The R & R Ride for SB 1160 (Mendoza)

Now that Governor Brown signed SB 1160 (Mendoza) into law, it's time for the bill to enter the "rulemaking" phase. That's when legislation either gets its teeth or gets its teeth kicked in. The Rules and Regulations (R&R) Ride for SB 1160 (Mendoza) starts at the Hiram Johnson State Office Building at 455 Golden Gate Avenue, San Francisco, 10 AM, 4 January 2017. Public testimony is supposedly limited to 10 minutes per speaker. The subject will be Title 8, CCRs, Section 10770 (amended) and 10770.7 (newly adopted).

Here is our opinion: implementation of SB 1160 (Mendoza) needs to be far more friendly to injured workers than it currently is. The Rules and Regulations (R & Rs) as proposed will implement a lien process that may be expanded in the sense that it will apply not only to doctors who accept liens but also to any physician or other provider who runs into snags with payment so that the only way remaining to proceed with an unpaid claim is through the lien process. That means if the lien process becomes the only viable option for a delayed or denied payment for medical or other service it will be necessary to file a lien under new R & Rs. That means increased crunch and grind especially for small offices. In turn that means progressive reduction in access to care for injured workers.  

We also believe that a hint of hypocrisy persists in the process. Here's how: supposedly, treating doctors will get the first 30 days of treatment unimpeded by Utilization Review. Not quite. Not all procedures will be removed from the UR Cauldron of Dismissal: MRI scanning will remain off limits. So will non-formulary medications and durable medical equipment costing over $250. Psychological treatment will remain on the proscribed list (remember in 2015 that Neuropsych QME was unilaterally and arbitrarily canceled by the Director). 

Surgery will still require prior authorization by UR. 

For these reasons, we urge participants with a stake in this process to file statements:

By mail, Workers Comp Appeals Board, Annette Gabrielli, Regional Coordinator, P.O. Box 429459, San Francisco, CA. 94142-9459

By delivery service or personal delivery, WCAB, Annette Gabrielli, Regional Coordinator, 455 Golden Gate Avenue, 9th floor, San Francisco.

By Fax, 1-415-703-4549.

Have fun over the New Year's Holiday but keep your fingers crossed. We give you two references, see below.

References

"Weinmann: Now Comes SB 1160: Unreasonable Denials," www.workcompcentral.com, 2016-08-23;

"SB 1160 (Mendoza): anti-fraud legislation aimed at physicians permits MPN fraud," www.politicsofhealthcare.com, 2016-08-06.

UNIONIZING PHYSICIANS IN WASHINGTON STATE -- Taking on MultiCare

In a historic development for professional unions, Stuart Bussey, MD, JD, president of the Union of American Physicians and Dentists (UAPD), stated on 15 October 2016 that the private practice physicians at Auburn Medical Center (AMC) in Tacoma, Washington, voted to join the UAPD -- the occasion is historic because it is the first time that the UAPD has formally organized a hospital medical staff outside of California. Although the UAPD has had non-California membership throughout its history, this effort marks the first successful organizational campaign outside of California. This step means that the UAPD and its AMC members can now negotiate legally with MultiCare which had opposed the formation of a doctors' union but which also indicated its intent to work with the physicians' elected union representative.

Local leadership was provided by Virginia Stowell, MD, general surgeon, whose concerns included winning more autonomy for physicians in the disposition of patient care, developing more clout in the negotiation of compensation and working conditions, and preventing the arbitrary outsourcing of professional work by hospital administration. Stowell's history includes having worked at MultiCare since 2012. Before that she was in private practice for 16 years. At the present time, MultiCare reviews physician compensation and makes its own decisions. From now on the UAPD will be enabled to participate in these decisions. In leading up to this historic vote, Stowell won two cases with NLRB that prevented MultiCare from foisting its will upon their physicians. In a nutshell, NLRB ruled that efforts by MultiCare  to prevent its doctors from discussing wages and working conditions violated the National Labor Relations Act which protects this activity.

It was pointed out during the voting process that hospitals have many committees staffed by physicians but that in the final analysis such committees have minimal ability to oppose administrative decisions decided upon by management. Stowell and others, including Neil Partain, a hospitalist at AMC, agreed that it would be better for the physicians and their patients if the doctors had a union to represent their views before the hospital and MultiCare.

Representing the UAPD in this effort was Theodore Gashaw, Lead Organizer, 916-796-3124, tgashaw@uapd.com.  Gashaw said that members of other systems have also called him although at this time MultiCare is where the UAPD has received the most interest.

Meanwhile in California, expanded interest in private practice organization is anticipated especially since Governor Brown signed AB 72 (Bonta) into law. This bill slashes "surprise billing" (see our previous editorial about "surprise billing" and AB 72, 6 October 2016) but leaves "network contraction" intact. Critics point out to what extent this legislation, under the guise of patient protection, actually promotes corporate compensation at the expense of patient care.

SB 1160 (Mendoza): anti-fraud legislation aimed at physicians permits MPN fraud

Governor Brown signed SB 1160 (Mendoza) supposedly to combat fraud in the form of abusive lien practices by physicians. The trouble is that injured workers in disputed claims often rely on physicians to risk non-payment by accepting liens, hopefully eventually to be paid. SB 1160 shoots an arrow into the heart of this largess because its language is such that it discourages physicians from getting involved in any liens at all. The net result is that many injured workers will no longer have access to medical care.

