Utilizaton Review (UR) and Independent Medical Review (IMR)

Of these two programs the more perfidious one is Independent Medical Review (IMR) into which the legislature carelessly linked secrecy and finality of decision making. 

The IMR decision is supposedly a final medical decision no matter how incorrect and  harmful that decision may be. It cannot be appealed to WCAB since that otherwise constitutional pathway has been precluded by SB 863. The idea in this situation is that doctors, not lawyers or judges, should make medical decisions. The concept sounds good in theory. Nonetheless, the legislature felt it necessary to protect the IMR doctors from outside scrutiny by keeping IMR doctors' names secret just as in France in the days of the Bastille when secret letters enabled throwing French citizens, including nobility, into prison without trial.

IMR is justly under fire at this time. On 12/03/14 the California Court of Appeal First Appellate District, Division One, granted the petition for writ of review filed by Attorney Joseph Waxman in the case of Frances Stevens, Petitioner, v. WCAB and Outspoken Enterprises/State Compensation Insurance Fund (ADJ 1526353). In a workcompcentral report from 12/18/14 we're told that Stevens had been found 100% disabled. Stevens needed a high level of assistance even for ordinary activities of daily living including personal hygiene. State Comp (SCIF) submitted the request to Utilization Review (UR) which denied the requested home health aide and four medications. An IMR review request was submitted. After a lengthy delay, seven months, actually, Maximus upheld the UR denial. That is when an appeal was filed with the Workers Compensation Appeals Board (WCAB). Part of the legal appeal revolves about jurisdiction, i.e., the constitutionality of Labor Codes 4610.5 and 4610.6. This writer understands IMR is governed in part by LC 4610.6 (h) which says WCAB can only set Maximus IMR decisions aside on what workcompcentral's piece called "very limited grounds" such as fraud, material conflict of interest, racial bias, and other matters such as ethnic or sexual orientation.

Under these circumstances, that a UR decision might have been flat-out wrong, stupid, and harmful, and that IMR approval might also have been wrong, stupid, and harmful, simply doesn't matter under the law. Welcome to "1984" in medical-legal jurisprudence.

Organizations with a stake or interest in the outcome should file amicus briefs as soon as possible, especially medical organizations that purport to have patients' interests at heart.

References (some items listed more than once under separate headings when more than one site used the editorial and if one of the sites is not readily accessible) 

From Workcompcentral:

1) "Malpractice by Utilization Review," 12/19/14;

2) "Utilization Review: Hypocrisy in Velvet Gloves," 3/16/14;

3) "Stevens Writ Granted," 12/18/14;

4) "Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," 12/19/14;

5) "Maximus Upheld Denial of Treatment Four-Fifths of the Time," 12/10/14.

From California Applicants Attorneys' Association:

1) Under Eclips Daily News, 12/19/14, "Malpractice by Utilization Review."

From Politicsofhealthcare.com:

1)  "Is SB 863 an Example of Legislative Malpractice?, " 12/22,14;

2)  "Malpractice by Utilization Review, " 12/13/14;

3)  "Is Utilization Review in the Cards for 2015?, " 12/01/14;

4)  "How Utilization Review and Independent Medical Review ... Deprive Injured Workers," 8/11/14;

5) "Utilization Review: Hypocrisy in Velvet Gloves," 3/18/14.

Is SB 863 an Example of Legislative Malpractice?

In our previous op-ed we discussed malpractice by Utilization Review doctors, namely, which ones were eligible for discipline from the Medical Board of California (MBC) and which ones were able to skedaddle from underneath this potentially onerous obligation. In a nutshell, UR doctors not licensed in California are allowed substantially more leeway than their properly licensed counterparts -- they can deny, modify, or approve care to California's injured workers without being subject to sanctions for unprofessional conduct from the MBC when their incorrect decisions are harmful to injured workers. 

We then discussed  the special relief that's granted to Independent Medical Review (IMR)  doctors such as those used by Maximus. While many of these IMR doctors may be licensed in California, many are not. Physicians do not need to be licensed in California to do IMR thanks to SB 863 which grants at least two levels of protection to this favored class. First, the IMR doctor does not have to be licensed in California. Second, the IMR doctor gets to be anonymous, not unlike the situation in pre-revolutionary France where nobles were allowed to file secret complaints called "lettres de cachet" -- these accusations put hapless defendants into prison. The unlucky defendant was not told the name of his accuser. 

Our editorial entitled "Malpractice by Utilization Review?" has been reprinted on other websites, e.g.,  workcompcentral, California Neurology Society, and has come to the attention of the California Applicants' Attorneys Association (CAAA).  We call your attention to comments that have been submitted to workcompcentral, in particular, one from an orthopedic patient who said "I too am thinking about going to the CA medical board on a UR doctor."

This patient said he was made to "suffer for close to 5 weeks with the headaches that comes with spinal fluid leaks." These situations point out why SB 863 needs to be substantially modified or repealed.

Physicians know that utilization review occurs in diverse forms and isn't limited to workers comp or injured workers -- it's used for managed care of all kinds and for Medicare and Medicaid.

It appears that SB 863 has provided a safe-haven for malpractice protection for UR doctors and their 80% supportive IMR colleagues. It appears that one can argue with reasonable medical probability that SB 863 itself reflects legislative malpractice and has earned the right to be repealed. 

Interested parties are referred to additional specific references (see  below):

"Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," by Greg Jones, Workcompcentral, 12/19/14;

"Maximus Upheld Denial of Treatment Four-Fifths of the Time," by Greg Jones, Workcompcentral, 12/16/14;

"Labor's Comp Expert Stepped on Toes to Make Reform," Workcompcentral, 12/10/14;

"Continuing Hope for Reinstatement of the Lien Activation Fee," Melissa LeBlanc, Workcompcental, 12/22/14.

MALPRACTICE BY UTILIZATION REVIEW?

MALPRACTICE CASE STORY IN PROGRESS

Here's the story we're working on right now: a Utilization Review physician with a California license is being challenged for a decision that is reported to have resulted in harm to a patient. As we go to press, here's what we know: 

1) Patient X sustained brain and spinal cord injury in 2001;
2) Patient X had a three-level cervical fusion;
3) Patient X had been on lyrica since 2008; 
4) Patient X reported relief of symptoms;
5) Patient X did not report adverse effects;
6) UR Doctor Y was referred the case for review;
7) As is the custom in these cases, UR Doctor Y did not interview or examine the patient since so doing is not required by California law covering utilization review;
8) As is the custom in these cases, UR Doctor Y reviewed the documents forwarded by the insurance company, three medical reports that purportedly covered the injured worker's 12-year medical and surgical history;
9) At this point one of the allegations against the UR doctor that could also be directed against the insurance company is that a paucity of medical records was reviewed by the doctor and/or submitted by the insurance company;
10) UR Doctor Y submitted a report advising that the dosage of lyrica which had been prescribed for about 6 years be cut in half;
11) This recommended reduction in medication was accepted by the insurance company which then reportedly declined to authorize the next request for medication refill (we do not know at this time if the actual primary treating physician or PTP agreed, acquiesced,  or rewrote the prescription in accordance with the UR recommendation). We also do not know if the PTP filed an appeal;
12) Patient X did poorly with  the reduced medication and experienced adverse effects;
13) In due course, a California licensed physician got the original dosage restored;
14) Patient X sustained adverse effects that were short-lived and reversed once the original dosage was restored;
15) Patient X now has a lawyer who has instituted proceedings to report UR Doctor Y to the Medical Board of California and to initiate a malpractice complaint. 

In summary, although we believe we know more, the facts as stated above can safely be stated with reasonable medical probability.  In previous op-eds, see also my reprints in workcompcentral,  we've pointed out that Dr. Frantozzi as president of the MBC submitted a letter stating that UR was part of the practice of medicine and required a California medical license -- in this case, the offending UR doctor does in fact have a California medical license which is why the MBC retains jurisdiction in this case. In other cases where the UR doctor does not have a California medical license, there would be no sense in even submitting this complaint to the MBC. Malpractice litigation would be the only choice. In this case, it appears that both options are open. We'll follow up when we know more, Stay tuned. 

MORE, A LITTLE MORE, IS HEREWITH REPORTED: repeal of SB 863 is indicated. 

If you stayed tuned as requested, here's the next bits of information we've gleaned about this patient's plight. The PTP in this case reportedly filed an updated RFA which dutifully got referred back to Utilization Review. A different UR doctor than the one who nixed the original prescription then opined in favor of the original lyrica prescription. The medication was then re-authorized. We're also advised that the Medical Board has now been advised about this case and has been asked to comment on it.  This method of medical practice owes its existence to SB 863. The solution is repeal of SB 863.  Stay tuned, this fight has just begun. 

