BURNOUT AND THE PACIFICATION OF PHYSICIANS

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The "Pacification of Physicians" is the process used by insurers, adjusters, politicians, and others to take down physicians who fail to behave like lapdogs to paymasters. 

"Burnout" is the name given to physicians who because of increasingly arduous demands quit the profession, at least, the care-giving part of it.

Physicians, afraid of consequences if they speak up, step aside from controversy.  That's when administrative managements rush to the front. When that happens physicians find that their treasured professionalism gets trampled. Consultatons are simply eliminated from Medicare. In Workers Comp, Utilization Review is used to demolish treatment protocols.             

Physicians have had a modicum ot success in repelling the likes of Maintenance of Certfication (MOC) even though opposed by smooth talking para-professionals buttressed by self-inflation and the crafty infusion of money advanced by slick corporate interests. 

As for "burnout" talk, The American Medical Association (AMA) points out that burn-out of physicians leads to increasingly early retirements. The American Academy of Neurology (AAN) tags along, going so far as to install a Burnout Task Force. A recent quote from NEUROLOGY TODAY was that women are more burned out than men. It was discovered that women who responded to a survey on burnout were about 7 years younger than their male counterparts. Factors contributing to burnout were listed, e.g., "emotional exhaustion" and "fatigue." The link to disappointing remuneration -- we mean payment -- was acknowledged.

It was mentioned that male neurologists tended to take refuge in personal hobbies while the women shifted their attention to teaching and administration. In a symposium sponsored by the Union of American Physicians and Dentists (UAPD) the increased proclivity to suicide was discussed. In fact, the UAPD recently sponsored an interdepartmental CME on "burnout" at Harbor Hospital. In NEUROLOGY TODAY, 11/15/18, it was stated that "women were more likely to mention suicidal ideation." Men tended to dwell on the suicides of colleagues as opposed to their own morbid thoughts. 

In PRACTICAL PAIN MANAGEMENT, April/May 2018, the AMA was credited with helping physicians "by advancing initiatives that enhance efficiency, professional satisfaction, and the delivery of care." For this writer, that's hogwash, not clout. It is clout that's needed, not effete efforts from the parlor.

While debate and legislative effort has a place what physicians need is a fight-back model. That means organizational protests and job actions. Active protest is the name of the game. Absent a high level of protest physicians will end up providing increasingly efficient and depersonalized care at their own expense. That means squeezing more and more patients into increasingly narrowed time slots. Legislators haven't a clue because nobody tells Senator Blowback that he has used up his RVS allotted time and that he has to get out so the next patient can enter. 

The inevitable result is disappointment among physicians and patients alike. Better to follow the example of Macbeth: "Whiles I see lives the gashes do better on them." 

Physicians need to adopt this combative mode while there's still a combat in which to engage. 

References

UAPD Triennial Convention, 26 Oct 2018

Documentary movie on burnout, "Do No Harm," by Robyn Symon (feature length film exposing the silent epidemic of physician suicide, winner of 2016 Roy W. Dean Grant for feature film  documentary)

Practical Pain Management, April/May 2018, "Dousing the Physician Burnout Epidemic: An AMA Perspective," by David Barbe, MD


Neurology Today, 15 November 2018, "Feeling Burned Out? Why Your Age and Sex May Make a Difference," by Gina Shaw

DUTY OF CARE VERSUS UTILIZATION REVIEW: Corrective legislation is indicated (revised from earlier article)

Worker's Malpractice Action Against UR Doctor Comes to an End, viz., workcompcentral, 2018-16-12. This unfortunate decision has triggered interest for new legislation to correct wrongful and abusive denials of care to injured workers. 

The gist of this case (King v. CompPartners, No. E063527, 10/10/18), involves the unfortunate abrupt and arbitrary discontinuation of patient Kirk King's klonopin with the even more unfortunate triggering of four epileptic seizures. 

For review, here's the facts: Kirk King suffered back injury at work. He was prescribed klonopin to relieve anxiety and depression caused by chronic back pain. In July of 2013 the UR physician working for Comp Partners decertified the medication without advance preparation such as advising the patient, preparing for alternative treatment, or warning the patient about sudden withdrawal. King then had four epileptic seizures. King filed suit based on negligence, malpractice, and emotional distress. Defendants demurred, the Superior Court Judge sustained the demurrer, the 4th District Court overturned the Judge and then the California Supreme Court overturned the District Court by ruling that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system." The case was remanded to the District Court. King was barred from pursuing a tort claim. So much for Kirk King and his seizures? Maybe not. 