In exchange for this slap-in-the-face the bill supposedly eases up on Utilization Review for the first 30 days following injury. The idea, or so said the press releases, was to facilitate treatment. The trouble in this part of the bill is that it actually specifically prevents physicians even in this 30 day period from getting certain crucial but specific diagnostic studies because they're deemed too expensive. Access to profit trumps patient care in SB 1160. 

So much for easing up on Utilization Review. It appears that once again injured workers get the short end of the stick if in fact they get any part of it at all. 

GOVERNOR BROWN SLASHES CARE TO INJURED WORKERS -- AGAIN!

Governor Brown vetoed AB 2086 (Cooley), by and large for the same wobbly reasons that he vetoed AB 1542 last year, namely, that the bill "would create a unique lower standard" even though this specialty had already served the state and its injured workers well for 22 years before it was dissolved for undisclosed political reasons. The bill had no significant opposition in the legislature. This bill would have required the Division of Workers Comp to appoint qualified clinical neuropsychologists as QMEs (Qualified Medical Evaluators) to evaluate injured workers who sustained cerebral concussion and/or traumatic brain injury (TBI) for return to work placement. Impartial non-medical organizations supported the bill, for instance, organizations not representing either physicians or psychologists such as the California Alliance of Retired Americans (CARA) which told the governor in written communication that "TBI patients need all the help they can get." What is clear from the veto is that none of this help is going to be provided by Governor Brown. 

AB 72 (Bonta) targets physicians but leaves insurance companies and MPNs unscathed

Governor Brown signed AB 72 (Bonta) to put a stop to "surprise billing" but he left intact the ability of Medical Provider Networks (MPNs) and insurance companies to skimp on medical coverage, for instance, by not retaining enough specialists. When the MPN's patients then need the specialist that the MPN can't provide, "out-of-network" specialists are summoned. The "out-of-network" physicians, since they're not in-network, may bill at higher rates than the MPNs -- this practice has resulted in unpleasant surprises to patients when they learn that the medical bills they're getting are higher than expected because the specialist called in at the last minute was "out-of-network." This practice ends with Bonta's legislation which targets doctors but spares MPNs. Here's the scoop: the MPN purposefully retains too few doctors, especially specialists, in order to avoid paying "in-network" specialists. This desultory practice is known as "network contraction" or "in-network sharing." It allows more of subscribers' premium payments to be used for increased executive compensation instead of for patient care. Bonta's bill could have fixed this aspect of the problem along with the smack-down on "surprise billing." Only Bonta didn't want to ruffle the feathers of the insurers and MPNs. This writer recommends for legislative year 2017 that CMA, CSIMS, CNS, and UAPD seek legislation requiring MPNs to field fully staffed networks so that "out-of-network" doctors are no longer needed. The legislation needed would require that MPNs be fully  staffed or else -- the or else would be dissolution of the MPN for non-compliance.

VETO OR AMEND AB 72 (Bonta)

This memo was sent as a personal message to Governor Brown re AB 72 (Bonta) earlier this month just after the bill was enrolled and sent to his desk. Now we make it public:

"Because AB 72 leaves 'network contraction' as a viable business method, eliminating only the 'surprise billing' element,  if you let AB 72 slip into law, you might want to add a memo of your own that there should be follow-up legislation to make sure that the medical networks are fully staffed. 'Fully staffed' means that they include a complete range of medical and surgical specialists. 

Meantime, we recommend a veto."

Robert L. Weinmann, MD, Editor

Robert L. Weinmann, MD, Editor, The Weinmann Report (www.politicsofhealthcare.com) 

Reference for our readers:

Our original piece was posted on-line at www.politicsofhealthcare.com on 12 August 2016.  The title was "Assembly Bill 72 (Bonta): Oppose Unless Amended, a pending bait and switch bill," in other words, a bill to disallow "surprise billing" while leaving the underlying mechanism enabling appointment of out-of-network doctors intact. The mechanism is called "network contraction" and is also  known as "in-network cost sharing." It allows networks to understaff by purposefully not carrying enough network doctors to cover all medical and surgical specialties. It's a profitable network move at the expense of services to network subscribers or customers who don't know their insurance plan is not required by law to retain a full network of physicians and surgeons. So here is the amendment we recommended as of 8/12/16:

Health-care plans should be required to maintain full provider lists covering all specialties. The plans should provide these lists to their in-network providers and to all of their subscribers and customers. Networks that fail in this requirement should be penalized by fines and disciplinary action against their managers and officers.

9/23/2016 -- flash! Governor Brown signed AB 72 into law. There are no provisions in the bill to prevent corporate greed, e.g., "network contraction." The bill is aimed squarely between the eyes of "out-of-network" providers.

INVESTIGATING WORKERS COMP DENIALS OF CARE ON TELEVISION AND RADIO

The undersigned recently participated in two investigative stories, one on television, NBC Bay Area, the other on radio, KPFA, 94.1 Wednesday, 8/31/16.

The NBC Bay Area story was a three-part investigation of workers comp. The focus was bureaucratic delay and denial of care to injured workers in California. Here are the links: Dozens of Injured San Jose Firefighters Denied Workers' Comp Treatment; Workers' Comp Drags Out Medical Care, Injured Workers and their Doctors Say; and Injured Workers Face Stacked Deck During Workers' Comp Appeals Process, Critics Say.

The KPFA 94.1 story was broadcast on WorkWeek Radio. This program addressed "the growing crisis for injured workers" in California and revealed that Maximus, which does so-called "independent medical review," was paid $40 million in a "no bid contract to make determinations of whether workers were entitled to medical care." The story is a production of Work Week Radio, workweek@kpfa.org

The undersigned commented on SB 1160 (Mendoza) and on the continuing travesty that allows Utilization Review (UR) and Independent Medical Review (IMR) doctors to determine California-based cases even though these doctors may not be licensed in California and aren't subject to the state medical board. While SB 1160 may actually improve UR somewhat, its lien provisions harm access to care for injured workers. 

