WHAT HAPPENS WHEN CLINICIANS DON'T TRUST REGULATORS?

USA Today published a piece on whether or not physicians should be forced to check a prescription database before writing opioid prescriptions. In Massachusetts Governor Charlie Baker proposed measures to obstruct physicians from prescribing these medications. Among the irresponsible provisions recommended for this purpose, one was to limit opioid prescriptions to 72 hours.  In all but the most emergent situations this rule would prevent patients from getting their prescriptions for more than three-days. 

Meanwhile, in California, Senator Lara submitted legislation, SB 482, that would require physicians to rely on a statewide data base known as CURES that does not yet exist before prescribing Schedule II or III medications. Failure to do so would make the physician subject to discipline by the state's medical board. This bill is currently on hold and awaits the 2016 legislative season that begins in January.  In the meantime, Gov. Brown signed off on AB 679 (Allen) which was chaptered on 11 October 2015 and extends the deadline for mandatory enrollment in the CURES system from 1/01/16 to 7/01/16. 

California also has Utilization Review (UR) obligations that primary treating physicians (PTPs) are obliged to accept. It works like this: physicians may prescribe diagnostic studies,  treatment programs, even medications, including non-opioid, or ask for consultations. Instead of complying with same, the patient is hung out to dry by the insurance company which says it is obliged to submit all such requests to UR before the prescription or treatment can be "authorized." Never mind that the doctors belong to MPNs or Medical Provider Networks and have already been approved by the insurance company. In many cases patients are kept in pain because the treatment they're seeking -- and that has been properly prescribed -- is being withheld by the insurance company.

There is an appeal process. If UR doesn't reverse its denial of care in timely fashion based upon an initial complaint by the treating doctor, the decision is passed over to an Independent Medical Review agency which may employ doctors who are out-of-state and whose names are concealed by the insurance companies from the patient and the actual treating doctor. Statistics show that the vast majority of cases denied by UR get denied again by IMR.

Under these circumstances, many physicians including the most prestigious simply refuse to accept industrial or workers comp cases -- injured workers who get injured on the job expect that they'll get authorized treatment from their industrial carriers. Strike one occurs when their access to treatment is delayed. Strike two occurs when UR denies care that had previously only been delayed. Strike three occurs when IMR goes along with UR and gangs up to deny care again. There's a 4th strike that occurs when the likes of Governor Baker, Governor Brown, and State Senator Lara help insurance companies and corporate interests shirk their obligations to provide timely medical and surgical care. 

Stanford Hospital and Clinics knows what to do. In a letter to a California physician, July 24, 2014, Stanford refused to provide neurosurgery consultation to an injured worker. The letter from Stanford gave the following reason: "We don't take WC cases."

NO, THE GOVERNOR DID NOT AVOID A COLLISION IN HEALTH CARE POLICY

Governor Brown in his veto message of AB 1542 (Mathis & Cooley) said "this bill undermines the Division of Workers Compensation's authority ... when it determines eligible medical specialties ... that power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so."

It turns out that the Governor knowingly acted on an incorrect opinion from the Department of Industrial Relations (DIR) and from Christine Baker in particular. It seemed lost on the Governor that AB 1542 was supported by the California Psychology Association and by the Board of Psychology. It was well known to Governor Brown, or should have been, that the Board of Psychology does not formally recognize or enfranchise subspecialties. However, the Board of Psychology does recognize the American Psychological Association (APA) of which it is a member. The subspecialty of clinical neuropsycholgy is in fact recognized by the the APA, a fact that the Governor, in his zeal to support Christine Baker, ignored. By his veto  Governor Brown evidently felt he was supporting "the Division of Workers Compensation's authority." Regrettably, the reverse is true now that NeuropsychologyQMEs have been relegated to the basement of medical and psychological evaluation and treatment for injured workers with traumatic brain injuries (TBIs). These injured workers will no longer have the direct access to NeuropsychQME evaluation as they have had for the last 22 years. Employers will find that assigning TBI patients to appropriate return-to-duty status has just been made more difficult. Trades where head injuries are more common, e.g., construction, working at heights, or around heavy equipment, have just been made more risk laden by Governor Brown's arbitrary veto. 

By contrast Governor Brown signed AB 2127 (Cooley) last year so that high school athletes who sustain TBIs can get direct access to health care providers. These health care providers are supposed to be trained to recognize and evaluate concussions and TBIs. It looks like Gov. Brown feels that injured workers do not need the same access to first level responders as do high school athletes who get hurt playing football, or soccer. 

We understand that the underpinnings of the Governor's veto was his desire to support DIR Christine Baker and the Division of Workers Comp as seen through her eyes. What's too bad is that in this effort the injured workers who do construction and other risky jobs have been short-changed, actually, to put it bluntly, they've been torpedoed. 

To correct this egregious mistake, it would help if the Board of Psychology changed its policy to provide formal recognition to NeuropsychQMEs and if Mathis, Cooley, and others would reintroduce a revised version of AB 1542 in 2016.

AB 1542 AND AB 2127 -- WILL THE GOVERNOR AVOID A COLLISION IN HEALTHCARE POLICY?

Governor Brown's healthcare policies are now colliding. In 2014 Governor Brown signed AB 2127 (Cooley) into law. As a result of this decision the California Education Code now requires that high school athletes who have sustained a cerebral concussion, even a mild one, must be evaluated by someone trained to make this evaluation before the athlete can return to play. The idea is to reduce the consequences of traumatic brain injury (TBI) which may follow a cerebral concussion or be delayed until a series of such concussions have occurred. The injured athlete is now required to get written clearance from a licensed health care provider trained in the management of concussions. This legislation is a step in the direction of protecting high school athletes.

Governor Brown now has a chance to sign legislation, AB 1542 (Mathis & Cooley),  that would similarly help injured workers. We have previously recommended that he sign this bill. Nonetheless, the bill remains subject to possible veto. Construction workers, roofers, persons who work at heights, are particularly prone to the type of injury that may cause cerebral concussion and lead to post-concussion syndrome secondary to TBI. California's injured workers deserve protection that is at least as cognizant of their well being as AB 2127 tries to be for high school athletes. That is in part why we ask again that Gov. Brown sign AB 1542, just as he signed AB 2127. In the case of the injured worker trained specialists in the form of NeuropsychQMEs are available and have been for 22 years. It makes no sense to cut this specialty out of the loop. They already are the "licensed health care provider" trained in the management of concussion that is required by law and by common sense. The injured worker who has sustained TBI should have this level of evaluation available.