Although the ruling appears to establish that the alleged malpractice was protected by law and is unassailable in the courts, there's a game-changer, e.g., Justice Mariano-Florentino Cuellar's statement said that the protections for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

Language to challenge legislators to change the law so that Utilization Review doctors are bound by the same Duty of Care as Treating Physicians has already been submitted to selected legislators. 

It makes no sense that treating doctors are subject to this level of practice whereas the UR doctors who may alter their treatment decisions are not. 

References

Workcompcentral News, "Worker's Malpractice Against UR Doctors Comes to an End," WEST, 2018-10-12 (readers can click on the full court decision at bottom of this reference)


Workcompcentral Columns, "UR Physicians Do Not Owe Injured Workers Duty of Care," 2018-09-18 (reprinted from The Weinmann Report, www.politicsofhealthcare.com, 2018-08-18)

Utilization Review Physicians Do Not Owe Injured Workers "Duty of Care"

That Utilization Review (UR) physicians do not owe a duty of care to injured workers can reasonably be deduced from the recent California Supreme Court decision which trashed Kirk King's tort claim over an incorrect and harmful UR decision.

In a nutshell, Kirk King sustained back injury in 2008 that led to chronic pain associated with depression. Klonopin was prescribed by his treating physicians who interviewed and examined him. He did well on this medicine for two years. That's when Dr. Naresh Sharma decided without interviewing or examining the patient that the klonopin was not medically necessary. The hitherto authorized medication was then summarily discontinued. The sudden withdrawal of medication led to King's having four seizures. 

King and family asserted that Dr. Sharma and his Utilization Review Organization (URO) employer had acted negligently and since Sharma was working for the URO known as CompPartners both deserved to be disciplined and sued.

Not so said the court. Hiding behind the mantle of law, the justices totally ignored the patient's plight. Their ruling side-stepped the tort issue and said instead that the Exclusive Remedy for this type of dispute is entirely within the purview of the utilization review process. Too bad for Kirk King. All  the better for the corporate interests and the employers that control and operate UROs.

On the other hand, the court noted the utilization review process may not be working as it should -- an open invitation for new legislation.

Justice Mariano-Florentino Cuellar was quoted in Workcompcentral, 8/24/18 by Greg Jones as saying that protections for injured workers "may not be set at optimal levels and the Legislature may find it makes sense to change them"-- another open invitation for new legislation to revisit the authority of utilization reviewers and their UROs. 

Changes should be introduced for legislation in 2019

Using Gut and Amend techniques as mentioned in our previous column on SB 790 is one way these changes can be made. We would of course expect employers to suffer their own seizures at the thought of it. 

Here's our Big Five of Recommended changes: 

Change Number One: UR doctors should be obliged to carry the same duty of care that is now borne by treating doctors. 

Change Number Two: UR doctors should be licensed in the states in which they provide UR opinions and should be subject to that states medical board for discipline just as treating physicians already are.

Change Number Three: UR doctors should be obliged to interview and examine their patients.

Change Number Four: Employers should be penalized if they allow treatment to be altered or terminated before a replacement care plan has been approved by the treating physician(s). Actually, there already is such a provision only as in the Kirk case it is usually ignored.  This example shows how laws without teeth can safely be ignored. 

Change Number Five: Wrongful and/or harmful UR decisions should increase the injured worker's disability payments.

References

"High Court Rules Exclusive Remedy Precludes Tort Claim Over UR Decision," workcompcentral news article, Greg Jones, 08/24/18

"Utilization Review as a gift to insurance companies," posted by bobweinmann, 03/11/2012, The Blog/Total Capitol

"Utilization Review: Hypocrisy in Velvet Gloves," column in workcompcentral, 03/26/14 (also posted on The Weinmann Report, www.politicsofhealthcare.com) 

SENATE BILL 790 (McGuire) BITES THE DUST

Our decidedly negative story on SB 790 (McGuire) about gifts and benefits in medication prescribing and dispensing was published on 15 May 2017. We asserted that the bill actually showed how little the author knew about drug pricing and how physicians prescribe. Senator McGuire's press release at the time said that the "interaction with the pharmaceutical industry is associated with ... unnecessary drug prescriptions ... borne by the patient and less availability of generic drugs." 