References

"Medical Board Asserts Jurisdiction Over Utilization Review," workcompcentral.com, by Greg Jones, 2013-06-12;

"Utilization Review Hypocrisy in Velvet Gloves," workcompcentral.com, by Robert Weinmann, MD, 2014-03-26;

"Is Utilization Review in the Cards for 2015?" workcompcentral.com, by Robert Weinmann, MD, 2014-12-03.

PROPOSITION 45 MAY RIDE AGAIN (Regulating Insurance Companies That Sell Healthcare Policies)

Like a reliable bucking bronco used to rodeo participation, Proposition 45 may be down, not out, and capable of rising again if supportive organizations adopt it, revise it, and promote it. 

Among the physicians who were supportive of Prop. 45  we can probably still count on Paul Song and Robyn Young to maintain interest and put up a fight. Doctor Song is reported to have an eye on running for insurance commissioner once Dave Jones has finished his tenure. Young is president of the California Neurology Society and maintains hands-on interest in  medical- political issues in Sacramento and Washington, DC.

What killed Proposition 45 in the November, 2014 voting in California was the widespread perception that regulation of the insurance companies was largely smoke and mirrors. The idea was to allow the insurance commissioner as much authority over the sellers of healthcare insurance as is now allowed with reference to automobile liability insurance.

That meant that the insurance commissioner would be enabled to role back an insurance company's increase in premium it it were judged by the insurance commissioner to be arbitrary, not substantiated by demonstrable need. The insurance commissioner would be judge and jury. 

Careful readers of the proposition quickly realized that what was deemed "arbitrary" might itself be arbitrary and that insurance commissioners might yield to political persuasion. The insurance companies countered with an ad that said doctors, not politicians, should decide medical matters. The obvious riposte was that insurance companies currently readily find ways to deny authorization of care, restricting access to diagnostic studies, specialists, and expensive procedures, sometimes even medicines. The proponents of 45 were caught flat-footed, or when not flat-footed, too penurious to afford proper rebuttal ads. 

The Californnia Medical Association and the Union of American Physicians and Dentists found common ground in opposing 45 -- they agreed that a likely scenario for an insurance company whose increased premium got rebuked would simply be to reduce remuneration to providers such as hospitals, clinics, and physicians. That being so, they opted to oppose the proposition since its obvious effect would be to reduce access to care. The likely next step would be for MPNs (Medical Provider Networks) to fire physicians as fast as possible -- the longer the waiting line for access to care, the lower monthly expenses would be, the higher profits and executive compensation would be,  never mind that overall serious illness would go up. The obvious fly-trap was "insurance  for everybody, medical care for nobody"

As a result these and other medical organizations opposed the proposition even though in their collective guts they may have favored the concept.  Prop. 45 did not cover providers or provider groups because it did not give the insurance commissioner authority to regulate provider reimbursement by the insurance companies.

Now it's up to the proponents to write a proper legislative bill that takes these concepts into account and puts them into legislative language in time for the 2015 legislative session. Since there's a long history on this concept, AB 52 from previous failed legislation, and now Prop. 45 itself, it should be possible to construct a new bill that will tie up these loose ends. The next step will be to get a legislative author and to be available as an articulate sponsor at committee hearings and the like. 

Indeed, since the concept already has traction, my advice is to seek out an appropriate legislator to carry the bill with the understanding  that when he looks over his shoulder he'll see troops in support, not defectors fleeing the political scene. 

IS UTILIZATION REVIEW IN THE CARDS FOR 2015?

Utilization Review (UR) is the process in Workers Comp whereby outside physicians decide whether or not to authorize care prescribed by a PTP (Primary Treating Physician) or consultant called upon by the PTP to advise about the next diagnostic or therapeutic steps that should be taken for an industrial patient or injured worker. Under current California law the UR physician does not have to be licensed to practice medicine in California -- any state license suffices. Proponents of the current system argue in support of the position that where a physician is licensed is beside the point and should not be made an issue. What matters, they say, is that he is knowledgeable in the specialty in which he opines and on this basis should be allowed to approve or disallow authorization for treatment based on accepted peer review guidelines. Opponents point out that the UR physician is actually practicing medicine and should be just as responsible to the state medical board as the PTP.

Opponents assert that some insurance companies go out of there way to find physicians who are more likely than others to be nay-sayers who deny more diagnostic services and treatment than their colleagues. California's state medical board has recognized this awkward situation and is on record saying that UR is part of the practice of medicine and that UR physicians on California cases should be licensed in this state. This writer agrees, but it will take fresh legislation to get this change into law. In fact, three times such legislation actually cleared the California legislature, and three times it was vetoed, twice by Gov. Schwarzenegger, once by Gov. Brown, at the heavy handed persuasion of the insurance lobby. However, the tax circumstances that applied then no longer apply, reason enough to try again and give Gov. Brown a chance to redeem himself.

This topic has previously been discussed in these pages, e.g., "Utilization Review: Hypocrisy in Velvet Gloves," and reprinted in toto in workcompcentral, 2014-03-26.

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

Willful or wrongful denial of care may constitute "unprofessional conduct." If a doctor with a California license willfully or wrongfully denies care, that doctor may be asked to appear before the state medical board for "unprofessional conduct." No such threat awaits the non-California licensed physician. The non-California licensed physician may not be hauled before his own state board, either -- that board would not have jurisdiction in a California case. As matters stand now, the doctors whose decisions invariably favor cost-cutting by denying care need not worry about professional discipline for wrongful denials of care. This situation begs to be changed. It'll require legislation akin to Texas law which requires doctors who do UR in Texas to be licensed in Texas.

At the moment, doctors licensed in California cannot do UR on Texas patients without first getting licensed in Texas. By contrast, Texas doctors who aren't licensed in California may deny authorization for diagnostic studies or treatment ordered by doctors licensed in California who are trying to take care of patients injured in California. The California doctor ends up carrying the proverbial malpractice bag through no fault of his own. The non-California doctor who actually denied the diagnostic study or treatment skedaddles away paid and unscathed.

One major lobbyist told me he's all for revising Utilization Review law but would need to be assured that the Governor would not veto it this time. As anyone knows who has dealt with Gov. Brown, we do not offer guarantees on what he'll do or won't do. Our job is to persuade.

UR in California is often buttressed by a yes-man mentality from IMR physicians, that is, from Independent Medical Review doctors who also don't need to be licensed in California and, who, to make matters worse, are actually protected by anonymity endowed by recently passed California legislation which also cries out for adjustment, better yet, outright repeal (we refer here to SB 863, DeLeon). The Medical Board of California (under then President Richard Fanozzi, MD) stated in a letter dated 8/25/08 that the MBC supported legislation that "would require a physician who is conducting utilization review to be licensed in California " because that "would provide increased consumer protection over decisions that do not have patients as its primary concern."

Instead, what has happened with IMR is that "consumer protections over decisions that do not have patients as its primary concern" has been weakened.

Organizations that have previously expressed concern with current standards re UR include the California Society of Industrial Medicine and Surgery (CSIMS), California Physical Medicine and Rehab (CPM&R), California Medical Association (CMA), California Applicants' Attorneys Association (CAAA), Union of American Physicians and Dentists (UAPD), Voters Injured at Work (VIAW), LatinoComp, and California Neurology Society (CNS).

We're now obliged to wait to see which one takes the lead on UR and IMR reform in the 2015 legislative year. Our recommendation is that it be a consortium that pools its resources. 

Will Proposition 46 suffer from an over-the-top advertising debacle?

A recent advertisement for Proposition 46 depicts a purported doctor in white coat adorned with casually strewn stethoscope over his shoulders sitting at a bar while ordering a drink, presumably other than ginger ale, while his pager goes off -- he's being called to the emergency room, no matter if he's in a drunken stupor. 

With this final flailing effort, Consumer Watchdog appears to have hurled its last lightning bolt in support of Proposition 46, the initiative to raise trial awards for pain and suffering in malpractice suits from $250,000 to $1.1 million. Consumer Watchdog, down to its last one million dollars, reportedly wagered the entire store on this last-ditch effort. It's a gamble that may have misfired.

While consumers are not as mesmerized by physicians as once they were, they're still not at a level where they believe that doctors in general have sunk to this level.  Physicians are still generally admired by the public. Physicians who fall short of public expectations suffer mightily in the court of public opinion and are subject to discipline by the medical board.  The public, more sophisticated than Consumer Watchdog realizes, are not easily misled. 

This latest ad depicting a presumably inebriated doctor on his way from the saloon to the emergency room may have overshot the mark and turned undecided Proposition 46 voters into NO votes on 46.  Consumer Watchdog reportedly depleted its campaign funds with this desperate advertisement and along with it sacrificed its own credibility.

PROPOSITION 45 HEATS UP

Enter now Paul Y. Song, MD, into the Proposition 45 debate. Actually, he's been there all along, has already appeared in my edits, testified at the all day hearing on 45 before it was known as Proposition 45,  and is said by some to be a prospective candidate for insurance commissioner.