AB 1542 also looks out for the employer because it provides a sound scientific basis whereby reassignment to modified work or to one's usual and customary job can be made with reasonable medical judgment. It is analogous to deciding whether or not injured athletes can return to play.
In the case of a TBI expertise is also needed for treatment decisions.

A veto of AB 1542 after having signed AB 2127 sends mixed messages on health care. Such a decision would relegate injured workers to a level of healthcare protection below that of injured high school athletes. We do not believe that Gov. Brown wants or needs such a healthcare policy collision.

AB 1542 (Mathis and Cooley): DRAMA IN THE CAPITOL

Now that AB 1542 (Mathis and Cooley) has passed the Senate, 39 to 0, having already passed the Assembly, 79 to 0, we have a unique situation wherein the Governor is being pressured by the Department of Industrial Relations (DIR)  to veto a bill that has unanimous bipartisan support. The reason given by DIR Director Christine Baker for public consumption is that "the California  Board of Psychology does not recognize neurospsychology as a subspecialty in psychology." 

On the other hand, the same California Board of Psychology accepts the American Psychological Association's (APA)  recognition of specialists in neuropsychology. In short, the APA recognizes neuropsychologists. Given these facts, it is difficult to fathom why DIR should object to AB 1542 unless there are other reasons we don't yet know about. What we are left with is that a specialty with national  recognition is being denied recognition in California. 

Medical specialists involved in the diagnosis and treatment of traumatic brain injury (TBI) also recognize the specialty role provided by the neuropsychology specialists, for instance, the American Academy of Neurology has published on this matter since 1966. 

In my personal letter to the Governor, I indicated that the DIR position, if the Governor bows to it, is likely to increase litigation since the current easy access to neuropsyche Qualified Medical Evaluations will be impeded. It will then be up to the applicants' lawyers to fight tooth-and-nail for neuropsyche evaluations for their TBI clients and for the defense lawyers to forestall successful litigation by the applicants' lawyers. Lawyers who fail to support their applicants' cases to the hilt may find themselves on the wrong side of a malpractice suit.

The same goes for the physicians who treat and evaluate injured workers. Failure to obtain neuropsyche assessment may be seen as a dereliction of duty by the physician, enough so that the physicians themselves become subject to potential liability or malpractice claims.

Disallowing recognition of neuropsychologists harms brain-injured workers and impairs the ability of the workers compensation system to take care of injured workers with TBI. Employers are also harmed when TBI patients are not properly assessed with reference to return to work status or feasibility for continued employment. 

AB 1542 preserves access of injured workers to neuropsychological expertise. I believe that should be enough reason for the Governor to sign AB 1542 into law.

References

"Reasons to Keep Neuropsychology as a Specialization in QMEs," Hannah Pence, MS, CRP, 09/01/2015;

"Three Comp Bills Left for Final Week of Session," workcompcentral, 09/04/2015;

"Does Somebody Want to Sabotage Neuropsychological Evaluations," workcompcentral, 5/20/2015;

"Neuropsychology Medical-Legal Evaluations (Neuropsyche QMEs): Does Somebody Want to Sabotage Neuropsychological Evaluations," The Weinmann Report, www.politicsofhealthcare.com, 4/25/2015;

"Is Mandatory Malpractice Ordered to Begin on Tuesday, 1 September 2015," The Weinmann Report, www.politicsofhealthcare.com, 8/27/2015;

"Neuropsychology -- The How and Why," James R. Cole, PhD, QME, California Society of Industrial Medicine and Surgery," 8/18/2015;

Analysis from Assembly Committee on Appropriations, 7/08/2015, Jimmy Gomez, Chair, prepared by Lisa Murawski. 

IS MANDATORY MALPRACTICE ORDERED TO BEGIN ON TUESDAY, 1 SEPTEMBER 2015?

According to workcompcentral's newsletter, 2015-08-27, California's Division of Workers Compensation has ordered that as of 1 September 2015 "clinical neuropsychology will no longer be a recognized medical specialty." This decision by DWC was approved by the Office of Administrative Law on 8/12/15. The ruling means that "the elimination of the specialty designation for clinical neuropsychology" goes into effect on September 1st. 

Clinicians, particularly psychologists with specialized training in neuropsychology, will at first blush be astonished that the authority of the DWC can be used to ease the way for medical malpractice. On second look clinicians have observed that the workers comp system is rigged against fair hearings for injured workers, for instance, nearly 90% of Utilization Review (UR) denials are upheld by anonymous Independent Medical Reviewers (IMRs). 

Keep in mind that MPNs (Medical Provider Networks) pre-select their own clinicians and then step aside as disproportionate numbers of their own clients get denied treatment by the mandatory UR panels created by SB 863 and which usually have links to insurance companies. The MPNs step aside when IMRs such as Maximus slavishly confirm the treatment denials. 

In the case of neuropsychology, we know that psychologists with special training in traumatic brain injury (TBI) are uniquely qualified to make diagnostic and treatment decisions about TBI. In fact, Assemblyman Devon Mathis, R-Visalia, co-author of AB 1542 along with Assemblyman Ken Cooley, D-Rancho Cordova, testified in favor of AB 1542 before the Senate
Committee on Labor and Industrial Relations to the effect that while general psychologists deal with mental injuries neuropsychologists are specially educated and trained about TBI.

Assemblyman Mathis' credentials include a Purple Heart for TBI sustained during an IED attack in Iraq in 2008. The point of Mathis' testimony is that the best recommendations for diagnosis and treatment for him and for injured workers who sustain TBI on-the -job is through adequate diagnosis and work-up that requires TBI expertise. Anything else, in this writer's opinion, amounts to inferior treatment. It can now be argued with reasonable medical probability that DWC has in this case imposed a restriction that arguably can be stated to suborn malpractice by advocating and in fact eliminating NeuropsycheQME as a separate and distinct clinical specialty. 

That is why it's obligatory to make sure that AB 1542 which would protect neurospsyche as a designated specialty makes it through the legislature where it's already passed the Assembly 79 to 0 and then persuade the the governor to  sign the bill into law. 

Then we'll need to know whence the misguided direction arose that convinced Director Christine Baker to file a letter in support of eliminating neurospyche as a specialty and to combine it with the more general classification of psychology absent recognition of specialized TBI education and training. One will also need to ask if there is a need for re-education and restructuring within DWC. 

This author previously addressed this issue in an editorial reprinted by workcompcentral, 2015-05-20, "Does Somebody Want to Sabotage Neuropsychological Evaluations?" This issue deserves continuing investigation and reporting. 