McGuire and crew didn't mention then that the mark-up or profitability of generics was often more than trade name medications or that drugs that were generic equivalents might not be "bioequivalent."

McGuire said at the time that data from 2014 showed that California physicians received the highest number of gifts and payments from pharmaceutical companies of any state. 

We recommended that the author take his bill back to the drawing board. We're glad to say he has now dismantled the drawing board. 

According to Senator McGuire's office SB 790 is being set aside so that new language on an unrelated topic such as Natural Resources  can be inserted. The current text of SB 790 will be tossed and replaced with language on something else -- THAT, dear reader, is how "Gut and Amend" bills are concocted. 

One of the first organizations to oppose SB 790 was the California Neurological Society (CNS).  Kudos to CNS for foresight, action, and success. 

References

"California Senate Passes Ban on 'Gifts' to Physicians," Thomas Sullivan, from POLICY  AND MEDICINE, 05/04/18

"Senate Bill 790 (McGuire): Me too legislation on gifts and benefits," The Weinmann Report, Robert L. Weinmann, MD, Editor (www.politicsofhealthcare.com), 05/15/17

KP PUBLIC AFFAIRS ASSUMES ADVOCACY AT CSIMS

The California Society of Industrial Medicine and Surgery (CSIMS) aligned with AdvoCal represented private physicians engaged in industrial or occupational medicine for 37 years. No more. The new CSIMS player for association management and legislative advocacy is KP Public Affairs -- the arm of KP Public Affairs that will lead this effort is Bryce Docherty, an experienced lobbyist and KP Public Affairs partner. We wish him well.

KP will be picking up some major challenges, e.g., the Division of Workers Compensation (DWC) has made it known for several months that it wants to change the medical-legal fee schedule. DWC denies this move is a ploy to lower payments (neither do they imply that they're gonna' raise 'em either!). Instead, DWC blurts out that all they wanna' do is "clarify the use of complexity factors relating to causation, medical research, record review and apportionment." 

In translation, this language means that DWC wants to make it increasingly difficult to use billing codes that pay more than the minimum allowed. In other words, it would not automatically be a complexity factor that a doctor were sent 40 or 50 or even 100 lbs. of medical records -- no matter how many hours it took to look 'em over and comment accordingly. Likewise, DWC reportedly also intends to make the issues of causation and apportionment more difficult than they already are -- no matter how much so doing harms injured workers whose access to high powered specialty reviews is likely to  be compromised by such attempts. 

That is why Docherty was quoted by Elaine Goodman in workcompcentral, "New Management Hopes to Bring 'Renewed Energy' to CSIMS," 2018-08-13 as saying "We're focused like a laser on the med-legal fee schedule issue."

Docherty and company will also face other long standing issues one of which is wrongful denials of medical  care by Utilization Review (UR), often by physicians who are not even licensed in California and who therefore are not subject to review or discipline from the California State Medical Board or for that matter from any other state medical board since out-of-state medical boards do not have jurisdiction in California.

Likewise, the Utilization Revew reliance on the Independent Medical Review (IMR) process, mostly regarded as a rubber stamp for the vast majority of UR denials, needs to be re-assessed. In fact the IMR process resembles the secret dossier process of pre-revolutionary France when nobles could file "lettres de cachet" which meant that an arrest warrant could be issued without the  accused knowing the identity of  the accuser. In workers comp, the doctor who gets an IMR denial isn't told who issued the denial. Rebuttal is effectively foreclosed except if one can argue "prejudice" which one can't reasonably do without knowing who the accuser is. 

We trust that the KP Public Affairs team will dig into all of these issues (besides Docherty that includes Christina DiCaro, Alex Torres, and Tammy Hodgkin). 

Stay tuned: we'll expand this issue into "Lawmakers Want Auditor to Review Timeliness of Care," workcompcentral, 2018-08-07). Clearly, the rate at which care prescribed by treating physicians and their consultants is denied is an impediment to timely care). 

...  to be continued (in meantime, check out "When Carriers Ignore Judges' Order, workcompcentral column, Weinmann, 2018-06-18). 

