so doing  would be advantageous or detrimental to the provision of healthcare generally.

SB 491 would let Nurse Practitioners (NPs) practice medicine on their own, just as physicians do. The argument for so doing is that there is a dearth of physicians especially in rural areas that NPs could fill.
The counter argument is that physicians are better educated and trained in terms of diagnostics, differential diagnosis, and therapeutics, that is, how to distinguish what may seem to be an inocuous illness as opposed to the harbinger of a medical catastrophe. The issue is whether or not the exchange is worth the candle. The probable result of passage of SB 491 is that NPs, once licensed, will skedaddle from rural practice as fast as their physician colleagues and will set up shop where the money is and compete with their more advanced and more highly trained counterparts. THAT'S the underlying issue. The rest is window-dressing.

SB 492 would allow optometrists to act as ophthalmologists without the pesky interval of real honest-to-gosh medical education and training. Under SB 492 optometrists would be allowed to administer and prescribe drugs including controlled substances. Never mind that right now at the same time various task forces are trying to make it increasingly difficult even for well trained physicians to prescribe narcotics. SB 492 implies that full blown medical education is not necessary for safe ophthalmology practice. If one believes that then SB 492 isn't a problem.

SB 493 would allow pharmacists to dispense medications. In some cases, as when a renewal isn't attended to promptly by a physician, pharmacists already do just that. Their argument is that their training in pharmacology is actually more than most physicians get. On the other hand, conveniently ignored is that pharmacists aren't educated or trained in physical diagnosis and often are not equipped to deal with the adverse consequences of medications. The upshot is that they may prescribe and leave it to some physician somewhere to deal with the complications.

Commentary

"Nurse practitioners battle for right to treat patients" is the title of a piece by Shannon Pettypiece, Bloomberg Businessweek reporter. She describes the predicament of Christy Blanco, Nurse Practitioner in El Paso, who has a doctorate degree in nursing practice. Blanco asserts competence in treating diabetes, asthma, high blood pressure, and other conditions. Blanco's problem is that in Texas she is required to contract with a doctor to sign off on medical charts. By contrast no such requirement  exists in New Mexico so Blanco is considering moving there. In her suboptimally used El Paso office she states she is "spending money and making no profit." Ruefully, she adds, "it is a business."

Yessirree, "it is a business," one that has been learned by managed care organizations and corporate American generally and is about to be upgraded by Accountable Care Organizations and pharmacies that are opening their own clinics to be staffed by nurse practitioners and, maybe, even by some physicians (we don't say "even by some doctors" since in due course the NPs will have doctorate degrees in nursing practice).

Competition is not precluded by Hernandez' three bills. Physicians usually leave Nursing Plans in the hands of nurses. They're not required by law to do so. So if competition is the name of the game, one possibility is for physicians to add nursing practice to their own armamentaria. So doing makes more sense than trying to maintain the status quo. We can expect that universities, ever on the prowl for profitability, just like corporate America anywhere, will hire physicians to teach the nurses and then award them "Equivalency Certifications" suitable for framing and display. Physicians can also construct practices entitled to collective bargaining so they can be on equal footing with the nurses who've developed significant enough clout to be direct members of the AFL-CIO (meanwhile, not far behind, is the Union of American Physicians and Dentists, otherwise known as the UAPD or Local 206 of AFSCME, the largest union within the AFL-CIO).

A little known fact, recently revealed by Stuart Bussey, MD, JD, president of the UAPD is that in 2012 the doctors' union was obliged to negotiate with San Francisco County to raise the salaries of the doctors to equal the salaries of the FNPs. The predicament was a kudo for union power on both sides. Unfortunately for the doctors, their preferred professional associations and societies are not unions and are not allowed to negotiate collectively. The nurses don't suffer from this form of erudite elitism.

Professional education has always been considered the democratic equivalent of royal titledom.  We defer to titles, e.g., "doctor. " The nurses' and optometrists' answer is to upgrade alternative forms of education so that the "doctor" title can be bestowed.  Pushing the fact that the higher education and training that physicians get has intrinisic worth is held to be an elitist argument. The answer is to downgrade elitisim. That's where we're headed: less education, less training, equivalency certification, upgraded titles, and a race to the bottom where money lies in tempting repose.

The Affordable Care Act is supposed to upgrade healthcare for all. The expanded application of SB 491, 492, and 493 will downgrade healthcare for all but will expand access to some form of care. This triumverate of bills allows otherwise well trained professionals to work beyond their levels of training. We anticipate in the long run malpractice premiums will increase to accommodate the addition of suboptimally trained new professionals. We recommend a no vote on SBs 491, 492, and 493.

SB 626 (Beall) Tackles SB 863 (DeLeon)

Scaramento Shenanigans : SB 626 (Beall) versus SB 863 (deLeon)

(as of Tax Day, 15 April 2013)

Senate Bill 626 (Beall) is to be heard on April 24th by the Senate Labor and Industrial Relations Committee chaired by the Hon. Ted Lieu. We recommend support.

SB 626 (Beall)  is prompted by the passage and implementation of SB 863 (deLeon) from last year. SB 863,  woefully tilted to insurance company interests,  at first seemed unlikely to be taken seriously. Nonetheless,  buttressed by the insurance industry, SB 863 made it across the finish line. Purporting to act in support of the employer community,  SB 863 last year was rescued by the personal intervention of Governor Brown. Showing both political mastery and subservience to insurance company interests, Brown single-handedly rescued it with one day to go in the legislative year.  SB 626 would reverse much of SB 863. Here's why:

Secrecy in Peer Review for IMR reviewiers

Flying in the face of pleas for transparency, SB 863 provides secrecy for Independent Medical Review (IMR) doctors, hand-picked in part because they're expected to serve the overall interests of the insurance companies. To make sure that wrongful twists and turns IMR docs take that buttress insurance company interests aren't investigated by the Medical Board of California (MBC)  these doctors don't have to be licensed in California. They're exempt from the surveillance of the MBC. In addition, their names are not to be released -- students of history know about the notorious "lettres de cachet" that the French nobility used before the 1789 revolution to imprison political opponents.  SB 626 cancels this unwarranted immunity and subjects IMR doctors to the same discipline as doctors licensed in California.