References

Workcompcentral, "QME Rules Take Effect Tuesday," 2015-08-27

The Weinmann Report, www.politicsofhealthcare.com, 4/24/2015

CSIMS, "Comments on DIR Director Christine Baker's Opposition to AB 1542, 8/12/2015

Department of Industrial Relations, letter by DIR Baker, 7/29/2015

Voters Injured at Work, Support letter for AB 1542, Jesse Ceniceros, VIAW president

Brain Injury Association, Support letter for AB 1542, 8/03/2015

California Neurology Society, Support letter, Steve Cattolica, Legislative Advocate, 6/04/15

Maintenance of Certification (MOC) and the IRS: where money and power meet

We've heard a lot lately about MOC and its finances: in 2012 the president and CEO of the American Board of Internal Medicine (ABIM) pulled down $628,952 and of that amount $465,687 was "base compensation" while $44,742 was "bonus and incentive compensation" These figures come from line (i) of Part II,  Schedule J, re "officers, directors, trustees, key employees and highest compensated cmployees" as listed in ABIM's IRS 990 report, 2012. 

On the same line in Schedule J the president and CEO is listed as having received $83,654 in "retirement and other deferred compensation." We aren't told what type of compensation format comprised this prize, e.g., was it "defined benefit," 401-K, or something else?

To that was added $34,869 in "non-taxable benefits."

The total for Line (i) for 2012 was $628,952.

Then comes Line (ii): base compensation was $155,229. "Bonus and incentive compensation" was $14,914. "Retirement and other deferred compensation" was $27,885. "Non-taxable benefits" was $11,623. The total for line (ii) was $209,651.

The total for lines (i) and (ii) is $838,603. Not bad, not bad at all for an internist!

Plus there are 15 others at or near or above the $200,000 level. 

Where does this money come from?

One answer is possibly from donors, e.g., in 2012 the ABIM Foundation contributed $245,000. The Joshiah Macy Jr. Foundation contributed $151,632 while the Medical University of South Carolina contributed $62,789.

Another answer is that the majority of the money comes from MOC, testing, courses, and programs put on by non-board independent but nonetheless contingent organizations that charge for course attendance that in many cases contributes to MOC recertification. The point is that MOC in its current format cannot be sustained without MOC fees paid by doctors who submit to the programs as though they were necessary to maintain certification in a country where CME (Continuing Medical Education) is available in all 50 states.

The continuing clamor to set MOC aside in favor of alternative programs such as NBPAS (National Board of Physicians and Surgeons) is growing. It won't be the first time that lust for power and money brought down a financial empire, this time possibly the American Board of Medical Specialties (ABMS) where, not incidentally, the president and CEO took down annual compensation of $779,487 in 2013 (Form 990, Schedule 3, Part II -- Officers, Directors, Trustees, Key Employees, and Highest Compensated Employees). 

In the ABMS case the declared "base compensation" was $681,188 to which was added $12,500 in "bonus and incentive compensation," $71,000 in "deferred compensation," and $14,799 in "non-taxable benefits." The 990 Form doesn't state if the "deferred compensation" is in the form of "defined benefits" or 401-K or other. 

Finally, our observation that some Form 990s don't include all of the officers, directors, trustees, key employees, and highest compensated employees is quizzical. Why not? 

MEDICARE VERSUS THE INDEPENDENT PAYMENT ADVISORY BOARD (IPAB)

Here is how it works: The Affordable Care Act (ACA) grants coverage to about 15 million persons not previously covered by what passed for health care coverage before passage of the ACA. Trouble is that Covered California and other ACA derived plans have now raised their premiums to cover the influx. But the premiums can't be raised enough to cover this influx. It has been determined that a better way  is to reduce utilization to keep costs below or equal to the pre-ACA expenditure. This method is a form of rationing with a special dagger aimed at the hearts of the elderly. It is called the Independent Payment Advisory Board (IPAB). 

Here's a pre-IPAB example: programs that provide vision care advise patients that refraction is not covered by Medicare or by most commercial PPO plans. Refraction is the method by which corrective lenses are prescribed. Medicare and the commercial PPOs determined that refraction isn't a medical procedure after all. Medicare and the involved PPOs conveniently decided that refractive errors requiring prescribed lenses are a result of changing eye-shape and are not because of disease.  Hence, coverage is denied.  

How about something more current than refraction? Let's take a look at what's happening to cardiac pacemakers. The Center for Medicare and Medicaid Services (CMS) has determined that as of 6 July 2015 coverage for cardiac pacemakers will be restricted to patients with "non-reversible symptomatic bradycardia." This decision means that patients with asymptomatic complete heart block would not be covered and that the exclusion will apply even to patients with asymptomatic Mobitz Type II heart block. So far our information is that the American Medical Association (AMA) has not filed a protest. We're now obliged to ask would-be presidents of AMA and contingent state medical associations where they stand on this matter.

We all recall Sarah Palin's barbs about "death panels" for Medicare. Suddenly, it doesn't seem as though she was all that far off the mark, does it?

That's where the Independent Payment Advisory Board (IPAB) comes in -- the IPAB was formed to manage costs that the ACA might run up due to the influx of previously non-covered patients. The IPAB owes its existence to Sections 3403 and 10320 of the ACA. The official job of the IPAB will be to control and cut Medicare spending. The IPAB according to the ACA will be appointed, not elected, and will not be obliged to report to Congress. In effect this technique will remove Congressional  oversight of Medicare spending. Instead,  unelected IPAB members will have this power. The salary for the 15 IPAB members is proposed to be about $165,000 annually -- once again we see there's money enough for bureaucracy but not for patients and citizens. The IPAB is ripe for repeal before it can do damage.

In the second Obama-Romney debate, Gov. Romney asked President Obama who would be appointed to the IPAB. Obama's answer, and I quote same in toto, was "doctors et cetera."
Although the reply was short, it was also wrong. Trouble is neither Romney nor Obama knew it. The fact is that there is nothing in Sections 3403 or 10320  or in the rest of the ACA that requires even one physician to be appointed to the IPAB. While it's likely that an acquiescent physician can be found, the fact is that there is no legal requirement under the ACA to appoint even one physician to the IPAB. The IPAB should be repealed forthwith -- so doing will improve the ACA by removing what to all intents and purposes looks as close to Palin's death-panels as one can get without handing the IPAB a portable gallows. 

MAINTENANCE OF CERTIFICATION (MOC): a rising business opportunity!