Robert L. Weinmann, MD, Editor (The Weinmann Report, www.politicsofhealthcare.com, includes past articles on utlization review denials) 

CAN INSURANCE COMPANIES DISREGARD ADMINISTRATIVE LAW JUDGES' (ALJ's) ORDERS?

When can insurance companies ignore judge's orders? Anytime they want to it appears. Following is a case example (this piece is a follow-up and revision of the original article posted last week. It is based on newly received information including a recent ALJ decision).

Let's start with the Notice of Hearing dated 12/9/13.  At the bottom of the document is the signature of a Workers' Compensation Administrative Law Judge. The document says "Defendants agree to authorize Botox injection." The decision is made based on a doctor's report dated 8/2/13. The document also states that the issue at hand is a "Dispute Resolved by Agreement." 

Now, four and one-half years later, the patient states that the injection has still not been done.  

The Proof of Service shows that Minutes of Hearing were served on the interested parties on 12 December 2013. In this post we're not naming the parties or even the insurance company since to the best of our knowledge it is not uncommon for insurance companies to ignore judicial orders. 

The patient was injured in a five-car motor vehicle accident in 1993. The injured party was rear-ended twice and received hospital care. She tried to return to modified work. When her production didn't match pre-injury standards she was fired. Treatment and hospitalization were originally accepted by the insurer. Injured body parts were adjudicated and seemingly were determined to include the lower back, neck, knees, and shoulder. Our documentation reflects diagnoses of cervical disc disorder with myelopathy with severe disc protrusion at C6-7 with progressive degenerative changes superimposed at the injury site. The clinical note at the time said that patient "needs cervical spine decompression because of increasing spinal cord compression and ... is one fall away ... away from quadraplegia (sic)." Despite the gravity of her condition the neck surgery was repeatedly delayed. It was finally done in August of 2017. 

With reference to the lower back patient had lumbar laminectomy at L5-S1, lumbar epidurals, and a caudal block. Patient's left knee sustained meniscal tear. She had three surgeries for right knee meniscal tear. She sustained derangement of the left shoulder. 

Her treating physician or PTP recommended botox injection. This treatment was litigated and eventually supported by the ALJ whose order dated 12/9/13 seems to have been ignored by the insurance company. How is such a scenario possible? Can insurance companies decide which judicial orders they'll follow and which they won't?  

Addendum 7 June 2018

The latest ALJ order is from May 1st, 2018.  It names a specific physician as " authorized to continue to serve as PTP." The victim (formerly, we said "the patient") said that it took over a year for the insurance company to pay her bill and that "due to their mishandling of billing and payments he (the physician) will not be moving forward with me as a patient." The applicant who now lives out of state said that none of the doctors she's talked to are willing to accept California Workman's Comp Cases. It appears that the legally designated PTP has stepped aside. The patient-applicant is now in the proverbial cold. 

This turn of events, coupled with the facts that the ALJ decision of 12/9/13 said that "defendants agree to authorize Botox injection" and that this injection has still not been done after nearly 5 years shows us how some patients get hung out to dry. 

WCAB should assume jurisdiction, perhaps via the equivalent of en banc jurisdiction, and see to it that this patient gets the care that has been authorized by two judicial decisions, the first for botox injection, the more recent for future medical care. 

MALPRACTICE CASE SOON TO BE DECIDED BY SUPREME COURT

Malpractice reform in Utilization Review is again on the line, this time because the California Supreme Court has scheduled hearings re  King v. CompPartners on May 29. The case resolves about the rights of an injured worker when UR denies access to treatment ordered by a California licensed  physician and when, as a result of this medically wrong UR decision, an injured worker is not only denied treatment but also suffers harm as a result of the combined negligence of UR and the insurance carrier that benefits financially by being absolved of its obligation to pay for care.


The current issue revolves about the decision of an insurance company to stop paying for Kirk King's klonopin. The insurance company's decision was made on the basis of a utilization reviewer's wrongful judgement that could in due course prove harmful to physicians engaged in UR. Our information is that the UR doctor made an incorrect and harmful decision that was happily adopted by the insurance company. This quick-step could end up with a two-step revision of UR, namely, requiring that UR physicians be licensed in the states where their decisions are used and that they carry malpractice insurance in those states. This publication favors both steps. 