In his editorial entitled "Why Are CA Doctors Breaking Their Hippocratic Oath on Prop. 45," Song asserts that the doctors and nurses opposed to 45 are protecting the insurance industry. He says "it is unconscionable." His main point seems to be that there is no conflict with the "independent commission" whereas "Covered California is actually run by purely political appointees." THAT is no news to us -- we don't know of any commission where prospective appointees are required to pass achievement tests and demonstrate that they know anything other than how to make political contributions. Song points out that some of the Covered California persons "have a long cozy history with the private insurance industry." Song points out with some relish that "it is the private health insurance industry and their administrators, many of whom have never cared for a patient, who are denying care, while telling doctors what treatment and drugs they can provide."

Song says that Prop. 45 "would simply apply the same regulatory framework to health insurance which has proven so successful regulating auto, home, and medical malpractice insurance in California." He likens Prop. 45 to Prop. 103 vis-a-vis auto insurance rates.

The juicier parts of Song's editorial include his telling certain persons and groups to "stop spreading ... lies." Take a look at it, and Young's editorial, and Bussey's. In many ways Prop. 45 is more substantial as important legislation than Prop. 46.

Our point is that while Prop. 45 if it passes will have the bite of law, its eventual teeth will be in the rules and regulations that follow. The proponents will need to make sure that the rules and regs are composed by forces that want it to succeed. Are they ready and prepared for the job?

References

You can follow Paul Y. Song on Twitter at www.twitter.com/paulysong; Bussey's editorial is referenced in our previous post & appears in UAPD Pulse; Young's editorial is referenced in our two previous posts and on the website for the California Neurology Society 

Proposition 46 -- last word, well, almost!

Proposition 46, most voters have figured out, is about raising the limit on "pain and suffering" from $250,000 to $1,100,000 if not more. This amount would be in addition to unlimited economic damages which is already the law. In other words, a cadre of lawyers whose specialty is medical malpractice would be emboldened to sue in circumstances where they might otherwise decline. Ask yourself what would be the consequence of so doing according to Proposition 46?

1) Most likely, insurance companies will raise their annual premiums for a family of four by about $1,000 to $1,250.

2) State and county hospitals, supported by tax dollars, often get virtually hopeless accident cases where medical error may occur even in the hands of the most skilled surgeons. To cover the costs of increased malpractice payouts it is likely that state and county taxes will go up. 

3) What about the system whereby physicians would be obliged to find out what drugs their patients were on before prescribing analgesics for pain. Truth is, I personally called into the system months ago to ask about a patient. That was before Proposition 46 was known. Nobody was home. I was advised that although the program existed in theory it wasn't funded well enough to have full time staff with telephone exchange and answering services. Not to worry, increased taxes should take care of that deficiency. But isn't this system the one we depend upon for privacy about our medical prescriptions? Additional safeguards will be needed. Not to worry about that, either -- increased taxes should pay for enhanced privacy protection, shouldn't it?  

Conclusion: the trial lawyers didn't do a scholarly enough job in putting Proposition 46 together. As written Prop. 46 puts ordinary citizens at risk for increased costs for health insurance premiums, for increased state and county taxes, and for invasions of privacy. It should be defeated. Vote No on 46.

Proposition 45: pro and con

Robyn G. Young, MD, president, California Neurology Society, presents her case for Prop. 45 in her editorial available on ca-neuro-society.org (it is also summarized in our previous blog in the end-of-article listing of references).

Now comes Stuart A. Bussey, MD, JD, president, Union of American Physicians and Dentists, who writes in the "The UAPD Pulse" why Prop. 45 does not deserve passage.

Bussey's piece makes these points:

1. Prop 45 would shift regulatory authority from an independent commission to one political figure who would then become a "pressure point" subject to special interests.

Comment: the independent commission is also subject to special interest pressure, but it's more difficult to get to an entire committee than one person. On the other hand, commissioners get their jobs by appointment, political appointment, not by scoring well on achievement tests.

2. Bussey points out that under the ACA administrative costs are limited to 20% -- anything over that "must revert back to patient services."

Comment: Trouble is that the insurance companies often try to sneak administrative costs into the "patient services" sector. Example are utilization reviews requested by insurance companies that seek to disguise them as "consultations."

3. If  Prop. 45 passes a likely revenge step the insurance companies will take will be to slash provider reimbursement. Agreed, that's what they'll do, not that they don't already do it. The independent commission has not roared its disapproval of provider abuse.

Comment: It's also likely that the insurance companies and MPNs (Medical  Provider Networks) will jettison hundreds of doctors as a way to reduce expenses (not that that hasn't already been done). That in turn will force the remaining doctors to see more patients faster (the short visit you get now will be made even shorter).

My opinion: if Proposition 45 passes, the next step will be the implementation of rules and regulations. Proponents should be ready to take that matter on from Day One. That means day-to-day readiness to participate in the regulatory process. Proponents feel they have a better chance at fair regulation with Proposition 45 than without it. Opponents are skeptical, and with good reason, e.g., the unions bent over backwards to get Brown elected Governor only to find out yesterday that he vetoed all three of their bills. Would a single insurance commissioner be different?

The latest re the ACA: a laboratory in San Jose has just  billed a doctor's office for laboratory work done for Medicare patients. The lab in question said that changes in the Affordable Care Act made in January of 2014 allows them to do so. We'll look into this matter and see what the current insurance commissioner wants to do --  it'll be a prelude to what he'd do were Proposition 45 to pass.

In our next blog, we're planning on a few parting shots re Prop. 46,

Question: When should lawyers be tested for drugs?

Answer: When they're awake.

OBAMACARE, COVERED CALIFORNIA, PROPOSITION 45, A CONVENIENT ALLIANCE

It  is not commonly realized by participants in health care plans sponsored by health insurance exchanges derived from the Affordable Care Act (ACA) that these plans are subject to changes allowed under the law.  The meaning is that a plan purchased this year may have been compliant with the ACA (Obamacare) at the time of purchase but may not remain compliant with changes that the ACA allows these plans to make (including the annual premium which may be raised annually if that's what the executives of these plans want). 

We understand that the ACA and the exchanges have dealt death blows to many longterm relationships between patients and their doctors.  It is not uncommon to see posters in clinics that state that the clinic and its doctors do not accept Covered California subscribers. 

Take a look at what it means to buy into a Bronze, Silver, Gold, or Platinum Plan. These plans reflect "actuarial values" which means the percentage of the covered benefits that each of the plans is expected to pay, e.g., Bronze Plan subscribers pay the least in annual premiums while paying the highest co-pays. Conversely, Platinum Plan subscribers pay the most for their annual premiums and in return pay the lowest co-pays. 

Currently, the Bronze Plan covers about 60% of health care costs. The Silver Plan covers about 70%. The Gold Plan covers about 80%. The Platinum Plan covers about 90%. The unpaid gap is the subscriber's co-pay, highest for patients who are strapped for cash and are obliged to purchase the lowest price plan, lowest for patients who can afford the Platinum Plan. That means that doctors, clinics, and hospitals who have a high percentage of Bronze Plan participants are most likely the ones who'll be stiffed on required co-pays. 

Here's the rub: each of the plans has a range that it's supposed to cover, e.g., at the time of this writing the Bronze Plan is reported to cover from 58 to 62 percent. It is expected that as time marches on there will be changes, even favorable changes in these plans. Because of how the ACA is written and because of how the exchanges function, a Bronze Plan that now covers 60 percent may at some time in the future cover 65%. The rub is that the next step up in the ACA division is the Silver Plan which starts coverage at 68 percent which means that your Bronze Plan no longer qualifies as a Bronze Plan but also doesn't qualify as a Silver Plan. So your plan is no longer valid under the ACA. 

What may be even harder to understand is that the Platinum Plan also has limits. It cannot cover more than 92 percent. So doing is not legal under the ACA.

So where does Proposition 45 which is on the November ballot in California fit in? Proponents of the ACA or Obamacare fear that passage of Proposition 45 could prove harmful to the ACA since the Covered California exchange recently negotiated a rate increase for its over one million plus enrollees. 

The ACA makes purchase of healthcare insurance mandatory but does not regulate premium prices. Covered California, like other insurers, does not want to have rate increases it can currently negotiate subject to being rescinded by an insurance commissioner. Proposition 45 would  empower the insurance commissioner to do just that. The Insurance Department in California is reported to have found that rate increases from 2013 to 2014 are from 22 to 88 percent (the Covered California board has not voted a position one way or the other on Propostion 45 as of the date of this article).  