Continuation of our Money and Medicine Series

Maintenance of Certification (MOC) has become the latest repository of profitability for physicians and others with an ear to current business practices in America. The idea put forth is that MOC is useful for making sure that physicians keep up to date -- never mind that all 50 states have already imposed mandatory Continuing Medical Education (CME) that requires physicians to take post-graduate courses to maintain licensure. These courses are expensive and often require travel. These programs have generated money for the entrepreneurs who run them. Now the specialty boards want in on the loot. The American Board of Internal Medicine (ABIM) is an example of the extravagance to which these programs may go.

If we study the IRS Form 990 for ABIM for Tax Year 2012, we see that the ABIM president and CEO received base pay of $465,687 to which was added $44,742 in "bonus and incentive compensation ." One may ask with reasonable curiosity why a base pay of nearly one-half million dollars would need another forty-four grand for "incentive compensation." We'll have to put that question to the ABIM board. We may presume with reasonable medical probability that it was not to avoid a "consolation" stipend.

However, that's not all. In addition to the $465,687 for base pay and the $44,742 for "bonus and incentive compensation," the president and CEO was also awarded $83,654 in retirement and other deferred compensation, plus "non-taxable benefits" of $34,869.

The total for this compensation package was $628,952. not bad for not even having to lift a scalpel or a stethoscope! And, yes, we have similar information for other boards, more on the other boards in future issues. In the meantime, know that there were 15 or more persons at ABIM who were compensated $190,000 or more. Impatient scanners of this information may on their own look up Form 990 for each of the specialty boards and for the ABMS itself (American Board of Medical Specialties). In short, ABIM has itself become a rising business prospect.

As for the purported usefulness of MOC, one respondent to this unproved assertion wrote  (viz., blog of Dr. Wes, 5/14/15) that "there is no evidence MOC improves performance ... this is just poor marketing and another ABIM/ABMS fabrication."  The Florida Medical Association (FMA) voted that MOC should not be used as part of the criteria that hospitals use to designate medical staff. More  state medical associations should follow this example. In the meantime, MOC appears overrated as an educational tool and underrated as a money-making machine.

References

"Maintenance of Certification Controversy," Dr. Wes, drwes.blogspot.com, 05/14/15

"Do We Really Need Physician Re-Certification Testing? There has to be a  better way," Manisha Juthani-Mehta, MD, www.psmag.com/health-and-behavior, 4/24/15 (this doctor describes having had to spend $1,720 in 2010 for MOC and $775 for the infectious disease exam, a total of $2,495. She states that the current internal medicine exam costs $1,940. This testing is clearly beyond what is necessary and reasonable; however, it makes doctors jump through hoops while enriching the board and its paid personnel including officers, trustees, and directors). 

"When does a $681,000 salary require additional incentive compensation," The Weinmann Report, www.politicsofhealthcare.com, 04/17/15

"Florida Doctors Fight Back," The Weinmann Report, www.politicsofhealthcare.com, 09/18/14

"Do Doctors Expire in 10 years?" The Weinmannn Report, www.politicsofhealthcare.com, 05/12/14

"Maintenance of Certification," JAPS, V. 18, # 3, Fall 2013, by Christman, K.

"Board certification - a malignant growth," JAPS, V. 16, # 2, by Dubravic, M.

"Disillusionment invades medical practice," The Weinmann Report, www.politicsofhealthcare.com, 02/22/14

"How physicians eat their young," The Weinmann Report, www.politicsofhealthcare.com, 02/12/14

"Money and Medicine," The Weinmann Report, www.politicsofhealthcare.com, 07/21/12

NEUROPSYCHOLOGY MEDICAL-LEGAL EVALUATIONS (Neuropsyche QMEs): Does someone want to sabotage neuropsychological evaluations?

Assembly Bill 1542 (Mathis and Cooley)

Seemingly erudite and arcane, the question of when to use Neuropsychological QMEs as opposed to Psychology QMEs is not only crucial to industrial medicine and workers compensation, but also  to Medical Provider Networks (MPNs) and Managed Care everywhere (especially to Health Maintenance Organizations or HMOs). We'll tell our readers up front that this publication supports AB 1542. The rest of this article explains why and states some likely consequences of non-support.

Neurospsyche QMEs evaluate brain-injured patients with discrete neurocognitive techniques to make decisions about future medical needs and eligibility for employment. These techniques are separate and distinct from neurological tools such as EEG, EMG, or MRI scanning. The tests neuropsyches use are different from the techniques used by general psychologists who, although well versed in general psychology, are not as highly versed in the evaluation of specific traumatic brain injury as are the neuropsychologists who assess whetheoor not particular brain-damaged workers will be able to return to their usual and customary jobs, or, for that matter, to any job at all.

These evaluations are also critical for employers and for insurance companies. The insurance companies are obliged to cover future medical costs. Wrongful evaluations can result in incorrect job assignments, worsening impairment or disability, generation of useless medical expense, and, for employers, to further impairment of production and additional on-site work injuries.

The fact is that Clinical Neuropsychologists as a sub-specialty within the general framework of psychology has been accepted as such for over 20 years. All the same, the Division of Workers' Compensation (DWC) wants to drop the Neuropsyche QME sub-specialty category and treat all psychologists as a single group. Here's the rub: so doing would mean that brain-injured workers could be assessed by general psychologists who would not have had the specialized education and training that their Neuropsyche colleagues have obtained. By analogy, it might be said that so doing would be akin to putting all the MDs into the same group without consideration of specialty so that an injured worker with a broken leg might be evaluated by an obstetrician.

A further fact is that according to DWC in 2013 there were over 2,000 cases of concussion and that in 2014 there were 633 neuropsyche QME panels as opposed to 8,436 general psychology panels.  The reason for this divergence is clear: the general psychology panels focus on general psychological issues, not on the specific issues of traumatic brain injury, rehabilitation, and cognitive retraining.

If the Neuropsyche QME is eliminated, the brain-injured worker will not get the assessment he needs. From the industry perspective, neither will the employer or the insurance company. The likely outcome under this scenario would be wrongful return-to-work work assignments, or no return-to-work assignment when one such could have been made, wrongful deployment of insurance company resources for unindicated services, and, most sadly of all, failure to dispense indicated future medical treatment that could have been properly recommended by the Neuropsyche QME

For these reasons, we advise favorable consideration of AB 1542.

For private doctors not involved in workers comp, we have a warning: elimination of neuropsyche in workers comp could easily be taken up as model by managed care plans everywhere and by government covered entities eager to cut costs even if it means disenfranchising plan participants.