The California Workers Compensation Institute  (CWCI) has argued  that UR is not medical practice, a clearly absurd position to treating physicians and to the patients who are harmed. This fatuous argument was supported twice by Gov. Schwarzenegger and once by Gov. Brown who vetoed bills that would have implemented state licensing for UR and IMR (Independent Medical Review) doctors. Brown's reasoning was more tortured than Schwarzenegger's -- he said that requiring UR doctors to be licensed "would be an abrupt change and inconsistent with the manner in which utilization review is conducted by health care service plans under the Knox-Keene Act and by those regulated by the California Department of Insurance."

THAT is just the point: UR and IMR decisions that deny indicated and necessary care are harmful intrusions into medical care and should be squashed. These denials require the abandonment of the duty of care owed to injured workers. CWCI's reading of the law is frivolous, legalizes abandonment of sick and injured workers, and deserves to be repealed along with enabling law created by SB 863 --  which added insult to injury by adding IMR to the Utilization Review process.

In a nutshell, in the unfortunate case of Kirk King, the insurance carrier stopped payment for prescribed medication based on  the UR doctor's report. The result was that the patient suffered epileptic seizures.  

The opinion of this publication is that the injured worker was abandoned and that the UR system and the insurance company were at fault and opened the door to the malpractice litigation now in progress. The harm that befell Kirk King is proof that the UR system practiced unsound and negligent medicine. 

The Supreme Court should find that UR doctors owe a duty of care to injured workers and that in the King case UR and the insurer were negligent. Such a decision will restore equity between treatment and utilization review. 

References

High Court to Hear Arguments in UR Malpractice Dispute May 29, Workcompcentral, 2018-05-11

Malpractice by Utilization Review?, The Weinmann Report, 12/13/2014 (www.politicsofhealthcare.com)

Malpractice Reform Makes it to California Supreme Court, The Weinmann Report, 01/02/2017

CALIFORNIA'S PROPOSED DIALYSIS INITIATIVE (Proposition 8)

The California Dialysis Initiative is up for vote in November. Its avowed purpose is to set arbitrary limits on what insurance companies pay dialysis clinics for actual patient care. The initiative sounds like it might be a protective device shielding patients from being overcharged. It isn't.

The dialysis clinics will be obliged to pay physicians and other providers less if they want to maintain current levels of corporate  profit. At the same time, to keep administrative charges intact, the clinic administrations will be obliged to scramble their physicians and require them to see more patients per unit of time.  It's called "efficiency." 

The California Medical Association is opposed to the initiative  because it poses potential harm to patients, but probably also because it poses financial hardship on large clinics and healthcare plans. For instance, healthcare contracts to provide care would have to be revisited and revised downwards. Current contracts would have to be renegotiated.  Physicians, through no fault of their own, would be obliged to bear the brunt of reduced remuneration to keep the money flowing to the upper echelons of administration. That's how business is done in America, isn't it? 

Once profitability is reversed recruitment of providers will drop. The trouble is that dialysis patients aren't in-and-out customers -- they often need lengthy visits, often more than occasionally -- so in the final analysis this initiative is against their best interests. That's why this initiative needs to go back to the drawing board.  

SB 1303 (Pan and Galgiani) is a step forward

SB 1303 is follow-up legislation to SB 1189 (Pan) and expands upon the partial success of the earlier bill.This legislation, initially sponsored by the Union of American Physicians and Dentists (UAPD), is currently co-sponsored by the California Medical Association (CMA). It requires counties with 500,000 or more population to rely on physician-MDs or DOs who are Medical Examiners to do forensic autopsies. It does away with the outmoded and politically orientated Sheriff-Coroner system. All that is explained in our earlier reporting illustrating how cover ups of wrongful death could happen under the Coroner system. 

The UAPD Legislative Report, 4/28/2018, said that UAPD President Stu Bussey, MD, JD, and Bennet Omalu, MD, MBA, of movie Concussion fame, "vociferously advocated on the need for this bill" before the Senate Governance and Finance Committee. Clearly, their testimony was convincing. 

The CMA Legislative Hot List, 5/3/2018, states that the San Joaquin County Board of Supervisors recently eliminated the office of the sheriff Coroner and adopted a Medical Examiner model. CMA, with deserved self-praise, said "the pressure from this legislation clearly influenced the county's decision." 

The Weinmann Report, accepts plaudits, too. The California Society of Industrial Medicine and Surgery (CSIMS), the California Neurology Society (CNS), and others who saw the need and supported this legislation also deserve recognition. 