NOW COMES SB 1160 (Mendoza): Unreasonable Denials

SB 1160 (Mendoza) would require that lien claimants in workers comp file declarations with all liens as of 1 January 2017. Failure to follow through on this step would enable WCAB to dismiss the lien. As part of the signed declaration physicians would be obliged to say that the dispute in question is not subject to independent bill review. As we know from previous posts utilization review (UR) appointees  and independent medical reviewers (IMR) in California do not have to be licensed to practice in California, do not have to disclose their names, and are enabled by law to reject the most indicated and necessary treatment protocols . The situation is so dire that many treating physicians simply don't trust the utilization review or IMR process. In one recent post we disclosed how one UR doctor notified the injured worker's doctor about a denial of care at 10 PM while another notified the treating doctor's physician at 4:00 AM (nobody was home either time).

Carl Brakensiek, MBA, JD, Physician Advocate representing the California Neurology Society and the California Society of Industrial Medicine and Surgery, and others, has expressed concern "that some of the recently announced proposed amendments to SB 1160 will severely restrict access to care for many injured workers in California" and that certain "amendments being advanced by the Department of Industrial Relations will have a substantial adverse impact on many bona fide injured workers."

It was then pointed out that, fortunately, under the present system, because liens can be filed, there are physicians able and willing to provide medical care even though liability is being disputed. We call that a "Safety Net." It works because once proper liens are filed the providers of service get paid .

SB 1160 (Mendoza) throws all this past medical history out with the baby and the bathwater. It will require that liens for medical treatment be filed alongside declarations signed under penalty of perjury saying that the dispute isn't subject to independent medical review. Denial letters from adjusters or claims managers would no longer be automatically assumed to mean that "medical treatment has been neglected or unreasonably refused" and would allow employers to refuse coverage for injuries simply by asserting that the injury wasn't industrial. Brakensiek argues that this language should be revised "to specify clearly that if the employer has explicitly or constructively denied liability for the injury, then the claimant may file a lien."

Another likely blow to injured workers has to do with the assignment of liens. This technique is a financing modality useful when a number of liens have piled up over time because insurance companies, buttressed by Utilization Review, in turn buttressed by Independent Medical Review, have wrongly denied claims. The Lien Report from the Commission on Health and Safety Workers Compensation has already weighed in on this issue. Here is what was said: "we find no evidence that the practice of assigning lien rights is a problem in and of itself." By abolishing this mechanism, the Department of Industrial Relations now intends to make it a problem "in and of itself."

In a nutshell, prohibiting the assignment of liens would then become one more nail in the coffin of injured workers since many physicians now accepting liens would no longer be able to continue in practice. All in all we do not find that SB 1160 is helpful legislation in its current form. We find that amendments are needed. Therefore, at the present time, we urge an OUA (oppose unless amended) approach. 

AB 72 (Bonta): a pending bait and switch bill: Oppose Unless Amended

AB 72 (Bonta) is supposed to be consumer-friendly legislation since it'll do away with "surprise billing." The term, "surprise billing," refers to instances where patients, unable to secure medical services within their own network or managed care plan, are obliged to retain an out-of-network physician who then may charge usual and customary fees. The out-of-network physician is not bound by network rates because he has not contracted with the network. The "surprise" is to the patient who finds out (1) that he is not covered by the network to which he's been paying annual enrollment fees and (2) the out-of-network bill may be considerably more than one would have expected from an in-network provider. The patient caught in this trap has good cause to be angry.

AB 72 is supposed to "cap" out-of-network provider billings. The technique is also a "surprise" because in the guise of protecting patients it actually harms them while bolstering the profiteering mantra of the insurance industry. It is called "in-network cost sharing."

Susan Hansen, MD, neurologist, Mountain View, states that "AB 72 is a rate-setting bill that will devastate physicians ... by setting rates at 125% of Medicare." Hansen points out that no plan is likely to contract for a higher rate than the ceiling set by legislation and that "this bill removes the last chair in the musical chair game that price-fixing has caused" because "Medi-Cal, Medicare, and WC (workers comp) fees are typically set below the cost of doing business." Hansen then points out that this mechanism "forces physicians to cost-shift to the PPO and uninsured patients."

The tricky-dick part of AB 72 is that it actually forces all physicians to become de facto members of provider networks. Once this squeeze has been foisted onto the doctors, the door will be wide open for networks to increase executive compensation and corporate profit since they will now save money by underpaying physicians. Patients should soon realize that their premiums are being used to reward administrators, not the physicians and surgeons for whom they thought they were contracting. AB 72 is a fancy version of bait and switch. 

The trouble is that this "in-network sharing" model will  create understaffed networks -- that's how patients will suffer. Understaffed networks means fewer and fewer available physicians and surgeons -- the money moguls will have succeeded in putting profits before patients. AB 72 will be the tool. 

Eileen Natuzzi, MD, surgeon, San Diego, puts it this way: "... this mess was created by insurance companies and plans underpaying doctors, not doctors billing too much."

How to take action: We  expect this bill to go to the State Senate on or about August 16th. Next it's scheduled for the Assembly. Our recommendation is OPPOSE UNLESS AMENDED.

Here is a proposed amendment:  "health-care plans should be required to maintain full provider lists covering all specialties. The plans should provide these lists to their in-network providers and to all of their subscribers and customers.  Networks that fail in this requirement should be penalized by fines and disciplinary action against their managers and officers." 