References for this piece: 

1) THE HILL Newspaper,  Washington, D.C., "What Obama should've said about healthcare reform," 9/16/09, by Robert L. Weinmann, MD;
2) POLITICO, "GOP govs could gum up Obamacare," 2/10/10 ("I will ensure that no government bureaucrat gets between you and the care you need"), by Robert Weinmann, MD; 
3) John C. Goodman (www.Forbes.com/sites/John Goodman, 9/23/14 ("if you like your insurance you can keep it");
4) SAN JOSE MERCURY NEWS, "Measure creates odd alliances," Tracy Seipel, 9/26/14;
5) Editorial, Robyn G. Young, MD, President, CALIFORNIA NEUROLOGY SOCIETY, 9/17/2014 (www.ca-neuro-society.org): these three points are emphasized:
  a) Prop 45 will require public disclosure of hearings re health inssurance rates;
  b) Prop 45 will require approval of changes in health insurance rates by the California Insurance Commissioner;
  c)  Prop 45 will require sworn statements about the accuracy of information submitted to the insurance commissioner to justify proposed rate changes.

  Comment: Prop 45 proposes transparency that the ACA (Obamacare) has consistently denied, e.g., Pelosi's laughable comment that the ACA had to be passed so we could see what's in it and then an Independent Payment Advisory Board (IPAB) that by law need not include even a single physician. The Covered California board likes the murky mists of non-transparent legislation. THAT is what Prop 45 seeks to change. THAT scares insider deal-moguls to the very core of their existence.  

FLORIDA DOCTORS FIGHT BACK

From the Association of American Physicians and Surgeons, AAPS News, September, 2014, we learn that the Florida Medical Association passed the following resolution, namely, "that the FMA advocates that the lack of specialty board recertification (italics added) should not restrict the ability of the physician to practice medicine in Florida." 

In a feisty letter-to-the-editor, Ellen McKnight, MD, Pensacola, writing over the title, "FMA Passes Anti-MOC Resolution,"  stated that "hospital employed physicians should immediately use this to remove MOC requirements from hospital medical staff bylaws."

In a previous editorial in this blog, "How Physicians Eat Their Young," 2/12/14, we showed how the specialty boards use MOC and  re-credentialing to convert their previously august and professional objectives into money-making opportunities for themselves. We recommended taking a look at each board's IRS Form 990, not only for what is reported, but also for what is not reported, e.g., individual compensation arrangements.

We provided references for interested parties. Among the juice-laden items we revealed was that as of 2011 the American Board of Internal Medicine reported total assets of $57, 586, 843 -- so what, dear reader, for what purpose do you think ABIM needs nearly $60 million? 

We informed our readership that as of 2011 the ABIM board chair was remunerated about $800,000. We revealed that recertification costs for an allergist were $2,700 and that MOC costs for an allergist were $2,850. 

Do not think for a moment that FMA's resolve to reduce the necessity for recertification will go unnoticed by the boards -- the huffing and puffing are still to come. We await and expect similar resolutions from other state medical associations, unions, and professional societies. 

Peer-reviewed journal  references are appended to our 12 Feb 14 editorial entitled "How Physicians Eat Their Young." 

DOCTORS MEDICAL CENTER AND ITS EMBATTLED NURSING AND MEDICAL STAFF

The Los Angeles Times Data Desk report on 61 closed California hospital emergency rooms is ominous. Some hospitals closed altogether, e.g, Saint Louise Mental Health Center in 1999, San Jose Medical Center in 2004, and Martin Luther King Jr -Harbor Hospital in 2007

Now we're waiting to see if a similar fate will overtake Doctors Medical Center in Contra Costa County. A Contra Costa Times editorial dated 8/28/14 provided a dismal outlook and, said, yes, it was the fault of the "nurses and physicians." The newspaper's editors said the nurses and physicians were "more concerned with protecting unsustainable jobs than ensuring adequate emergency service." The nurses and doctors were at fault because they were trying to maintain the hospital as a "full-service hospital." 

The newspaper, in a masterpiece of misunderstanding, opined that keeping a full-service hospital wasn't "realistic." On its side, the paper was able to state that "the district borrowed to keep Doctors running the past few years." The editors said that this effort was burying West County taxpayers deeper in debt." The editors didn't mention that this effort also saved countless lives over the years and if properly funded would continue to do so. 

But, then, the CCTimes is no friend of the hospital. In 12/01/13 the editors opined that "death for Doctors Medical Center is only a matter of time" and that the emergency room service at DMC was already on life-support. The editorial board opined that DMC wouldn't make it past the Spring of 2014. While matters are still rough at DMC, the editors should take note that the Harvest Moon Festival from The Fall of 2014 is already behind us and the medical and nursing staffs are still soldiering, still doing good for many, and even saving lives.

The issue is whether or not patients come first, or profits. 

The main problem according to  CCT is revenue shortfall (that's the lingo financial people use for going broke). CCT pointed out that in 2011 the West Contra Costa Healthcare District which operates the hospital won a $47-per-house tax increase. Declining hospital inpatient volume was and is a serious problem. What do do?

Richard Stern, MD, DMC Chief of Staff, issued a statement wherein he said that "the county's effort to support the medical needs of West County residents has been the equivalent of providing ... fire extinguishers. This will not help when the next Chevron fire ignites homes and there is no infrastructure to fight the fire." Stern has a point when he says "it is time for the politicians to respond to the needs of the entire county and for the Contra Costa Times editorial staff to educate itself on the real issues here and its role in fomenting this human tragedy." 

"Medical Board decides it does have authority to discipline utilization review physicians"

In a press release from the California Medical Association (CMA) dated June 25, 2013 the Medical Board of California was reported to have  concluded that the medical board "agreed that physicians conducting worker's compensation utilization review were indeed engaged in the practice of medicine and subject to review by the board." The release also stated that "the board does not, however, have jurisdiction over out-of-state physicians performing utilization review in California." The release explains that Governor Brown vetoed AB 584 (Fong) in 2011 "which would have required worker's compensation utilization review physicians to be licensed in California." The release stated that "CMA supported the bill ... to require that all utilization review be done by California-licensed physicians in order to ensure that there is a disciplinary pathway for the medical board in case an injured worker is unduly hurt by a utilization review-based modification or denial of care."

Presumably, the MBC still holds to this view. Likewise, we believe that other organizations aside from the CMA still hold to this view, e.g, the Union of American Physicians and Dentists, the American Federation of State, County and Municipal Employees (AFSCME, AFL-CIO), and the California Society of Physical Medicine and Rehabilitation (CSPMR).

That is why we're surprised to understand that at the present time the MBC reportedly does not feel this issue merits priority action. 
Perhaps we'll learn we're not on target in this understanding when the MBC meets this autumn in San Diego. 

HOW UTILIZATION REVIEW AND INDEPENDENT MEDICAL REVIEW WORK TOGETHER TO DEPRIVE INJURED WORKERS OF CARE

The Medical Board of California is not at this time placing high priority on reform of either Utilization Review (UR) or Independent Medical Review (IMR).  

UR is required before Primary Treating Physicians (PTPs) or consultants can initiate diagnostic studies and/or institute treatment. UR physicians can deny or modify diagnostic or treatment requests by treating doctors. For instance, in one case we're studying, an orthopedic surgeon asked for authorization to do a preliminary treatment and if that treatment failed to go ahead with a fusion. The UR consultant authorized the preliminary treatment, not the fusion. Trouble is the authorized preliminary treatment failed. Since the request to do a fusion should the preliminary fail was denied, this injured worker will now go without the recommended follow-up fusion advised by the expert opinion of the evaluating orthopedic surgeon. The inherent absurdity in the program is that the UR doctor did not interview or examine the patient and reviewed only whatever records were given him by the insurance company. 

A current case that has come under our review concerns a patient who has lifetime medical care and who from time to time when symptoms recur gets physical therapy -- not this time, though! The request for physical therapy, reviewed by Doctor Unctious (his real name is kept secret by the Independent Medical Review Service run by Maximus) denied the request for physical therapy. The treating doctor won't be able to quiz Doctor Unctious because his real name is "protected" by Maximus. This kind of secret denial harkens back to the French Revolution when secret "lettres de cachet" filed by nobles enabled imprisonment of named victims without having to disclose who wrote the "lettre de cachet" in the first place. Perhaps it's better that Untious' real name isn't known. So far our review suggests that Dr. Unctious' professional conduct deserves disciplinary review by the Medical Board.

Aye, but there's the rub! Unctious does not have a California license and under California law does not need to be licensed in this state to practice UR in California. He is free to deny or modify care without a California  license to practice medicine. The official letter denying care trumpets that Unctious is licensed in Ohio and Texas, but those boards can't review Unctious' clinical conduct because those boards don't have jurisdiction in California. 

The California legislature has passed three bills requiring UR doctors to be licensed in California. All were vigorously  protested by the insurance industry. All three bills were vetoed, twice by Schwarzenegger (no surprise) and once by Brown (big surprise). The meaning of this quirk is that non-California licensed doctors do not come under the jurisdiction of the MBC whereas the  PTPs who  are left holding the bag when treatment isn't authorized remain subject to discipline by the MBC.

Texas requires doctors who do UR on Texas patients to be licensed in Texas.  The upshot is that Texas doctors may do UR in California without being licensed in this state whereas California doctors who want to do UR in Texas must first get a Texas license.