WHEN DOES A $681,000 SALARY REQUIRE "ADDITIONAL INCENTIVE COMPENSATION?" Is there a reasonable argument that ABMS and other board salaries are tied into MOC (Maintenance of Certification)?

According to Form 990 from the IRS for 2013 for the American Board of Medical Specialties (ABMS), Lois Margaret Nora, MD, JD, MBA, president & CEO of the ABMS,  got base compensation of $681,188 plus "bonus and incentive compensation" of $12,500 plus "deferred compensation" of $71,000 plus "nontaxable benefits" of $14,799 for a total of $779,487.

Net assets by contrast, pages 1 and 12 of Form 990 are listed as minus $1,238,805.

Of interest is that Dr. Huntoon in AAPS reported $330,000 in remuneration for Dr. Nora for 2012 (see references below) whereas our copy of Form 990 shows remuneration for 2013 of $779,000 -- if we have actually documented a raise, kudos for Dr. Nora.  All ABMS specialists should look over their organizations' Form 990s as a matter of ordinary due diligence. 

According to Form 990 for the American Board of Pyschiatry and Neurology (ABPN) for 2012, Larry R. Faulkner, MD, president and CEO, was compensated at $560,522 for base compensation plus $260,713 for "retirement and other deferred compensation," $22,356 for "nontaxable benefits" for a total of $ 843,591.

Total revenue for 2012 is listed on page 4 of the form in the amount of $17,122,985 (expenses were $12,389,987). Page 10 of the ABPN document, under "Statement of Functional Expenses," shows "assessments of ABMS" in the amount of $687,884. Page 11 shows end-of-year net assets of $65,083,864.

MAINTENANCE OF CERTIFICATION (MOC)

MOC has become one of the most controversial programs within medical practice with a myriad of organizations willing to take it on and offer their own Continued Medical Education (CME) at prices ranging from bargain-level to exorbitant. The point is that the selling of education has become its own business with ABMS boards devouring their own members as fast as greed allows digestion.

When the American Academy of Neurology (AAN) filed a timid letter in protest to ABPN and asked that MOC Part IV be repealed, that organization got the response of feckless organizations everywhere. Doctor Lois Nora, quoted in NEUROLOGY TODAY, 04/02/15, said with pithy candor, "I don't see us moving on that."

Current AAN president, Tim Pedley, MD, is quoted on page one of AAN News, April 2015, as stating that the MOC Part IV "process is unnecessarily cumbersome" as though a less cumbersome inconvenience would not distress AAN. Meanwhile, in NEUROLOGY TODAY, 04/02/15, Pedley practically apologizes for his support of several hundred disgruntled AAN members and seeks to dissociate AAN from ABPN ("AAN is an independent association with no control over ABPN, the American Board of Medical Specialties, or the MOC rationale and process"). It may eventually turn out that the members no longer need AAN and reconsider paying dues.

Meanwhile,  ABPN's $843,591 salaried president and CEO, Larry Faulkner, MD,  timorously stated in NEUROLOGY TODAY, " ... wiping out part of the requirements (he means MOC Part IV) is not something we at ABPN believe we have the authority to do. The American Board of Medical Specialties sets the standards, and unless they decide to change them, we don't have a choice but to follow them." We disagree. ABPN is not supposed to be anybody's subject or hand-maiden.

MORE TO THE POINT: MONEY

As we pointed out above, the ABPN form 990 IRS document from 2012 lists $687,884 as "assessments of ABMS" which itself showed negative net assets for 2013 in the amount of $1,238,805. Under these circumstances it is reasonable to inquire further to what extent fiscal issues between the specialty boards and ABMS may be inextricably intertwined.

References

"Money and Medicine," The Weinmann Report (www.politicsofhealthcare.com), 7/21/12

"How Physicians Eat their Young," The Weinmann Report (www.politicsofhealthcare.com), 2/12/14

"AAN Calls for Elimination of MOC Part IV," AAN News

"Do Doctors Expire in 10 Years?" Workcompcentral, Robert Weinmann, MD, 5/15/14 (In the original AAPS article Larry Huntoon, MD, PhD, pointed out that AAN had scheduled an MOC symposium and that Dr. Nora was to be a speaker but did not feel obliged at the time to disclose as a possible conflict of interest that her 2012 salary at ABMS was about $330,000. AAN then is reported to have told AAPS that no such disclaimer was needed since AAN wasn't giving CME credits to participants)

"Do Doctors Expire in 10 Years?" American Association of Physicians and Surgeons (AAPS News), May 2014 (V. 70, #5)






  

APPORTIONMENT AND SIBTF (formerly SIF): Acme Steel v. WCAB & Borman

When Labor Codes 4663 and 4664 were changed pursuant to SB 899 it was understood by the legal and medical stakeholders that major changes in applicable case law were in the making and that the issue of apportionment was about to become even more difficult than it already was. The upshot is that medical evidence that may be considered substantial and that was not rebutted may still be considered even in cases where Permanent Disability has been awarded at the 100% level. 

In Acme Steel v. WCAB & Borman, Acme Steel appealed the verdict in favor of Borman wherein Borman was awarded 100 percent permanent disability without apportionment for hearing loss. It was Borman's contention that his hearing loss, associated with injury  to other body parts, was attributable to his job with Acme (DOI 10/16/03). Three different AMEs worked the case, orthopedics, neurology, and otolaryngology for hearing loss. 

The hearing loss was reported as apportioned to both industrial and non-industrial factors, 40% to cochlear degeneration on a non-industrial basis, 60% to "occupational factors," e,g., hearing loss caused by on-the-job noise. The applicant's hearing loss was diagnosed as secondary to cochlea degeneration in turn secondary  to congenital disease of the Organ of Corti.  However, it was also understood that in 1994 the applicant sustained loss of consciousness secondary to an explosion that occurred on-the-job and that catapulted the applicant across the room. A workers comp claim was filed at the time. Applicant Borman was awarded 22% disability; however, his hearing continued to deteriorate.

Applicant Borman's hearing loss was bilateral from the beginning. Hearing aids were advised. Ten years later the AME found that there was "further hearing loss" and that this "further hearing loss ... was the result of both cochlear degeneration ... and persistent noise exposure." 

In 2012 the Workers Comp Admintrative Law Judge (ACALJ) found that Applicant Borman's injury was ratable under the post-2004 Permanent Disability Rating Schedule (PDRS) and that Borman showed 100% loss of earning capacity so that he was entitled to Permanent Total Disability (PTD). The WCALJ also said that LC Sec. 4664 was not pertinent because there was no earning loss before the prior award. In other words, Borman had continued to work while his hearing loss got worse. That's about when ACME appealed by stating that the WCALJ failed to apportion injury pursuant to LC 4663. In other words, there was prior evidence showing 40% hearing loss on a non-industrial basis. 