SB 863 (De Leon) benefits employers, harms injured workers

News Release # 2016-73, Department of Industrial Relations (DIR), July 15, 2016, boasts that workers comp reforms have shown "benefits for injured workers, employers." This writer agrees that the work comp reforms mandated by SB 863 (De Leon) have brought about substantial benefits for employers.

SB 863 is supposed to work by relying on "evidence-based medicine to guide treatment decisions." It is supposed to settle treatment disputes by allowing independent medical reviewers to rule on the correctness or not of decisions made by Utilization Review. David Lanier, Labor and Workforce Development Secretary, is quoted in the DIR release as follows: "The primary goals of the 2012 workers' compensation reforms were to increase benefits and improve medical care for injured workers, and to control costs for employers."

This DIR release is its 3rd annual report since SB 863 took effect on 1 January 2013. Among its boasts are that the projected average medical costs per claim have gone down about 8% from 2011 to 2015 and that"benefits for workers also improved." The report says that "a focus on evidence-based medicine  has had wide-ranging impact, reducing costs and unnecessary treatment and creating Independent Medical Review (IMR) to resolve disputes." In support of these allegations, DIR Director Christine Baker said "Stakeholders have had valuable input at every stage in this process." This publication takes issue with this assertion. Here's why:

* Certain kinds of treatment such as physical therapy are limited to 24 sessions even though there is no peer reviewed evidence-based guideline that avers such a limit. Hence, P.T. to  injured workers is often prematurely stopped thereby delaying recovery and return to work. Initially costs are curtailed by this arbitrary stoppage; eventually, however, the injured worker remains without treatment, withdraws from the workforce, and applies for social security.

* In TotalCapitol.com, 2 April 2014, this writer described a situation where a Utilization Review doctor called a treating doctor's office at 10 PM to deny authorization for care. Not surprisingly, nobody was in. The PTP or Primary Treating Physician asked for a second review by a different IMR doctor.  The request was granted. A second review was done. The result was the same. Authorization to provide care was again denied. Dutifully, the second IMR doctor notified the PTP, this time at 4:34 AM (message left on PTP's exchange).

* It was reported that these  two denials of care were made in a careless manner reflective of unprofessional conduct. No action was taken by the Medical Board of California (which said it didn't have jurisdiction).  The names of the IMR doctors whose poor judgement in this matter led to denials of care for injured workers were by law (SB 863) shrouded in secrecy.

* Utilization Review doctors need not be licensed in California. IMR doctors also do not need to be licensed in California.  Their denials of authorization for care may shut down treatment and lead to Lanier's and Baker's cost savings for employers -- at the expense of injured workers. Somehow this harmful situation is acceptable to the administration. Licentiates, subject to the discipline of the state medical board, might not be so cavalier about leaving messages about treatment rejection as telephone messages at 4:34am.

* Over the years a plethora of cases have been reported by this author and by other treating physicians. Some have been litigated successfully.  The ultimate reform has still to be made, i.e., repeal of SB 863 (De Leon) and formal licensing in California of any doctor who does either UR or IMR on injured workers in California.

References

TotalCapitol.com, "Utilization Review Hypocrisy, " 2 April 2014;

Workcompcentral, "Utilization Review: Hypocrisy in Velvet Gloves," 2014-03-26;

Workcompcentral, "Employers Line up in Opposition to 'Reform' Bill," 2016-06-23: SB 563 (Pan) would prohibit offering incentives to physicians conducting utilization review to deny treatment requests and would give Division of Workers Comp authority to review UR contractors to make sure they don't include such incentives"

COMMENT: while we also favor this bill we prefer repeal of the entire SB 863 which we no longer feel is being applied in good faith by insurers or employers. 

Workcompcentral, "How UR and IMR work together to deny injured workers care," 2014-08-18

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

FORENSIC AUTOPSY BILL, SB 1189, CLEARS SENATE, MOVES TO ASSEMBLY

SB 1189 by Senators Pan and Hannah-Beth Jackson passed the state senate on 2 June 2016. This bill was the subject of two previous stories in The Weinmann Report, 5/23/16 and 5/30/16. We told how an unusual death was discovered at Patton State Hospital where the decedent was found with his head shoved into a barrel, immersed in 13 inches of water, and how the decedent "had a cloth bag over his head and face." The manner of death appeared suspicious and unlikely a suicide. The examining pathologist said that the cause of death was probably drowning but that the "manner" of death was "undetermined." No specific mention was made that the death may have been at the hands of another. Homicide as a possibility wasn't mentioned.

The forensic autopsy to determine actual pathology and cause of death was done by a licensed M.D. The report stated the details of gross and laboratory examination. Toxicology screen was negative.
Witnesses in attendance included one other M.D., the investigator from Patton, two detectives, and the forensic specialist from the San Bernardino Police Department.

SB 1189 was amended twice,  lessening the authority of the examining pathologist, each time seeming to allow police attendance at a forensic autopsy even though the decedent in this case died while he was in their overall custody. Efforts were made in the original state legislation to ensure that forensic autopsies would be done by licensed physicians (that should read California licenses when the death occurs in California). Efforts were also made to ensure that law enforcement could be present at the discretion of the pathologist but not if the law enforcement entity was in charge of the decedent's well being during life. These issues became debating points as the bill moved through the State Senate.

SB 1189 now goes to the Assembly. It currently states that only licensed physicians may do autopsies. We suggest that "licensed in California" be plainly stated to avoid the debacle still encountered in Utilization Review where non-California licensed physicians who have not interviewed or examined a patient may overrule and deny care to patients who've been prescribed care by licensed California physicians.