So here's how the "double whammy' works: first, UR denies treatment. Then, instead of judicial review by the WCAB, the case gets turned over to Maximus with its cadre of anonymous doctors who have in common with their UR counterparts that they also don't have to be licensed in California.

Epilogue: In the case at hand the patient is getting the P.T. he needs. He's just paying for it himself.  We regret that the Medial Board of California doesn't see enough inequity in this desultory situation to demand that UR and IMR doctors be licensed in California.

CALIFORNIA CUTS NUMBER OF UNINSURED

"California cuts number of uninsured" was the headline for the San Jose Mercury News Editorial on July 15, 2014." The editorial iself stated that California "has cut the percent of residents without health insurance in half since last summer, from 22 percent to 11 percent of the population." The editorial then blurts out that "the percentage of uninsured Americans has dropped from 18 to 13.4 percent in the same time"and "would have dropped even more if all the states were taking advantage of the Affordable Care Act's health exchange program."

Comment: these statements show how correctly quoted statistics can cause misunderstanding and to all intents and purposes lie outright. I personally queried ten doctors at a local hospital. It turns out that none of them accept Covered California since the plan sticks it to them

PROPOSITION 45, MORE POLITICAL FIREWORKS ABOUT HEALTHCARE POLITICS

ALERT.


So far we've put our focus on legislation with numbered bills, e.g., AB 1340 or SB 1215, and on the Troy and Alana Pack Safety Act, the malpractice initiative now known as Proposition 46, which is expected to galvanize autumn politics in California. We also recently spent nearly a full day attending hearings in Sacramento on healthcare politics and funding, now coming home to roost in California as Proposition 45. Watch for our stories on Proposition 45 which also promises political fireworks.  . -- Robert L. Weinmann, MD, Editor

LEGISLATIVE FLAME-OUTS RE MEDI-CAL, OPHTHALMOLOGY, AND FAIRNESS IN CONTRACTING

AB 1805 (Skinner & Pan), which would restore the 10% cut in Medi-Cal reimbursement for Medicaid patients in California, is bogged down, mired in the mud of the Assembly Appropriations Committee where it is being held hostage. The 10% cut was imposed by the state budget in 2011 and recently was denied restoration by Governor Brown's recently revealed budget for 2014. It is clear that the Governor isn't going to do much to help Medi-Cal recipients or their treating doctors. Even if the bill passes, it'll have to survive his Gubernatorial veto. Readers interested in the survival of this bill will be obliged to rely on the democratic process, i.e., they'll need to call their elected state reps.


AB 2400 (Ridley-Thomas), sponsored by the California Medical Association, which would have allowed providers the ability to negotiate changes unilaterally made by health plans and their insurance companies, or to terminate the contract if agreement could not be reached, has bitten the dust. The tilt of the current administration, like the one that preceded it, is towards big business and against hapless patients and their beleaguered providers. This bill was residing uncomfortably in Senate Health Committee. Now it rests in not so peaceful repose. Readers interested in this bill will need to try to restore interest and build a wider coalition in 2015 than they had this year.


SB 492 (Hernandez) which would allow optometrists to practice aspects of ophthalmology that they are not currently licensed for has had better success. This bill passed Assembly Business and Professions Committee. It is opposed  by the California Medical Association, the Union of American Physicians and Dentists, the California Neurology Society, and a host of professional organizations whose weight in this case is negligible since their combined opposition is regarded as turf protection. 


One success is the failure of SB 1215 (Hernandez) to clear the Senate Business and Professions Committee. This bill would have eliminated the in-office exception for specific procedures such as physical therapy and advanced imaging including CAT and MRI scanning, ultrasound, and other procedures, thereby sending patients on a perpetual run-around. Readers can learn  more about this bill on the Advocacy and Legislation sections of the California Neurology Society website. The CMA, UAPD, CNS, et al were opposed and were part of a wide coalition in opposition.


An aulde lesson in these bills is the importance of coalitions not all of whose members need necessarily have a stake in the outcome. Protection of public welfare still plays a role albeit not as much as many of us would like.

ALERT: The trial lawyers' malpractice initiative has now been officially designated as Proposition 46 while the campaign against it, which we support, will be known as the No on 46 Campaign. The idea is to add Proposition 46 to our list of flame-outs lest its carelessness and callousness burn irreparable damage into California's health care.

Malpractice and drug testing: Pee Pee Politics (PPP)

We've been asked several times to provide the dates of our posts on the Pee Pee Wars, namely,  the trial lawyers' attempt to disguise advantageous malpractice reform in their favor while making it seem as though they want to protect the public by testing doctors for drug abuse. The Triple P moniker arises from the method of testing, namely, micturition into little cups. Here's the dates of our posts: 6/25/14. 5/28/14, 4/27/14, and 4/24/14. - RLW, editor

P.S. The trial lawyers' initiative, The Troy and Alana Pack Safety Act,  has now been officially designated Proposition 46. Accordingly, we recommend support for the NO on 46 campaign. - rlw, ed.

Interim Bill Review: AB 1340, 2400, 1805, 1886, and the thinly disguised malpractice initiative

This post includes late additions to the original posting


Assembly Bill 1340 (Achadjian) that would establish Enhanced Treatment Programs is a life-and-death issue for nurses, technicians, and doctors who take care of the sickest and the meanest among us. For this privilege the trial lawyers would like to force the doctors, but not themselves, to pee in a cup. That's the program the trial lawyers are hiding behind in their shameless effort to get higher malpractice awards for themselves under the guise of the Troy and Alana Pack Safety Act which has as its most likely main benefit for a family of four the opportunity to pay $1,000 more annually for health insurance.


Assembly Bill 2400 (Ridley-Thomas) would level the playing field so that Big Biz insurance companies would not be as able as they are now to drive down access to care for patients with chronic and expensive illnesses. For this privilege the trial lawyers want the doctors to pee in a cup. The trial lawyers who have even gone so far as to concoct bogus statistics actually are the ones who should pee in cups. Their campaign cited a report from March of 2000 by the California Medical Board which said "many believe" that 15% of the general population has problems with substance abuse and that among health care professionals the lifetime level might even be 18%. This rough estimate was a supposition, not a researched statistic. Moreover, this lifetime risk translates to no more than 2% at any one time. The trial lawyers' addled research team that thought this one up should pee in as many cups as can be distributed as quickly as possible.


As for the convicted drunken driver who fled the scene  after running down 10 year old Troy and 7 year old Alana Pack,  it is known that she had three drunken-driver convictions before the accident.  Because she fled the scene and evaded the authorities for two days, a timely blood alcohol test was not obtained. While she was on the run, her apartment was searched. Cocaine was found. She eventually told police she'd taken vicodin prescribed by her treating doctor. Her legal defense at trial was that it was her doctors' fault because they prescribed the medicine for pain relief. She did not assert that they also told her to drive under the influence. Her sentence: 30 years in prison.


Our reward, as doctors whose duty includes the relief of pain, is now supposed to be to pee in cups while prosecutors who get wrongful convictions because they withheld exculpatory evidence from the defense booze it up when what they deserve is to pee in cups and then serve out the time they foisted upon defendants who've since been released because of wrongful convictions. It's a logical next step to have every lawyer,  as he passes through security to enter the courthouse, pee in a cup.

Late flash: the trial lawyers' initiative has been officially designated Proposition 46. The campaign against it will be known as the No on 46 campaign. We support the No on 46 Campaign.


Medi-Cal: we support AB 1805 (Skinner and Pan) which would restore the 10% cut in Medi-Cal remuneration that was installed by the State Budget Act of 2011.  It isn't lost on us that devoted  doctors who take care of the sickest and poorest among us would also be obliged to pee in the trial lawyers' cups. Of course, some might say that Gov. Brown already did that for them when he sent through his recent budget bill which managed once again to give the short end of the stick to the doctors who care for Medi-Cal patients. His having done so raises the ugly spectre of  a possible veto of the Skinner-Pan bill even if it passes handily.


AB 1886 (Eggman): Its original aim, while modified pursuant to amendments obtained by the CMA, remains unchanged, e.g., indefinite posting of disciplinary actions, civil judgments, and arbitration awards against doctors, just enough to make sure that good doctors who  run afoul of one or another disciplinary board become persona non grata to whatever managed care, HMO, or PPO organizations that want to use even minor misdemeanor convictions to ruin careers. It's all about the control and humbling of what used to be an honored profession. Doctors need to learn to say "no" to their would be overseers.
 
So here are our recommendations: yes on AB 1340, yes on AB 2400, yes on AB 1805, and no on AB 1886 and no, no, no on the Troy and Alana Pack Patient Safety Act, now officially designated as Proposition 46. Accordingly, we urge support for the No on 46 Campaign.