The WCALJ replied that she was not bound by the findings of the AME because there was "convincing vocational testimony regarding loss of earning capacity." In 2013 WCAB denied ACME's petition for reconsideration. It was at about this time that matters got hot. The case came before the First Appellate District Court. Division One, "Not to be published,"  7/16/13.

The discussion led off with this remark: "When a workers' compensation decision rests on the Board's erroneous interpretation of the law, the reviewing court will annul the decision." The Appellate Court then indicated that the WCALJ's decision asserting that Borman could rebut the rating schedule's DFEC by offering vocational expert testimony showing evidence of 100% loss of earning capacity was proper; however, it then also said that the WCALJ erred "by failing to address the issue of apportionment." 

This assertion was based on changes in LC Sections 4663 and 4664 which were enacted in 2004 as part of SB 899. These changes reflected changing concepts re the issues of apportionment and causation in favor of employer and insurance interests for any portion of a disability that would not have occurred but for the current industrial cause and where injured workers had "wide latitude to disprove apportionment based on prior permanent disability awards by demonstrating that they had substantially rehabilitated the injury." 

The Supreme Court was quoted as saying that "the plain language of new sections 4663 and 4664 demonstrates they were intended to reverse these features." Apportionment was now to be based on causation such that "the new approach to apportionment is to look at the current disability and parcel out its causative sources -- industrial, prior industrial, current industrial -- and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries, not disregard of them (italics added)." 

The court ruled that it was the "clear intent" of the legislature in enacting SB 899 "to charge employers only with that percentage of permanent disability directly caused by the current industrial injury." It was then asserted that the WCAB had ignored substantial medical evidence from the otolaryngology AME that 100% of Borman's hearing loss could not be attributed to the current cumulative trauma. 

The court said that the WCAB's failure to apportion the hearing loss portion of the cumulative trauma was contrary to law such that the award to Borman was annulled. ACME's petition for review was granted. The order denying consideration was annulled. 

My Comment

It can now be expected that this determination on Apportionment will have an effect on SIBTF (SIF) cases. The crucial happenstance in the ACME v. Borman case is that the applicant's total disability award was actually vacated by being annulled and that apportionment was then determined to be applicable. The meaning of this determination is that what is lost in terms of apportionment may now be applicable and applied to  SIBTF situations where prior injury resulted in work disability or "labor disablement."  Labor disablement is currently a crucial concept in SIBTF cases which requires its own level of documentation and proof. 

References

ACME Steel v WCAB and Michael Borman, A137915, filed 7/16/13

Opinion on Decision, WCALJ Deborah Lieberman, 10/25/12

California: A Radical/Diametrical Change in the Law of Apportionment, 09/13/13, Raymond F. Correio

WHEN PATIENTS GET TOO EXPENSIVE TO TREAT

What do insurance companies do when medical expenses get too high for comfort?  How may insurance companies deal with expanding medical costs that lower shareholder return and that may cause reduced executive compensation?

Currently, rituxin is one of the newer agents recommended for the active phase of acute demyelinating disease, multiple sclerosis in particular, but also extending to a complicated condition known as "lupoid sclerosis." Robyn G. Young, MD, Alameda, formely, president of the California Neurology Society,  states that this treatment is a preferred regimen for active system disease. e.g., MS/demyelination accompanying systemic SLE.

However, reluctance on the part of payers to cover this regimen has been noticed by frustrated clinicians whose treatment decisions may be delayed or denied by insurers who may assert that a specific treatment regimen is "experimental" and therefore not eligible for coverage under the plan. If that happens, the patient is then denied insurance coverage and may have to pay for treatment out-of-pocket while the insurance company continues to bill for its alleged coverage, whatever of that remains once what the patient currently needs is denied. 

Insurance companies have other ways of controlling costs. One of these other ways is to limit access to physicians to cover the number of enrolled subscribers. That increases the length of time it'll take to see a physician, especially a specialist, which in turn reduces expenses for the insurance company, which in turn allows more favorable financial quarterly reports to be issued. Another technique is to drop physicians from the MPN (medical provider network) based purely on business reasons -- no allegation of poor medical practice need be made. This latter technique reduces short-term expenses, allows for more favorable financial reports on a quarterly basis, and runs little risk of collectively increased long-term expense because of delays of care. Keep in mind that in workers comp, for instance, Temporary Disability (TD) runs out in two years. 

Doctor Young stated that "our patients should not be the victims of either insurance or pharma greed ... the physician has been devalued while all the other entities with financial interests in rationing patient care have been elevated in control and influence."

That is why some medical organizations seem poised to fight simultaneously for their patients' rights as well as for the rights of member physicians lest the latter become indentured servants dependent either on the corporate mentality that rules Big Biz or the other corporate mentality that rules government. In this regard watch for a likely take-down on an aspect of Obamacare (Affordable Care Act). The case is King versus Burwell, Docket # 14-114, set for SCOTUS argument beginning on 4 March 2015. The case deals with an IRS ruling re availability of federal tax subsidies to persons who bought health insurance on exchanges run by the federal government -- we'll cover more on that in future columns.

In the meantime, Doctor Young's conclusion  that "it is time that we (physicians) took back our role as patient care advocates" should be shouted from physician rooftops everywhere.

References

"Regaining Control of Medical Practice," CLINICAL EEG,  c. 1995, V. 26, #1 (reprints available SSAE upon request to Dr. Weinmann, 2040 Forest Avenue, #4, San Jose, CA. 95128)

"Union head urges reform in health care," THE OAKLAND TRIBUNE,  4 November 1998 (White House press conference with then President Bill Clinton)

PAYMENTS FOR MEDICAL REPORTS ARE DOWN 36.7%: doctors denied payment, workers denied access to care

In workcompcentral's issue of 29 January 2015 CWCI has formally admitted that payments for evaluation and management reports have been slashed by over one-third. CWCI now openly acknowledges  that a big bite has been taken out of consulting physicians evaluation services (the actual obtuse wording is in CWCI Research Update by Stacey L. Jones, January, 2015).

One of the methods used to deny injured workers fair review of their claims is to find a legal way not to pay for review of records or to discourage creation of the reports in the first place. Here is how it's done:

 1) separate reimbursement for non-face-to-face prolonged evaluation and management services is eliminated. This step means that a physician's review of medical records won't be paid for. This step in turn means that when physicians receive, say, 20  or 30 lbs. of medical records, they will not be paid for review of these records. 