The argument in favor of secrecy has usually been that the insurance companies can't find enough licensed California doctors to do the job. It was conveniently ignored when this argument previously arose that EK Health had so many applicants for utilization review jobs that the company had to create a waiting list.  It was also argued that similar secrecy provisions were already in place for private insurance. This argument is flat out false. Private insurers do not use  a "lettres de cachet" system. The names of their reviewers are made known. It also turns out that the vast majority of injured workers get treatment through their Medical Provider Networks (MPNs). In these cases, where the treatment of an MPN doctor is surveyed, the IMR reviewer's name is not kept secret. The inequity of these comparisons show why the IMR secrecy imposed by SB 863 should be obliterated.

Secrecy in Utilization Review (UR) 

This issue was reviewed by the Office of Administrative Law in 2006 (I submitted a written protest then on behalf of  the Union of American Physicians and Dentists). In general, the careless wording of the law, approved by legislators whose attention to detail should have been better, did not specify licensure in California as a necessary requirement to doing Utilization Review in California. All the law requires is that the UR doctors be "competent to evaluate the specific clinical issues" of the case at hand. In many cases there is debate about this very point, but there is no debate at all about the requirement to be licensed in California -- the latter is simply not required even though the MBC itself has gone on record as saying such licensure should be required.

SB 626 would require California licensure of all doctors doing Utilization Review and/or Independent Medical Review for injured workers in California. 

In fact, the largest labor union in the AFL-CIO, the American Federation of State, County and Municipal Employees (AFSCME),  voted unanimously for this position in 2006 at its International Convention in Chicago. All the same, California AFSCME supported SB 863 last year. We don't know at this writing where California AFSCME stands on SB 626 (yes, we've asked and await reply).

Economics: how California loses $10 million in taxable revenue

Most well respected insurance companies, State Compensation Insurance Fund (SCIF) among them, want their Utilization Review doctors to be familiar with California law. In Texas, for instance, licensure is required for doctors who want to do utilization review there -- so we have an anomalous situation where doctors licensed in Texas are enabled to do UR in California without a California license whereas California-licensed doctors cannot do UR in Texas unless they also get licensed in Texas. California loses about $10 million annual revenue by allowing UR to be farmed out to non-California doctors in other states. The job-killer here is the legislaure which has found a way in a cash-strapped state to ship $10 million in annual revenue to other states.

The March of the Lawyers

The legal issue is to what extent it is or is not proper to eliminate the WCAB (Workers Comp Appeals Board) from overturning decisions. SB 863 butted its way into this controversy by prohibiting workers comp judges and the WCAB itself from adjudicating disputed issue of medical necessity. This contrivance of law then freed the IMR reviewers from their last constrant -- under present law, SB 863 having been signed into law, IMR reviewers may have their names kept secret, need not be licensed in the state where they practice, and need not worry about having egregiously wrong and harmful decisions overturned by any court. That's because SB 863 limits appeals to fraud, conflict of interest,  bias, and mistake of fact -- not easy to determine if the reviewer is entitled to secrecy.

The legal question that arises is whether or not Article XIV, Section 4, California Constitution, has been violated. Here's part of what it says: "all decisions of any such tribunal shall be subject to review by the appellate courts of the state." SB 626 would make sure that it does.

Chiropractic prejudice?

Injured workers who choose chiropractic as their primary source of treatment run into downright prejudice. Doctors of chiropractic, just as doctors of medicine or dentists, are licensed medical providers.  But SB 863 makes sure that some providers are less equal than others by inserting and implementing a provision that limits chiropractors from serving as primary treating physicians (PTPs) after about 24 treatments. The chiropractic profession is rightfully outraged at this preclusion since it forces injured workers to seek out providers other than the ones they've already chosen and with whom they may be satisfied.  It's as though patient-staisfaction or injured-worker satisfaction doesn't  matter. Clearly, to the writers of SB 863, it didn't matter enough. 

Of interest to purveyors of evidence-based-medicine (EBM) is the origin of the limitation to 24 treatments, often also applied to physical therapists where the treatments may've been ordered by PTPs who are MDs or DOs. It appears that the number, 24, is arbitrary, not evidence-based. This arbitrary restriction deprives injured workers from access to their chosen method of treatment while also enhancing  corporate compensation

SB 626 will put a stop to this form of arbitary denial of access to care.

How about old fashioned prejudice against psychiatric disability?

Medical treatment for psychiatric injury has not been precluded by SB 863 although the significance of this level of injury has been diminished and downgraded by the perpetrators of SB 863. Here's how: SB 863 denies psychiatric-injured patients of indemnity benefits. The psychological harm derived from workplace injury is no longer included in the calculation of permanent disability payments.

SB 626 will make this unfair and ignorant preclusion null and void. Depression and other forms of psychiatric disability were given back-of-the-bus status by the perpetrators of SB 863.  SB 626 will put a stop to this arbitrary denial of reasonable permanent disability.

In future issues we'll discuss AB 670 (sponsored by the California Medical Association), opposition sought by the Union of American Physicians and Dentists to SBs 491, 492, and 493, and SB 809 (DeSaulnier) which would mandate that the Board of Pharmacy increase fees to wholesalers (the bill is known as CURES or Controlled Substances Utilization Review and Evaluation System).

As always, reader comments are welcome and anticipated.