References


www.politicsofhealthcare.com, 4/29/14, Oppose AB 1886 (Eggman) Unless Amended, and California Medical Association Legislative Hot List, 6/02/14 (author accepted CMA's amendments , CMA now neutral);
www.politicsofhealthcare.com, 6/24/14, AB 2400 (Ridley-Thomas), Deserves Support plus an amendment;
www.politicsofhealthcare.com, 6/23/14, AB 1340 (Achadjian), Deserves Safe Passage;
www.politicsofhealthcare.com, 6/18/14, AB 1805 (Skinner & Pan), Supporting Medi-Cal and 6/16/14, Medi-Cal Patients Snubbed by State Budget;
www.politicsofhealthcare.com, 4/24/14, Random Drug Testing for Lawyers and 5/28/14, Drug Testing for Lawyers and Pharmaceutical Executives

AB 2400 (Ridley-Thomas) deserves support plus an amendment

AB 2400 (Ridley-Thomas), sponsored by the California Medical Association, deserves support. As matters stand now, certain Goliath-like health plans force physicians to accept  contract terms that are harmful to patients, for instance, contractual terms that are adverse to patients with chronic diseases who are more expensive to maintain than healthy 30 year olds. The idea is to force physicians to drop their sickest chronic patients to reduce corporate expenses and increase executive compensation. This bill would put a stop to the perfidious corporate healthcare practice of dropping doctors who insist upon trying to negotiate contract terms or who refuse to accept unilateral material changes in existing contracts. This corporate practice is known as "take-it-or-leave-it."


This bill would allow changes in health plans only if the provider has negotiated or agreed with the provision and if the provision is in accordance with state or federal laws and regulations. Otherwise, the provider will be enabled to opt out of the contract even though it was previously agreed upon. This bill is aimed at the unfair and heavy-handed practices imposed upon patients and their physicians by group health plans and PPOs. It is expected to spill over into Workers Comp, e.g., Coventry (Aetna), Anthem/Blue Cross, etc.


Meanwhile, here's the latest heavy-handed move to inconvenience injured workers and their treating physicians: Travelers Indemnity Company and Constitution State Services, quoting CLC 4600.2, have informed their providers that starting June 20th "all prescriptions for workers compensation related medications and medical supplies must be filled by a network pharmacy ... no payments will be made  for prescriptions or medical supplies provided by a non-network pharmacy, clinic, or medical  office after July 31, 2014."


A provision to take down this latest dictate should be amended into AB 2400 by the authors.

ASSEMBLY BILL 1340 DESERVES SAFE PASSAGE: SO DO DOCTORS, NURSES, AND PATIENTS

Assembly Bill 1340 (Achadjian) deserves favorable consideration: here's why.

Today, in my day-to-day role as a physician specializing in neurological injuries and diseases, I examined a nurse who in the course of trying to take care of a mentally unstable patient, got so badly beaten up that her head and neck injuries preclude her from returning to work in almost any capacity. Could her injury have been prevented?

Sadly, the answer is yes. Luckily, the same answer portends better for others in a similar position in the future.

About 4 years ago at Napa State Hospital (NSH) Psychiatric Technician Diana Gross was killed. Further less dire incidents have happened since then at NSH and other mental health facilities. At Atascadero State Hospital (ASH) one mentally unstable patient killed another. All this despite increased guard patrols and police attention.

Psychiatric technicians, nurses, and doctors are now calling for preventive measures in the form of AB 1340 (Achadjian) which would mandate intensive treatment for high risk patients. The bill would require that Enhanced Treatment Programs (ETPs) be set up in California by State Hospitals and would enable state hospital psychiatrists and psychologists to refer patients to ETPs as needed, i.e., when it is determined that a patient is potentially dangerous to himself or others because of impaired mental status when there is evidence of proclivity to violence. The bill would require professional forensic medical evaluations.  Patients could then be assigned to an ETP for up to a year but with provision for re-evaluation within one year.

Psychiatric technician Linda Monahan was quoted in BUSINESS WIRE as having said "Legislators need to understand that we struggle to provide the best patient care possible under extraordinarily dangerous conditions. Some of our patients' mental illnesses make them predatory or sociopathic. Those few are responsible for the majority of the violence we endure. We need specialized programs to provide those patients with more effective treatment while also making hospitals safer for other patients and staff."

It is probably true that the civil rights of these violent patients may be obliged to play second fiddle to their mental health needs until such time as they're enough better to accept treatment in traditional and less supervised environments. Managers of these programs will be obliged to ensure that a proper balance is struck.

My patient today, a devoted nurse who'll probably not work again because of her injuries, is among the lucky ones. She's still alive.

We owe it to her and her colleagues to give them more protection in the form of safer working environments where their skills as doctors and nurses won't depend upon the ability to duck a punch, a kick, or a weapon.

References

Napa, CA., BUSINESS WIRE, 6/09/14

CAPT (California Association of Psychiatric Technicians), 6/06/14

AB 1340 is sponsored by the Union of American Physicians and Dentists (UAPD) and is co-sponsored by the American Federation of State, County and Municipal Employees (AFSCME)


 

SB 492 (HERNANDEZ) re optometry vs. ophthalmology

SB 492 (Hernandez) is in the process of being prepared for committee hearing. This bill intends to water down ophthalmology in order to facilitate optometry (the lacrimation of ophthalmology). In general it's part of Senator Hernandez's overall effort to reduce the scientific and scholarly requirements of medical practice that currently requires a medical degree. In a recent previous post our report revealed why a California hospital's Board of Directors recently voted to allow a nurse practitioner to join the medical staff and have admitting and discharge privileges despite a negative vote by the hospital's Medical Executive Committee. In effect, this hospital passed a mini-version of SB 491 (Hernandez) which was intended to equate MDs and Nurse Practitioners (SB 491 failed in the legislature but has had new life breathed into it by the hospital in question, see our editorial, June 15).


SB 492 opposition still includes the California Medical Association, California Neurology Society,  and the California Society of Physical Medicine and Rehabilitation, and numerous others. What it does not include is a faction of ophthalmologists whose practices are intertwined in terms of referrals with optometrists. Many of these ophthalmologists are opposed but won't speak out -- it's their  way of straddling the issue and walking down the middle of the road.

AB 1805 (Skinner & Pan): supporting Medi-Cal; SB 1215 (Hernandez): this one bites the dust.

Now that the State Budget has in effect told Medi-Cal patients to wander off and die quietly someplace, the next step is to push for passage of AB 1805 (Skinner and Pan). This bill aims to restore the 10% cut that was put into effect with the State Budget Act of 2011. It is this 10% cut that the State Budget that just passed this past Sunday could have restored. If AB 1805 passes it still risks veto by the Governor. In fact, AB 1805 isn't going anywhere very fast since it is as of this writing being held, some would say smothered, in Assembly Appropriations.


On the other hand, we're glad to report that SB 1215 (Hernandez) took its final dive for this year when it failed to clear the Senate Business and Professions Committee. One of the principal purposes of this bill was to eliminate the exception for in-office referrals for selected specific services such as advanced imaging, radiation therapy, and even physical therapy, in other words, as mean spirited a bill as one could envision.


The Skinner-Pan bill needs help because it is on a collision course with the newly accepted State Budget which went out of its way do kick the Medi-Cal patient in the butt by denying access to services. In support of this bill is the California Medical Association, the California Neurology Society, the Union of American Physicians and Dentists, and most organized professional medical groups.


Individual letters to your Assembly representatives and State Senators are needed to assist in the passage of AB 1805 and to try to turn aside the anticipated gubernatorial veto.

MED-CAL PATIENTS SNUBBED BY STATE BUDGET

The 10 percent pay cut for reimbursement for providing medical care to Medi-Cal patients was not restored by the state budget that was accepted this past Sunday. Reimbursement for California's Medicaid patients remains among the lowest in the United States.  Although the budget did not make the cut retroactive, it's bad enough as it is -- patients on Medi-Cal often cannot get care. Restoration of the 10 percent cut would have alleviated but not cured this problem. So why would the Governor leave his Medi-Cal constituency in the lurch?


This writer spoke to the Governor about this problem during his first years as Governor when he was often known as "Gov. Moonbeam." This writer can attest that Brown was never a moonbeamer, maybe a little tilted towards idealism, but always realistic and politically savvy.


I asked him then about the  pro and con arguments for supporting increased Medi-Cal benefits.  He said the pro argument was that the Medi-Cal population might need the support and even benefit from it. But to do it money would have to be poured into Medi-Cal that was also desired and equally needed by other programs, programs more popular with the voters, and more vital to the interests of tax-payers. Brown wryly pointed out that if he supported increased funding for Medi-Cal, he'd probably not hear a word of appreciation from the Medi-Cal patients but he sure as heck would hear about it from other agencies that got stiffed and miffed.


Needless to say, the Medi-Cal raise didn't happen then, just as it didn't happen now. This time, however, there is a consolation prize:  the budget now includes $41.3 million for technical assistance to Medi-Cal providers that will help set up electronic health records pursuant to the federal Electronic Health Records incentive program.  $3.75 million will come from state funds, 37.5 million from matching federal funds. Not a bad deal for the techies!