In addition to the suspicious case described in this report and our two previous reports, there is another case that deserves mention. In Ventura County last year partial autopsies were done by assistants. The doctor who was Chief Medical Examiner at the time was on vacation. He rendered his decision on cause of death upon return from vacation. These two cases explain three sections of currently proposed legislation in SB 1189 and why those sections should be kept strong,

First: the cause of death and the manner of death should be determined by physicians licensed in California if the death occurred in California; 

Second: law enforcement personnel should be allowed entrance into the autopsy suite at the discretion of the pathologist when said law enforcement has completed specified required training and education related to pathology and autopsy protocol;

Third: law enforcement who were involved or responsible for the custody of a decedent who died in their care may not be present.

This writer recommends an aye vote for SB 1189 if these provisions are kept intact.

WHEN IS DEATH BY DROWNING DESCRIBED AS "UNDETERMINED?" HOW SB 1189 (PAN) COULD BRING CLARITY.

Our story datelined 23 May 16 described an unusual case of death by drowning wherein the subsequent forensic autopsy report obscured the cause of death.  The forensic autopsy is supposed to answer questions. In this case there is worry that it did not and that intervention by legal authority was contributory. The question then arises as to who is allowed into the autopsy suite during a forensic evaluation. For the decedent's autopsy in this case the attendees included the pathologist who did the examination, one MD witness, the investigator for Patton State Hospital, two detectives, and the forensic specialist from the San Bernardino Police Department. The question that has arisen is to what extent the presence of law enforcement intimidated the pathologist or to what extend commentary from the non-MDs may have contributed to an altered conclusion. 

Senator Pan's bill, SB 1189, is intended to resolve these issues. It is sponsored by the Union of American Physicians and Dentists which represents state and county employed pathologists. SB 1189, which has already been amended twice, reportedly would require that doctors doing the autopsy would not only be duly licensed in California as a physician and surgeon but would also "preferably" be a "diplomat of the American Board of Pathology." This provision would increase the level of expertise of pathologists doing forensic autopsies. It has since been amended out of the bill.

SB 1189 would also require that police and other law enforcement personnel who have completed specified training could be allowed into the autopsy suite "at the discretion of the forensic pathologist." It would also "prohibit law enforcement personnel directly involved with the care and custody of an individual who died due to involvement of law enforcement activity from being involved in any portion of the postmortem examination being inside the autopsy suite during the performance of the autopsy." 

These provisions are not favored by law enforcement. These changes are desired by pathologists who want to do their work under as scientific and non-political conditions as possible. The Counties, responsible for costs, say that all of these changes will exceed their budgets and want the costs taken over by the state which does not want these costs added to the state budget. 

SB 1189 got delayed in Senate Appropriations but cleared "approps" on May 27th. Its next stop should be a senate floor vote. This publication recommends an aye vote. SB 1189 would then go to the Assembly where we recommend that teeth be put back into the bill.

Forensic autopsies should be done by pathologists with special training in the discipline. Law enforcement personnel should be allowed into the autopsy suite only at the discretion of the pathologists doing the examinations. Reports that conclude that the "manner of death" is "undetermined" should be limited to those reports where every effort has been undertaken to reach a scientific conclusion. We conclude that the current report herein discussed is thorough in reported details but falls short with reference to its conclusions. SB 1189 would strengthen the hand of the forensic pathologists who are responsible for the reports. 

IS ABIM'S TRANSFER OF ASSETS TO OFF-SHORE ACCOUNTS A PROPER OR IMPROPER USE OF TAX AVOIDANCE?

On 26 May 16 we asked why the ABIM Foundation would ship financial assets overseas into off shore non-taxable accounts. We assumed that the purpose was to protect money from IRS scrutiny. We suggested that IRS needed to take a look at ABIM and its Foundation to see if the organizations were sufficiently compliant with 501(c)(3) to continue function with tax exempt privileges. After further consideration we've concluded that ABIM's move was in conformity with likely recommendations of its lawyers and tax consultants and that it can reasonably be alleged that at least $6.5 million dollars in assets if submitted to IRS scrutiny might not meet the standards of 501(c)(3) compliance and is consequently at risk not only for taxation but also for penalties and interest. The ABIM lawyers were not asleep at the switch although the ABIM's BOD, beguiled by years of success, may have been. It also appears that boarded physicians have lost standing and professional privileges enough to warrant FTC investigation for restraint of trade. It was pointed out that ABIM's Dr. Richard Baron was rewarded with $812,000 remuneration last year (no night call required although it's our opinion that there was plenty of night-worry). Likewise, we've pointed out how other board presidents and CEOs have been super-amply rewarded, e.g., IRS Form 990 says that $843,000 was paid in 2012 to the president and CEO of ABPN (American Board of Psychiatry and Neurology). These levels of remuneration may be legal but seem inconsistent with the tax exempt status of the named organizations' stated goals. That is why it's felt by Change Board Recertification et al that IRS and FTC scrutiny are indicated.

WHY DOES THE AMERICAN BOARD OF INTERNAL MEDICINE FOUNDATION SHIFT ASSETS OVERSEAS?