As we go to print, our information is that the bill is in Senate Appropriations. Physicians should write, e-mail, or fax Doug Chiappetta who is handling the bill for the UAPD and Stuart Thompson who is doing the job for the CMA to give this bill high priority. SB 1303 is a step forward in restoring professional prerogatives to properly educated professional persons.

References

Dr. Richard Pan Introduces Bill to Boost Public Confidence in Autopsy Reports, 20 Feb 2018, 
contact Shannon Velayas Martinez, 916-271-2867

The Weinmann Report, "SB 1303 would replace coroners with medical examiners," 2/25/18

The Weinmann Report, "forensic autopsy bill clears senate moves to assembly, 06/02/16

The Weinmann Report, "When is death by drowning described as 'undetermined'? " 5/30/16

The Weinmann Report, "Probable drowning," 5/23/16

CSIMS, "Issue of Interference in forensic autopsies isn't a new issue," 12/20/17

AB 3087: A STEP BACKWARDS

If  AB 3087 (Kalra) becomes law, California will be obliged to appoint a commission to set prices and ration care. Access to care will become increasingly unavailable as costs are shifted to out-of-pocket expense.  How's that for a step backwards?

AB 3087  is still in flux, but here's what we know so far.

1) an appointed commission (nine members) will have the authority to set prices for medical and surgical services that are not already under government control. The idea is to squelch commercial health care such as insurance companies who have earned their way into the public's wrath. It would also put a huge crimp into Kaiser and like plans. It is rationing by government edict.

2) Like the flawed single-payer plan, SB 562, it would exclude the very persons most knowledgeable about health care from participating in its governance. None of the nine appointees need be physicians.

3) True to the principles of hypocrisy in government, the bill makes provision for lawyers and even for lobbyists to be reimbursed.

According to the Legislative Counsel's Digest, 03/23/18, "Existing law, the Health Data and Advisory Council Consolidation Act, requires certain health facilities and freestanding ambulatory surgery clinics to file specified reports with various patient and health data information with the Office of  Statewide Health Planning and Development ... this bill would require a health facility to  report specified reimbursement information for each procedure performed including Medicare reimbursement on a fee-for-service basis (italics added)."

My comment: the bill is intended to establish "caps" and puts the power to do so in the hands of political appointees (much as was the case in the recently repealed section of the Independent Payment Advisory Board under the Affordable Care Act). The broad power of this bill is that it establishes fixed fees for hospitals, health care plans, and providers and socks the difference to out-of-pocket payments by the patients themselves. The bill in its current form allows payments at 100% of Medicare -- but tomorrow's 100% could be substantially less.

Proponents include SEIU, CAL Labor Fed, Unite Here, The Teamsters, and Health Access That the bill could harm their members akin to how SB 863 did does not seem to be an issue with Big Labor.

Expected opposition is likely from the California Medical Association, the California Neurology Society, and others representing the organizations about to be stepped on.

Insiders to the politics of healthcare have asked this writer how the Union of American Physicians and Dentists who belong to AFSCME, AFL-CIO will deal with this issue. The UAPD is a part of organized labor and at the same time represents a few thousand state and county employed physicians, some clinics and private practice. Has either group -- SEIU,  CA Fed, Teamsters et al, or the CMA consulted with the UAPD which has interests on both sides (physicians who are labor union members) of this issue?

We'll letcha' know as soon as we know! Stay tuned! To have your own say on the matter, here's a tip: this bill is scheduled to  be heard by Assembly Health Committee on 4/24/18. 

Update, 4/11/18: AB 3087 is probably beyond amending. It's likely that proponents will amend suggested amendments to keep  this blunderbuss approach to corrective legislation as untouched as possible, My recommendation is to oppose. Stay tuned. More to come. Recommend readers write their representatives prior to hearing and not wait for organizational replies - but copy the organizations to which you pay dues and take note of what they do and to whom they listen, -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com 

Updated update, 4/24/18: AB 3087 handily cleared the Health Committee on an 8 to 4 vote.  Some of the aye votes were accompanied by misgivings on the part of committee members who said they might still vote against the bill on a floor vote unless further adjustments, unspecified,  are made. -- RLW, Editor, The Weinmann Report, www.politicsofhealthcare.com

SB 1303 (Pan & Gagliani), Amended in Senate

SB 1303 was introduced by Senator Pan on 02/16/18.  Senator Gagliani has joined as coauthor. The original bill had some loopholes (see references below) which have now been closed by language amended in the Senate on 03/22/18. The amendment is directed to the office of Medical Examiner (ME) who "shall be a physician and surgeon licensed to practice medicine in this state, or an osteopathic physician and surgeon licensed to practice osteopathic medicine in this state." 