When it comes to governing, nobody holds a candle to our Gov. Brown.

DRGs and HENRY MAYO NEWHALL HOSPITAL: was there malfeasance by the hospital's Board of Directions or the Medical Executive Committee?

THE EFFECT OF Diagnostic Related Groups (DRGs) and Nurse Practitioners (NPs) on hospital policy and Economic Credentials and Corporate Income


When the DRGs were originally thrust upon the unwitting medical profession in 1982, the purpose was to determine how much Medicare would be obliged to pay hospitals for "products" where "products" became the new word for services, e.g., an appendectomy became a "product" instead of a service or an operation. Application of DRGs has since widened and may be used for non-Medicare patients. Some healthcare pundits find DRGs effective for controlling Medicare costs and hospital costs in particular. An early challenge occurred when Hillary Clinton's father was admitted to hospital and was allowed more than the DRG-allotted time for his hospital stay and more advanced diagnostic studies than the DRGs recommended. Most physicians, this one among them, favored the doctors' decisions in favor of the patient and the hospital's willingness to set the DRGs aside.


Now enters Henry Mayo Newhall Hospital in Santa Clarita which has just determined that Nurse Practitioners (NPs) can have admitting privileges. We will discuss how the two  problems have common ground, namely, cost and reimbursement control. Keep in mind that only one year ago a California Senate Bill (SB 491) to give advanced recognition to NPs failed passage.


Here's the story according to our correspondent, Gene Uzawa Dorio, MD, from his guest commentaries in the SCV Beacon. Doctor Dorio is at the time of this writing, to the best of my knowledge, a member of the hospital's Medical Executive Committee (MEC).


For the last three years, the hospital administration has sought to allow NPs to practice at the hospital. The NPs will be employees of the hospital. That means that the hospital  administration will be able to influence admission and discharge decisions. That there is a likely financial relationship is obvious, for instance, it's why physicians are not allowed to own pharmacies and refer their patients to them. When the effect of the DRGs became of concern to the hospital management, statistics were developed. If a heart attack patient with a DRG of 4 days stayed more than 4 days in the hospital then the additional days were an extra "cost" to the hospital and would not be reimbursed under the DRGs. Doctors whose patients stayed longer than the DRG designations became a liability. The name of the game was how to control these doctors. Doctor Dorio said in his piece on the subject that "every primary care admitting physician was given a total dollar amount ... claiming now the MD was responsible for this 'lost' money." So how did the hospital's BOD bring about change?


The hospital had received an NP application for practice privileges which the MEC rejected when it was determined by the MEC that the hospital had withheld information which Dr. Dorio's editorial asserted showed "the candidate was not qualified to care for hospitalized patients." In any case, the MEC decision not to accept the NP's application was set aside by the BOD which granted practice privileges to the NP in question. That is how matters stand now. While broad-based legislation to grant practice privileges may have failed, one hospital, on its own, has managed to install an NP in precisely the role that the hospital's own MEC found incompatible with the applicant's education and training. Stay tuned: we don't think this issue is finished.


Editor's confession:  I have  testified in Congress on the issue of economic credentials for physicians, see references below. My opinion in the Henry Mayo Newhall Hospital case is that the hospital's BOD wants to wrest control over medical decisions and their economic impact on the hospital from the Medical Executive Committee in particular and from the physicians in general.


References


"Why is Private Practice on the Way to Obsolescence?" (www.politicsofhealthcare.com, 6/10/13)


"Medical Red-Lining, Economic Credentials for Physicians," San Francisco Examiner, 1/12/96


The Congressional Record,  Vol.  144,  # 118, with  comments by former Representative Tom Campbell, R-CA, 09/09/98

VA SECRETARY SHINSEKI TAKES THE HIT OVER VETERANS ADMINISTRATION FIASCO

Dateline, Washington, DC, 5/30/14 -- Our posting of 21 May 2014 in www.politicsofhealthcare.com stated that General Shinseki was "being prepared and prepped to take a fall." It can now be stated with reasonable legal certainty that the foreplay is over. The General has resigned. He has been sliced and diced, his head served on a platter to an irate public, while other problems with veterans outside the VA  system continue to be buried in the avalanche of scandal.


Among these items is  how a forensic panel reportedly altered the diagnosis of post-traumatic stress disorder (PTSD) for 14 formerly active duty soldiers in order to rescind their expensive PTSD  retirement benefits. In our previous release on this subject (see reference below) we told how this diagnosis and its attendant retirement benefits were predicted to cost the government from $400,000 to possibly over one million dollars. So, in a process akin to Utilization Review for injured workers in California, akin also to the Independent Medical Review process in California, officials who did not interview or examine the patients were reported to have altered the medical diagnoses from PTSD to "anxiety disorder" or something else less expensive in terms of retirement benefits to satisfy fiscal demands (see Army's denial in NBC story cited below under references).  Our opinion is that the PTSD benefits for these soldiers were sacrificed just as the veterans who were denied care were disenfranchised.  Now that  Shinseki has taken the hit, we can expect  more self-serving outrage and maybe even prompt house cleaning at the VA. There is still time to see whether or not there are  PTSD retirement benefits to other injured veterans at Madigan and elsewhere that should be restored lest they lose out in a smokescreen of retaliation against a bureaucrat who turned out to be out of his métier as the VA Secretary.


References


"Army releases findings of Madigan PTSD investigation," Rebecca Ruiz, NBC News, 3/15/13


"What we don't want is people making decisions based on money instead of care of troops," comment by Rep. Norman Dicks, The Weinmann Report, www.politicsofhealthcare.com, 2/26/12

DRUG TESTING FOR LAWYERS AND PHARMACEUTICAL EXECUTIVES

District Attorney Tony Rackauckas representing Orange County and County Counsel Orry Korb from Santa Clara County have filed a consumer protection lawsuit against five opioid manufacturers. The accusation is that the five companies conducted a more than decade-long marketing campaign to mislead doctors about the risk of long-term opioid management. The named defendants are Purdue Pharma, Teva Pharmaceutical Industries Cephalon, Janssen Pharmaceutical, Endo Health Solutions, and Actavis. The lawsuit also names the American Pain Foundation, the American Academy of Pain Medicine, and the American Geriatric Society.

The lawsuit asserts that "opiod makers were not the first to mask their deceptive marketing efforts in purported science. The tobacco industry also used key opinion leaders in its effort to persuade the public and regulators that tobacco use was not addictive or dangerous."

We owe this information to Tom Lynch whose editorial, "Another Day, Another Battle in the War on Over-Prescribing," was published as a column by WorkCompCentral on 5/28/14.

Our interest is how this matter now dovetails with the Malpractice Initiative that the trial lawyers are expected to qualify for the November ballot in California in an effort to repeal the MICRA reform instituted by Gov. Brown during his first administration. The Initiative is aimed at drug-testing for physicians and doesn't mention that annual insurance premiums for a family of four may be increased by as much as $1,000.

Although the trial lawyers espouse drug testing for physicians, pilots, and others, they do not include themselves.

We now recommend that they find a way to include drug testing not only for themselves but also for pharmaceutical companies, their executives, and all of their employees including sales department personnel.

Just call it The Full Employment Drug Testing Act (FEDTA).

Late Flash: the trial lawyers' initiative to increase malpractice awards for themselves has been designated Proposition 46 while the campaign against it, which we support, will be called the No on 46 Campaign.

Additional References

"When Should Lawyers be Drug Tested?" by Dr. Robert Weinmann, www.workcompcentral.com, 4/28/14

"Random Drug Testing for Lawyers," The Weinmann Report (www.politicsofhealthcare.com, 4/24/14)

"California's Ballot initiative will mandate random drug testing ONLY for doctors (why not attorneys?)," by Rehan Sheikh, facebook.com/PhysiciansForFairness, {https://www.facebook.com/PhysiciansForFairness}, twitter.com?Voice_MD {https://twitter.com/Voice_MD} 5/20/14


 

WE ARE ALL VETERANS: COMMENTS ON THE CURRENT VETERANS' ADMINISTRATION FIASCO

WE ARE ALL VETERANS: will the same dismal outlook overtake our military veterans in the VA system as it did the Post-Traumatic Stress Disorder victims at Madigan General Hospital (see our blog from Sunday, February 26, 2012)?

The latest ringing quote from President Obama, "I  will not stand for it!" is vaguely reminiscent of other outstanding verbalizations from the president, e.g, when he said that "I will not let any bureaucrat stand in the way of the care that you need," then stalwartly pushed ahead with the IPAB (Independent Payment Advisory Board) woven deftly into the ACA (Affordable Care Act) in Section 10320 (see our previous posts on this issue wherein we tell how the IPAB is designed to limit access to care without pesky Congressional oversight).

The latest medical scandal concerns the Veterans Administration (VA). On the rack at the moment is former General Ric Shinseki. The issue is to what extent the VA may have cooked the appointment books such that 40 veteran patient-deaths are attributable to delayed medical care at the Phoenix VA.