More and more, healthcare is joining the industrial complex, read industrial-medical complex, similar to military-industrial complex, or, by way of abbreviation, MFF (Money First and Foremost).  Here's part of the inside story about ABIM: 

1) The ABIM founded the ABIM Foundation;
2) The ABIM Foundation shares its home address in Philadelphia with ABIM;
3) The ABIM Foundation's assets are recently reported to be $81,831,953;
4) The ABIM Foundation was initially funded by $55 million reportedly derived from examination and testing fees -- the $55 million came from the original ABIM which touted re-certification as though it were a public service or an effort to promote the public good by upgrading medical practice.
5) In effect, however, much of the money has been diverted into the waiting pockets of CEOs, board presidents, and other key officers and employees. By way of example, last year Dr. Richard Baron's remuneration was $812,000.  Meanwhile, countless physicians around the country were struggling to come up with enough money to "re-certify." To this extent, physicians with bona fide credentials were being squeezed out of practice in a form of trade restraint evidently not appreciated by the Federal Trade Commission (FTC). Organizations operating under the 501(c)(3) banner such as ABIM now appear to be working for goals not distinguishable from for-profit entities.

That's not all: A CONDO HERE, AN OFFSHORE ACCOUNT THERE ... 

6) The ABIM Foundation owns and/or operates a $2,356,267 condominium in downtown Philadelphia. The money to buy same was derived entirely or in part from the fees charged to hapless physicians who believed they had to recertify to stay in practice.

7) Now as the heat gets hotter, we're advised that the ABIM Foundation has transferred about $6.5 million into offshore accounts in the Cayman Islands and Dublin.

8) At a symposium in California about one year ago a document was distributed showing how one former ABIM physician officer was awarded stock options.

What's needed? HAS FTC AND IRS GIVEN PASSES TO ABMS ORGANIZATIONS? 

The Federal Trade Commission (FTC) should determine whether or not trade is being restricted; IRS, meanwhile, should examine whether or not the ABIM Foundation meets IRS 501(c)(3) requirements. Are its earnings lining the pockets of private shareholders or individuals?

For many observers the answer is yes. The amount of money paid out in personal remuneration appears exorbitant if the ABIM Foundation is a non-profit or charitable organization. It appears to many observers, this one among them, that IRS needs to review the tax classification of the ABMS boards and their associated organizations. At the same time, FTC needs to assess to what extent the covenants of MOC (Maintenance of Certification) are trade restrictive. 

References

Dr. Wes: "Standing up for the practicing physician"

ABIM Foundation Moves Assets Offshore, 5/20/16 

Change Board Recertification

Anti-MOC

Op-eds, The Weinmann Report, since 2012

"Probable drowning" (SB 1189, Pan & Jackson)

"Undetermined" is  the word used in the official Autopsy Protocol issued by the Coroner Division, San Bernardino County Sheriff's Department, to describe the "manner of death" of Roman Serna Lopez, Jr.

The report tells us some intriguing details as to the manner of death, for instance, that Lopez was found with "his head and torso in the trashcan, with his legs across and on top of the hamper. Lopez had a cloth bag over his head and face." The psychiatric technician who found decedent Lopez in this contorted state "pulled Lopez out of the trashcan and placed him supine on the floor. The cloth bag, which was only loosely around Lopez' head, fell off at that point. Lopez was unresponsive and 911 was called."

How's that, you ask? The autopsy report said that "Lopez had a cloth bag over his head and face." Are we supposed to believe that Lopez put the bag over his own head and face and then took a nose dive into a trashcan? Actually, the facts are even more incredible than that. The autopsy report also says that the trashcan was "filled with 13 inches of water." Are we being led to the possible conclusion that Lopez, whose medical history includes diagnoses of schizophrenia and polysubstance abuse, took a nosedive into 13 inches of water after pulling a cloth bag over his head and face and may have committed suicide in this peculiar manner? The decedent's toxicology screen which included search for cocaine metabolites, amphetamines, opiates, benzodiazepines, fentanyl, and cannabinoids was negative.

The actual examination showed some unusual findings, for example, "a single small petechial hemorrhage in the upper outer quadrant of the of the left sclera" and pulmonary findings showing "marked vascular congestion and alveolar hemorrhage."

There were a "few petechiae found in the sclerae and conjunctivae, consistent with a head down position" plus "acute hemorrhage of tongue."

In the section entitled Diagnosis the first listed diagnosis is "probable drowning." The decedent's body was found "with head inside plastic garbage can with an estimated 13 inches of water." The report adds that the "head was found submerged within the water." There was no evidence of significant blunt force trauma although the decedent's chest showed "mild congestion across the upper chest."

Dr. Trenkle's comment in conclusion was that the cause of death was "probable drowning, minutes." Doctor Trenkle stated that "the cause of death is probable drowning based on the scene description of the decedent being found with his head submerged in water and the absence of another significant competing reason for death."

Witnesses at the autopsy reportedly included Dung Van Tran, MD, and several law enforcement representatives.

My Comment: It is debatable whether or not persons in charge of a decedent's custody while the decedent were alive should be allowed to be present at an autopsy for the person for whose safety during life they were responsible. On the other hand the presence of such personnel is considered desirable if the pathologist or coroner has questions. The theory is that the person doing the autopsy should be able to ask questions that may help establish the manner of death. Law enforcement personnel, by contrast, are not supposed to question the pathologist lest so doing be construed as an attempt to influence the findings.

This issue of The Weinmann Report antedates a scheduled hearing at Senate Appropriations scheduled for later today when Dr. Pan is expected to present with reference to pending legislation, SB 1189 (Pan & Jackson) on this subject. We expect to post again on this matter after the hearing or even if the hearing is delayed. 

AB 2086 (Cooley): deserves passage, vote AYE.