Readers of this blog know that the state license issue has been paramount for this column. We're glad to see it resolved. Kudos to Pan and Gagliani. 

Unfortunately, still unresolved is the issue of Utilization Review and Independent Medical Review physicians who are not licensed in California but who are nonetheless allowed by law to deny authorizations for diagnostic tests and treatment for injured workers. 

References

"Probable Drowning (SB 1189,  Pan & Jackson)," The Weinmann Report, 05/23/2016

"SB 1303 (Pan & Gagliani) would replace coroners with medical examiners, The
Weinmann Report, 02/25/18

"Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody," The Weinmann Report, 02/19/18

Update on SB 1303 as of 11 April 2018: this bill just got referred to a second committee, Public Safety. Legislators call that "double referred." Depending on your point of view, double-referral is either a second chance or double jeopardy. Chair of Public Safety is Senator Nancy Skinner, Vice Chair is Sen. Joel Anderson, other State Senate members are Steven Bradford, Hannah-Beth Jackson, Holly Mitchell, Jeff Stone, and Scott Wiener. Our Sacramento pundits say Stone and Anderson are likely to vote no --- they're not sure about the others. Are you? 

WHAT HAPPENS WHEN MISTAKES IN LEGISLATION GET SIGNED INTO LAW? SB 1303 (Pan & Gagliani)

Physicians who accept injured workers as patients know that adverse Utilization Review (UR) decisions can devastate well planned diagnostic and therapeutic programs for injured workers. Some major facilities won't tolerate this risk and refuse to accept injured workers (this blog published a letter from Stanford saying just that -- see blog) 

Utilization Review is required in workers comp. It works like this. Doctor A interviews and examines Injured Worker B and decides that certain diagnostic tests and treatment are indicated. But in workers comp and in other insurance venues that decision gets forwarded to UR doctors who do not interview or examine the patient. Instead, they review the medical record and decide about authorization for the recommended diagnostic test and/or treatment. Absent this authorization the treatment program is stopped dead in its tracks. 

Under California law doctors who do utilization review need to be licensed physicians; however, the law does not say they must be licensed in California.This oversight has led to countless situations where  doctors not licensed in California reject treatment plans proposed by doctors who are licensed in the state. The rejections may be appealed but in the vast majority of cases the rejections are upheld. It would be simple enough to correct this oversight by amending the law so that UR has to be done by California licensed physicians. Insurance companies oppose such changes. 

California-licensed physicians are subject to discipline by the state medical board which has, as a matter of fact, recommended that all physicians doing UR on California cases be licensed by the state and be subject to discipline by the state board. By contrast, non-California licensed physicians are not subject to this state's medical board so are not subject to state board discipline in California. They are also not subject to discipline by their own state boards since California cases are out of their jurisdictions. This situation has led to frequent appeals, delayed care, further injury to untreated injured workers, and an exodus of doctors from industrial medicine (workers comp). 

Now comes SB 1303, introduced by Dr. Richard Pan to make sure that forensic autopsies are conducted by licensed physicians instead of by non-medically trained persons who've been designated or elected as coroners. However, as the bill is currently written, the requirement is for this job to be done by a "medical examiner ...  a licensed physician and surgeon duly qualified as a specialist in pathology."  No mention is made of licensure in California. At least, not yet. 

In order to avoid travesties akin to what has been happening with UR for the last several years my recommendation is that medical examiners (MEs) shall meet the qualifications as already stated in SB 1303 and to these requirements be added mandatory licensure in California with the same oversight by the medical board as is provided for physicians licensed in California. No residence requirement is sought, only medical licensure in California.

Otherwise, in highly disputed forensic cases such as we've described in previous editorials, the door is opened for interested parties  to seek out medical examiners who are not subject to the state medical board. The idea would be to secure an ME who is as malleable as some of the UR doctors have turned out to be. An ounce of prevention would be to make sure that physicians accepted as MEs are licensed in California.  