2) The prolonged service code 99358 which was previously used to bill for reimbursement for the several hours it might take for review of records has been disallowed.

3) The workcompcentral article disclosing these changes says that doctors who are frustrated with the effort it takes carriers to pay have a choice: they can stop accepting injured workers as patients or they can accept fewer cases.

4) The workcompcentral story says that "doctors are no longer paid for time to review records and research literature to support a treatment request."

5) The workcompcentral story goes on to say that the current fee schedule "almost encourages the omission of medical records in the treatment review process" and that this step in turn means that carriers often deny treatment and force injured workers into the independent review process.

6) We know from previous stories in workcompcentral that Utilization Review denies 80% of treatment requests and that 80% of the time the rejection is upheld by Independent Medical Review (IMR).

7) For about one year there was an alternative to across-the-board denial of record review. Physicians who asked for consultations could file contracts pursuant to Labor Code 5307.11 in which pre-authorization could be requested along with a pre-negotiated fee arrangement. Under this code it was permitted to bill for 99358. For about a year, some adjusters who wanted a specific physician's report would sign the agreement. No longer is that the case. Physicians' offices are now routinely refused use of LC 5307.11 -- they're even told by adjusters that the word has come down from upper management that they may not authorize or otherwise approve use of LC 5307.11 contracts. In some venues this conduct might be seen as an illegal  restraint of trade but not in the workers comp field.

The law evidently allows management to declare a legal contract out-of-bounds. It may be here that there is an Achilles heel. Does the California Applicants Attorneys Association (CAAA) have an opinion? Or California Society of Industrial Medicine and Surgery (CSIMS)? or Voters Injured at Work (VIAW)?

8) For the time being, the door has been slammed shut not only on 99358 as a prolonged service code but also  on other related report codes. The slammed door is smack in the face of the injured worker. The upshot is that the injured worker's access to care has been slashed by a multitude of administrative decisions wrought by SB 863 which now appears to have caused more harm than good. We now have concurrence from CWCI as to how this unfortunate situation is unwinding.  What we don't have yet is a solution although repeal of SB 863 would be a step in the right direction.

UNION OF AMERICAN PHYSICIANS AND DENTISTS LEADS STRIKE AT UNIVERSITY OF CALIFORNIA HOSPITALS

DOCTORS STRIKE at UC HOSPITALS      

For physicians work stoppage is almost unheard of -- these are the guys who treat patients under fire in war zones and whose lives are 7 years shorter than the rest of the population because of the stress entailed at being available at all hours for a lifetime. 

But now the tide has turned. Healthcare conglomerates have converted doctors into healthcare providers and often employ less trained associates to do the job -- give 'em a white coat and set 'em loose on patients while profits soar to top executives. 

It is not hard in that context to understand why UC or any other competitive company engaged in selling healthcare services and products might want to exploit its workers. Yesterday it was the garment workers. Today it is the physicians' turn. 

This time the target is the doctors who take care of the students at UC.  Over a year ago the doctors learned that they needed to be organized, not just for wages, but also to be enabled to provide the best health care they can. Over this length of time the Union of American Physicians and Dentists (UAPD) has had to contend repeatedly with unfair labor practices (ULPs) perpetrated by UC. As a result the UAPD determined that "a ULP strike is the only way to compel UC to follow the laws that govern bargaining."

Stuart A. Bussey, MD, president of the UAPD, stated that "UC has a history of disrespecting workers during negotiations, and we're no exception to that." 

Doctors at all 10 campus health centers are ready to strike. There will be six picketing sites, UC Berkeley at UHS Tang Center, UC Davis at the Student Health and Wellness Center, UC Santa Cruz at the Student Health Center, UC Irvine at the Student Health Center, UCLA at the Ashe Student Student Health and Welfare Center, and UC San Diego at Student Health Services. 

Barack Obama, 2015, SOTU, Physician Shortages and Tax Consequences

Part 2

In Part 1 we dissected important parts of the Affordable Care Act (ACA, known as Obamacare) that have not yet hit the American public in the proverbial gut but which, in our opinion, reflect a flurry of body punches that's just around the corner. In due course, the IPAB (Independent Payment Advisory Board) will be obliged to act. Keep in mind that the IPAB used to be known as the IMAB (Independent Medicare Advisory Board) which got scuttled when Medicare's constituency realized that it was aimed straight at them  -- then it was reconstructed in the ACA with a name-change. 

The president boasted that about 10 million uninsured Americans were enabled to sign up for health insurance under the ACA. What the president didn't tell us was which health care plans including Covered California did not have enough physicians to cover expected demand. He did not disclose the looming physician shortage that healthcare plans anticipate. By way of personal anecdote, my own personal doctors display signs in their waiting rooms that they don't accept Covered California. In a nutshell, Covered California subscribers and subscribers to many of the ACA plans technically have coverage under their plans; but the plans themselves don't have enough physicians.  The president could have advised potential subscribers to make sure that health care plans include the physicians we trust and rely upon. 

Not to worry. There is a solution although maybe not one that many will like. Covered California and the ACA-enabled plans need not retain physicians if they can fill their ranks with physician assistants, nurses, and eventually nurses with doctorates in nursing practice. All the plans need to do is fulfill the legislative mandate with so-called healthcare providers which can include nursing assistants and other non-physician personnel. Some subscribers will feel they've been swindled, but it'll be too late to make significant changes. Then the president will be an ex-president on high-priced lecture tours. 

But the more imminent surprise will be taxes. It has been stated all along that there may be tax consequences in addition to a fine that has been touted as the likely penalty for non-subscribers who seek coverage.  With the 2014 Tax Year payments looming,  we now know that many Americans will face penalties when they file their returns and that these penalties will reflect aspects of the ACA legislation. The president could have advised American taxpayers to check out this contingency before filing their 2014 returns. Instead, he left them in the lurch.

Many of us expected better. It will not be our last disappointment. 
  

Barack Obama, 2015, SOTU: "If a bill comes to my desk that tries to do any of these things, I will veto it"

Part One

"Any of these things," that's what president Obama said during his SOTU speech. His meaning was clear: he referred to  four areas where he said that any Congressional amendments would be considered as "tinkering" and would be vetoed. He included immigration and the Affordable Care Act in this category. The promised vetoes revealed that our president was prepared to shift from a government characterized by the consent of the governed to one that would be more autocratic and unilateral. No previous president ever threatened Congress with four, count 'em, four vetoes. 