RESTORATION OF NEUROPSYCHOLOGY (AB 2086, Cooley)

In a fit of anti-legislative pique last year, Governor Brown vetoed legislation that had handily sailed though both houses of the legislature. The intent of that legislation was to preserve NeuropsychQMEs. One of the arguments in favor of so doing was that this group of experts was especially well versed in the evaluation of patients with Traumatic Brain Injury (TBI) and had been on-the-job as "licensed health care providers" for 22 years. Their special expertise was applicable for injured workers who sustained cerebral concussions and whose medical plight thereafter became known as post-concussion head syndrome. Since the release of the movie, CONCUSSION, this topic has become a favored conversational subject.

Now comes AB 2086 as an urgency measure sponsored by the California Society of Industrial Medicine and Surgery (CSIMS) and by the California Psychological Association (CPA). The California Neurology Society (CNS) is in support. The California Medical Association (CMA) which submitted amendments which were accepted is neutral on the bill although this writer and others will continue to nudge CMA  for full-fledged support. So far the bill has passed the Assembly Appropriations Committee.

The bill's intent is to restore the right of injured workers with TBI to get workers' comp evaluations from clinical neuropsychologists within the QME (Qualitative Medical Evaluator) framework. Governor Brown's veto last year of AB 1542 (Mathis & Cooley) which would have restored NeuropsychQME status in 2015 instead essentially abolished the NeuropsychQME category at the request of Industrial Relations Director Diane Baker -- at least for the time being. 

AB 2086 seeks to set aside this veto. In making her original recommendation last year Baker overrode the professional opinion of the California Psychology Association. Her reasons for so doing were never well understood but were thought to reflect her desire to maintain departmental authority. Governor Brown, for political reasons still not entirely known, obligingly followed suit. The legislature had the chance to override the veto but declined, preferring to develop new legislation this year. That is the basis for AB 2086.

The wisdom of this choice is that AB 2086 amends current law so that once passed it'll no longer be possible for Industrial Relations directors to obstruct the neuropsych evaluation process by refusing to recognize NeuropsychQMEs. It would "ensure that lack of official Medical Board of California (MBC) recognition cannot be used as grounds to not appoint certain physicians as QMEs" and for the purposes of QME designation that those specialties recognized by the administrative director would be recognized. 

References

California Medical Association Legislative Hot List, 4/26/16

The Weinmann Report, www.politicsofhealthcare.com, 10/15/15

Will the Gov. Avoid a Collision in Health Care Policy?,  workcompcentral, 10/07/15, by Dr. Robert Weinmann

Gov's. Veto of AB 1542 Leaves Brain-injured Workers to Fend for Themselves, workcompcentral, 10/09/15, by Steve Cattolica, AdvoCal/CSIMS

Neuropsych Bill Headed to Governor, CSIMS, 9/01/15

ADDENDUM, 7 MAY 2016

On 28 April 2016 the California Assembly passed AB 2086 by 76-0. The authors are Ken Cooley, D-Rancho Cordova, and Devon Mathis, R-Visalia. If signed into law the bill would become effective immediately. The bill has been introduced to the State Senate. We do not have information so far on committee assignment. Remember that last year Governor Brown vetoed a similar bill that handily passed both houses of the legislature. 

Trigeminal neuralgia -- one helluva headache! One helluva denial of care!

President Obama made this ringing declaration when he was promoting the Affordable Care Act:  "I will ensure that no government bureaucrat gets between you and the care that you need." 

Now comes Trigeminal Neuralgia,  known in medical neurological parlance as a particularly vicious type of headache, so severe  that some victims contemplate suicide. All the same there is a treatment for this disease that is remarkably successful in most cases. The usual treatment is with a medicine known as tegretol. Today's story is about a star-crossed patient who was unable to tolerate tegretol and what happened to her when Gubbamint Bureaucrats got their hands on her case.   

Initially, the patient was overjoyed. Her debilitating headaches evaporated under treatment with tegretol. Imagine, then, her consternation when she developed an allergic reaction to the medication. The allergic reaction included skin rash and an alarming development of abnormal hepatic function tests. There was no choice but to discontinue the tegretol. 

Doctor X replaced the tegretol with gabapentin which also worked. However, there were physiological non-allergenic side effects, e.g., dizziness, impaired balance, and sedation. So now the second successful medication had to be replaced. This step was taken with an extended release form of gabapentin known as Gralise. Medicare approved the use of Gralise but after a year another application to continue use of this medicine had to be submitted to the Center for Medicare and Medicaid. The Center for Medicare and Medicaid then rejected the proposed use of Gralise even though it had now been the patient's chief headache prevention medication for over one year. 

The reason was that FDA had approved Gralise for Herpetic Neuralgia only, not for Trigeminal Neuralgia. On this flimsy basis, Medicare in one fell swoop allowed the misery of intractable headache to invade this patient's life once again. Use of the medication for a different type of pain was called "off label" and subjected to unthinking automatic rejection. 

Doctor X appealed at the state level. In California the law allows continuation of care under such circumstances, e.g, AB 974 (Gallegos), a managed care reform bill that requires managed care plans to continuously provide prescription drugs. Unfortunately, this state legislation can be overruled by federal law that precludes "off label" prescribing. The next step was appeal to the Medicare Appeals and Grievance coordinator who pointed out that Medicare only allows medications to be covered on Part D when the FDA has approved the medication for that specific use -- in this case FDA had approved the medication for one form of neuralgia but not for another. Next, Doctor X sought a hearing before a judge in the Office of Medicare Hearings and Appeals. The case was made that FDA approved the medication for one form of neuralgia so it was reasonable in this case, especially since the medication had worked well for this patient for over one year, to allow renewal. 