Speaking out in evident ire, President Obama said "it is dishonorable ... it is disgraceful." As a result 26 VA facilities are now under investigation. While Shinseki  promises to get to the bottom of the matter, the press noticed he wasn't standing next to President Obama during the president's  press conference (speculation is the General was in a roadside foxhole  as would be any sensible soldier while a hostile straffing mission worked the skies above).

"If there is misconduct it will be punished," the president declared, ringingly adding, "I will not stand for it!" Meanwhile, Ron Nabors will supervise review of the VA and the expected IG Report which will tell us what's to be done and whether or not Shinseki still has a job. Obama, meanwhile, declares "we all know it takes too long for veterans to get care" while simultaneously inserting commens that the problem was also true for previous administrations regardless of party lineage. Trouble is these remarks come from the same source that first promised that no bureaucrat would interfere with the care we need, then said that we could keep our doctors, and finally for strike three that we could keep our current insurance if that's what we wanted to do.

"What we don't want is people making ... decisions based on money instead of care of the troops!" So said Representative Norman Dicks, D-Belfair.  The issue then was lifetime benefits for soldiers diagnosed with PTSD (post-traumatic stress disorder). 14 soldiers with this diagnosis were reportedly costing the government from $400,000 to $1.5 million in lifetime benefits. To save this money, a forensic psychiatry team changed the diagnosis.  President Obama needs to apply the same language he used re the Veterans Administration, in short, it's time to ask if bureaucrats in the Madigan decision "cooked the books."

This writer was never satisfied with the explanations put forward at the time. Neither are we satisfied with the way in which the VA situation is being investigated -- it looks like Gen. Shinseki is being prepared and prepped to take a fall. The immediate reasonable solution is to assign more physicians to each of the 26 VA facilities now under review. This adjustment should start in Phoenix. The Madigan  situation should also be reviewed with possible restoration of benefits that remain denied.


The overriding issue is whether or not the entire country is being prepared for reduced access to  care, what Philip Klein referred to as "access shock." The issue is to what extent "choice" will be sacrificed by the ordinary citizen so that insurance companies can enhance profits by reducing costs by such methods as simply offering less in terms of physician access and access to diagnostic and treatment facilities. It's called scrimping and skimming.

Now we find out that scrimping and skimming in the Veterans Administration may have led to the death of former troops just as it is expected that the IPAB portion of the ACA will lead to derelict care, diminished levels of treatment, and even to the death of patients mired in a bureucracy of healthcare mandates that has been a disappointment from rollout despite constant revisions.

"I will not stand for it," he said? No, WE will not stand for it, or better not, lest we hoist ourselves on the same rope we used to strangle PTSD care at Madigan and VA care everywhere. We are all veterans of unwise decisions that have converted medicine into a succession of programs beneficial mostly to insurance companies and like-minded corporate interests.

The time has come for all of us to shout "I will not stand for it!"

Disclaimer

The writer is an Army veteran, Captain, USAMC (U.S. Army Medical Corps), and admits to bias on the part of the veterans.

References

The Weinmann Report (www.politicsofhealthcare.com, 2/26/12

"Head of Madigan removed from command amidst PTSD probe," Seattle Times, 2/20/12,  by Hal Bernton

"Army insists doctors at Madigan aren't discouraged from diagnosing PTSD," The News Tribune, 2/10/12,  by Adam Ashtone

"Rationing comes home to roost in the form of denial of care," www.politicsofhealthcare.com, 2/17/12, and www.workcompcentral.com, 2/24/12

"President Obama's oblique references to healthcare," www.politicsofhealthcare.com, 2/27/12

"President Obama apologizes and promises to interfere with care you don't need," www.politicsofhealthcare.com, 11/08/13

"Obamacare insurer says Americans have to break the 'choice' habit," www.washingtonexaminer.com/article/2548386, 5/13/14
 

DO DOCTORS EXPIRE IN 10 YEARS?

"Do doctors expire in 10 years" is the title of the lead article in AAPS news from the Association of American Physicians and Surgeons, Vol. 70, No. 5, May 2014. Our readers may enjoy comparing this piece with items from The Weinmann Report, www.politicsofhealthcare.com, "How Physicians Eat their Young," 12 Feb 2014 and "Money and Medicine," 21 July 2012.

The subject is recertification and reveals how boards, associations, and other organizations may use Maintenance of Certification (MOC) to enrich themselves and their organizational coffers at the expense of their own members. The AAPS poses this theoretical question: if "one day a highly trained, experienced physician may be board certified -- and the next day, after examination results are revealed or a deadline for MOC compliance passes, he may be decertified and unemployable. In that one day, could he have become demented, or fallen behind in keeping up with this field?"

The article points out that "resolutions against MOC have been enacted recently by the American Medical Association and the state medical societies of New Jersey, Michigan, Ohio, Oklahoma, New York, and North Carolina."

In the same issue, Larry Huntoon, MD, PhD, points out that the American Academy  of Neurology (AAN) was to feature an MOC International Session but did not feel required to file a conflict-of-interest disclosure from Lois Margaret Nora, MD, CEO of ABMS. In 2012 Nora earned about $330,000 in compensation from ABMS and associated organizations according to the ABMS form 990."

AAN reportedly told AAPS that no such disclosure was necessary because AAN did not give CME credits for attendance at this session.

Once again we see an assault on physician autonomy, this time from within, from persons who benefit financially by imposing MOC requirements on hapless physicians whose evolving practices may not meet the confinements of MOC predators.

Additional References

Journal of American Physicians and Dentists, V. 18, # 3, Fall, 2013, "Maintenance of Certification (MOC) : the elite Agenda for Medicine," Christman, Kenneth, "the elite medical establishment correctly foresaw that there as a huge treasure in the medical certification  business").

Journal of American Physicians and Dentists, V. 16, #2, Summer, 2011, "Board Certification -- a Malignant Growth," Dubravic, Martin, MD.

OPPOSE AB 1886 (EGGMAN) UNLESS AMENDED

AB 1886 (Eggman) cleared committee today by 9 to 4. Organizations that should have spotted it as a dangerous bill were silent except for the Union of American Physicians and Dentists and the California Medical Association which were opposed. The UAPD states that "this bill would remove the requirement that specified information be posted on the Internet for a period of 10 years thereby requiring that information to be posted indefinitely." For doctors who've committed minor infractions such as being late with reporting requirements this legislation could be a life sentence, e.g., MPNs may very well reject applications of doctors who are listed even for such minor offenses as late reporting. Such doctors run the risk of  lifetime bans. We doubt that the proponents of the bill intend this consequence -- but there it is.

Under current law according to the  Medical Practice Act the Medical Board of California is obliged to post certain information such as malpractice awards on the Internet for 10 years. Once this requirement is gone, such information could be posted indefinitely, effectively a life sentence. The bill should be opposed unless amended.  

Is SB 1429 (Steinberg) an aborted last ditch effort to settle medical malpractice liability ...

... or a possible vehicle for Gut and Amend at the end of the scheduled legislative session?    

In a nutshell, our opinion as of 28 April 2014 is that SB 1429 is almost dead in the water -- that's why we didn't discuss it in our previous article (RANDOM DRUG TESTING FOR LAWYERS: WHEN SHOULD LAWYERS BE DRUG TESTED?, 4/24/14)  about involuntary drug testing for lawyers. As matters stand now, the trial lawyers have committed their efforts to the initiative which has as its primary goal more money for lawyers who successfully prosecute malpractice cases. The initiative  would also impose random drug testing for doctors and require doctors to use a statewide data base when prescribing narcotic medication.

Steinberg's bill is less ambitious. His idea is to gather the parties together to work out a strategy that would be mutually satisfactory. Reasonable, you say? Not exactly because the lawyers aren't looking for a compromise on nickels and dimes and the doctors are dismayed about how much they already pay for malpractice insurance. Hence, a small increase in settlements as might be expected if non-economic damages were increased slightly or indexed for inflation doesn't interest the lawyers who, by the way, rejected a cost-of-living adjustment several years ago. Any increase in malpractice premiums doesn't sit well with the doctors whose incomes have been eroded over the last few years as managed care plans, HMOs, PPOs, and Covered California take over.

As for the statewide data base called CURES, just try to use it. Usually their phones if they have more than one go unanswered or the caller does not get the information requested. We've been advised that the database is underfunded and can't get the coverage it needs. So one of the first services to cut was knowledgeable persons answering phones.

It looks like both sides have stepped away from SB 1429, but, in theory, that could change under the proper circumstances. That would imply mutual  cooperation which at the moment does not appear likely in California's  House of Cards. SB 1429 lurks in the corner, a candidate for Gut and Amend.

Late Flash: the trial lawyers' initiative has now been designated Proposition 46 while the campaign against it will be known as the No on 46 Campaign. We will support No on 46 and advise our readers to do the same.