Our concern in this post is the Affordable Care Act (ACA), popularly known as Obamacare. It has long since been forgotten that the first important "tinkering" with the ACA was by Obama himself when he dropped the public option from the bill -- the public option was an awkward inconvenience at the time so the president "tinkered" with it. He used a hatchet.

Now efforts to improve the bill are either opposed by its far right opposition which would repeal the entire bill or get opposed by supposed supporters in favor of as much giveaway politics as is humanly possible. 

Here's the deal: the ACA contains two parts that are highly controversial, Sections 10320 and 3403. These sections in the ACA create the Independent Payment Advisory Board (IPAB) which has the power to decide what Medicare will actually cover. The IPAB will consist of 15 members; in fact, in 2012 $15,000,000 was appropriated for the IPAB whose members, while ruling on Medicare benefits, would not be obliged to report to Congress. Each member is to be paid about $165,000 annually -- without, one emphasizes again, without the pesky necessity of reporting to Congress which would still retain theoretical control although much abbreviated. 

Here's how it'll work: the IPAB gets the authority to make changes in the Medicare program but Congress retains power to overrule the IPAB's decisions if, and only if, it can muster a supermajority vote.  Otherwise, a gaggle of 15 appointees would make decisions on matters that are life and death to the elderly and to the especially vulnerable, e.g., age limits for surgery, or for insulin, or for renal dialysis. 

The far reaching effects of the IPAB were actually realized as early as 2010. In the second presidential debate, Gov. Romney had the temerity to ask President Obama who would be appointed to the IPAB. Obama's answer was "doctors et cetera."

Wrong. Obama's answer,  stated with finality, was wrong, but Romney didn't know it and let the issue slide by. Meanwhile the president got away with debate mayhem. He answered incorrectly and wasn't called on it by his opponent or the moderator.  The fact is that there is nothing in the language of Sections 3403 or 13020 that requires even a single physician to be appointed to the IPAB. The entire panel of 15 is to be political appointees with some modicum of interest in healthcare, e.g., the now ill famed coterie of "healthcare providers," anybody but knowledgeable physicians and scholars.THAT is what Obama would protect by threatening legislation that he considers "tinkering." 

The intent of the IPAB in its role as supporter of the ACA is to assess if cost projections exceed targeted growth rates. If that happens, then the IPAB without reporting to Congress is supposed to find ways to reduce Medicare spending -- in short, what will amount to deprivation of care from especially vulnerable patients with advanced or incurable disease. This category will include the elderly. It will be the modern day equivalent of the ancient Eskimo custom of turning frail and elderly citizens loose on ice floes. The trouble is that one can easily see that there may come a time when building a highway competes financially with elder care or with younger patients who need expensive care or advanced surgery. 

What could the president have told us about Obamacare that might have given us a little warning of potentially dire consequences that might just be around the corner, say, at tax time which is just around the corner?

That will be our Part 2, so tune in tomorrow.

How so-called "guidelines" become hard-and-fast "regulations"

Our previous post showed how Utilization Review decisions sometimes turn out to be regarded and applied as actual practice mandates and how 80% of such decisions are actually denials of care that get upheld by Independent Medical Review. 

The quizzical situation is that many of the UR doctors are not licensed in California. Neither are many of the IMR doctors. More to the point is that the UR doctors and their IMR colleagues often reject diagnostic studies and treatment that has been recommended by MPN (medical provider network) doctors that have been selected by the same companies that approved the UR panels that then denied treatment. Practicing doctors and their patients who know that an injury is real have long since figured out that cost-control, not patient care, is the name of the game. Even the AMA has gotten into the game, purveying and selling to any and all willing buyers a book called Guidelines to Impairment. This book has proved to be a goldmine for insurance companies and their employers who don't want to pay for whatever they can get away with denying as a "covered" item.

Meanwhile, seeing the business success of the AMA Guidelines, other organizations have jumped onto the regulatory bandwagon, e.g, the ABMS boards who now sell "recertification" and "maintenance of certification" programs to their own members. In fact, the eagerness with which physicians' own organizations have sought to subjugate its own members has actually provoked enough ire among physicians that 14 states have already passed legislation modifying the greed-encrusted thrust of the ABMS boards to sequester themselves as well paid bosses (about $800,000 for the ABMS chief, see previous post).

Likewise professional organizations such as the American Academy of Neurology (AAN) which recently published a "position paper" on chronic pain and opioid medication -- without submitting a draft to the California Neurology Society (CNS). THAT caught the attention of  then CNS president Robyn Young, MD, who also reviewed a similar advisory from the Medical Board of California (MBC) which seemed more in line with CNS practices than the AAN paper which was widely regarded as one-sided and biased.

That situation in turn led to CNS' asking its own Director of Government Relations to testify at the MBC hearing in October of 2014. The MBC considered several subjects one of which was a unified and reasonable approach to the treatment and management of chronic pain. Accordingly, the CNS Director of Government Relations, Steve Cattolica, stated "these guidelines are not the only treatment of this issue prescribing controlled substances for non-cancer pain." It was acknowledged that such guidelines, however,"should represent the standard of care for physicians in California ... that fact begs the question how these guidelines will be used or IF they will be used as the Board has intended."

Cattolica then pointed out that "our constituents with heavy emphasis in treating injured workers face a difficult situation" because "any inconsistency will cause all physicians to perhaps compromise the standard of care." Using the Division of Workers Comp (DWC) as an example Cattolica stated how "the DWC's treatment guidelines have a long and proven track record of being misapplied ... to control costs and identify physicians they no longer want in their medical provider networks."

The MBC chair, Ms. Yaroslavsky, was quoted as having said that guidelines are just that, guidelines, not regulations. Cattolica then stated why vigilance is essential: "the physician community's experience with the application of treatment guidelines in the workers' compensation system is as rigid criteria." In other words, it needs to be emphasized that AAN Policy Paper on the use of opioids in non-cancer pain is a guideline, not a regulation, and that the same goes for the guidelines proposed by the MBC. It can be anticipated that the MBC and the AAN recommendations will compete for attention from treating physicians. Either way the mere presence of written guidelines opens the way for automatic rejections of treatment by utilization reviewers in all walks of medical practice including government plans such as Medicare and Medicaid, or managed care plans such as HMOs and PPOs, or workers compensation where remote control medicine is already rife among UR doctors and their legally anonymous IMR counterparts.

Cattolica advised a change in wording-- drop the phrase "very consistent" from the recommended statement of Guidelines and replace it with the word, "equivalent."