Unfortunately, logic and science lost out to rule-making and semantics. The court ruled that the patient could not have the Gralise covered under Medicare. The judge's final letter of denial was issued on 2/18/16. The question arises as to what extent the federal system is responsible for denial of care when an adverse event occurs as a result of governmental ineptitude. 

In 1999 the Oregon Board of Medical Examiners disciplined a doctor for insufficiently treating pain. In discussing an analogous situation in California in 1979, Dr. Wm. Steinmith wrote that "a variety of official police bureaus -- under the rubric of protecting the public from professional abuse and abusers -- are rapidly destroying the professional foundations of humane and rational medical care." This author's opinion is that the Center for Medicare and Medicaid acted arbitrarily and wrongly in this case. 

Previously, The Weinmann Report, www.politicsofhealthcare.com, 3/18/14, and workcompcentral, 3/26/14, showed how an insurance company's Utilization Review company declined authorization of analgesic medication. 

This writer's finding is that the newest epidemic is the denial of medications by one or another form of Utilization Review at both state and federal levels. Physicians will take the blame while patients get the shaft. We need to hold the presidential podiatry to the fire on this issue lest all of us in due course get burned by the "government bureaucrats" from whom President Obama promised to protect us. 

References

"Utilization Review: Hypocrisy in Velvet Gloves," workcompcentral, 2014-03-26 and The Weinmann Report, www.politicsofhealthcare.com, 2014-03-18;

The Hill Newspaper, Washington, DC, 9/16/09, "What Obama should've said about health reform," by Robert L. Weinmann, MD;

Headache Quarterly, V. VII.  #4, 1996, "Predatory Policies in Health Care: Headache Patients as 'Marks,' " by Robert L. Weinmann, MD;

New York Times, National, 09/04/99, "Oregon Board Disciplines Doctor for Not Treating Patients' Pain;" 

San Francisco Medicine, "Professional Judgment," July 1979, by William Steinsmith, MD. 

MEDICAL STAFF VOTES AGAINST MANDATORY MOC (MAINTENANCE OF CERTIFICATION REQUIREMENTS)

BOARD CERTIFICATION: SHOULD THE GENERAL PUBLIC HAVE AN INTEREST IN THIS ARCANE SUBJECT? IN THE OPINION OF THIS WRITER, THE ANSWER IS YES. The extravgant remuneration of American Board of Medical Specialty (ABMS) CEOs and presidents has been disclosed to be as high as $1.3 million at the American Board of Pediatrics (ABP), $681,000 at the American Board of Internal Medicine (ABIM), and over $800,000 at the American Board of Psychiatry and Neurology (ABPN). This level of remuneration requires high costs for Maintenance of Certification (MOC) and for study programs acceptable to each of the boards. These requirements in turn cut down on the amount of time practicing physicians can spend with patients and their own families. MOC requirements unnecessarily increase physicians' administrative costs, in turn helping to drive medical costs ever upwards. To date there is no evidence-based science showing that these requirements improve medical care. Here is how one medical staff recently dealt with this matter (the following is verbatim reproduction of the resolution passed by the hospital's medical  staff). 

ARGUMENTS AGAINST

THE BYLAW AMENDMENT REQUIRING BOARD CERTIFICATION 

Several concerns have been raised as to the way this amendment to the medical staff bylaws has been written

#1  Requirement for board certification is NOT the community standard.

#2  New physician members who subsequently allow their board certification to lapse or marginally fail to pass recertification will immediately lose their medical staff privileges.

#3  The logistics of maintaining continuous active certifications in multiple boards (as required by certain subspecialties) carries with it the very real risk of a possible time gap in active certification (with a resultant loss of privileges)

#4  Physicians at the mid-point of their careers, who are otherwise well qualified in their specialty and who have previously passed their boards (but did not recertify) would not be eligible to apply for medical staff privileges.

#5  Current physicians who fail to complete the re-application process or pay their medical staff dues in a timely fashion automatically lose their medical staff membership and are REQUIRED TO FILE A NEW APPLICATION.  These long-standing members may well be subject to the new requirements.

#6  It is not unthinkable that the new medical staff members (who are subject to these strict requirements) will quite reasonably feel that ALL medical staff members should be bound by the same mandate. These new members may ultimately be represented in such numbers that they tip the balance and there is a resulting Bylaw change to that effect. 

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Editor's comment:  Our recommendation is that physicians opposed to mandatory MOC adopt this amendment or one similar to it at their own hospitals. The physician who led this charge against mandatory MOC was James B. Weidner, MD, specialist in cardiovascular disease and internal medicine. The hospital is Regional Medical Center in San Jose, previously known as Alexian Brothers.

Meanwhile, at the Union of American Physicians and Dentists (UAPD) Triennial, the UAPD passed two resolves of interest concerning MOC. Resolution # 5 states that "Medical Staff Bylaws allow medical staff membership for physicians who meet the minimum state requirements for the position (board certificate or eligibility is not a hiring requirement)." Resolution # 10  states that "UAPD negotiate for reimbursement of the Maintenance of Certification/Fees Programs by the state in our contract." 
   

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References:

Change Board Recertification, http://www.changeboardrecert.com

Open Letter to the American Board of Pediatrics, http://rebel.md/open-letter-the-american-board-of-pediatrics/

"Maintenance of Certification (MOC) and the IRS: where money and power meet," 7/29/15

"Maintenance of Certification, a rising business opportunity," 5/15/2015

"When does a $681,000 salary require additional incentive compensation?,"  4/17/15

"Resolutions passed at the UAPD 2015 Triennial," December 8, 2015



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