References

Senate Bill # 1303 (Pan and Galgani), 16 February 2016

Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody? The Weinmann Report, 19 February 2018

SB 1303, SB 1303 (Pan & Gagliani), would replace coroners with medical examiners, The Weinmann Report, 25 Feb 2018

"Probable Drowning (SB 1189, Pan & Jackson)," The Weinmann Report, 23 May 2016 (www.politicsofhealthcare.com) 

When injured workers aren't accepted, viz,, Stanford Med Ctr, The Weinmann Report, 11/25/15

SB 1303 (Pan & Gagliani) would replace coroners with medical examiners (Part II)

Incredible as it may seem, it is still true in February of  2018 that non-medically trained persons are allowed by law to conduct autopsies including forensic autopsies where evidence that may be used at trial is being compiled. My previous post told about a particularly egregious abuse of the system, namely, the blatant political assertion of power politics to influence the collection of data to protect persons of authority who appear to have abused their authority to cover up a homicide. Now the tide is turning, or so some hope. Here's why:

State Senators Richard Pan, MD, and Cathleen Galgiani introduced SB 1303. This bill will require that counties of 500,000 or more use bona fide medical examiners for autopsies. The reliance on elected or appointed county coroners will go to the scrap heap of history. The medical examiner will have to be a liccnsed MD.

The wording of the bill needs to be more precise  -- it should say that the Medical Examiner shall be an M.D. licensed in California. There is a reason: when California's Utilization Review (UR) Guidelines were developed, licensed physicians were required to do UR. It was not felt necessary to say licensed in California since all the patients were treated in California  -- that led to a clever tactic by medical provider networks and insurance companies that then scoured the country for doctors who they felt would be willing to deny care to injured workers and others.

It helped insurance companies to use doctors not licensed in California because those doctors could not be held accountable to the California Medical Board for wrongful denials of care. In turn these denials of care enabled insurance companies to avoid paying for medical services. To avoid this quagmire in SB 1303 the bill should be amended to state that Medical Examiners shall be Medical Doctors (MDs) licensed in California. 

In Decmber of 2016 Chief Medical Examiner Bennet Omalu, MD, and Susan Parson, MD, resigned from their jobs in forensic pathology in San Joaquin County. Their complaint was "routine interference" from the Sheriff-Coroner in death investigations. The assertion was that political power was routinely asserted to impede  investigations where law enforcement personnel were involved, for instance, when a detained person died while in custody.

Loss of confidence in government has occurred as a result -- years of ignoring wrongful use of power under cover of authority has always required watchful eyes and is not a popular job. In the medical legal world, replacing elected or appointed coroners with Medical Examiners who are California licensed MDs is overdue.  

SB 1303 is sponsored by the Union of American Physicians and Dentists (UAPD) and by the California Medical Association (CMA). 

Note: Although this blog is independent, not supported by any corporate or union entity, this writer is a member of both UAPD and CMA.  

PART ONE: FORENSIC AUTOPSY LEGISLATION, SB 1189 & SB 1303: what happens when someone dies while in administrative custody?

The first hint that something was wrong in the way forensic autopsies were handled occurred after a psychiatric technician at Patton State Hospital found a decedent with "his head and torso in the trashcan, with his legs across the top of the hamper ... a cloth bag over head and face." The psych tech "pulled (the decedent) out of the trashcan." The man was dead.

A forensic autopsy showed a "a single small petechial hemohrrage in the upper outer quadrant of the left sclerae and conjunctivae, consistent with a head down position." There was also an "acute hemorrhage of the tongue."

Subsequently certain conclusions were drawn including that the psych tech had discovered a "probable drowning" -- not exactly a daring conclusion given the evidence. Official investigation and forensic autopsy followed. The physician's official findings seemed surprisingly tentative given the evidence. The diagnosis was recorded as a "probable drowning (italics added)." It was also stated that the decedent's "manner" of death was "undetermined."  Homicide was not discussed.

In this case the actual forensic autopsy was done by a licensed M.D. Witnesses present included an investigator from Patton State Hospital, one other MD, two detectives, and a forensic specialist from the San Bernardino Police Department. Why were witnesses associated with the decedent's detention present along with a preponderance of law enforcement personnel? The answer is that homicide was a consideration and so was possible mishandling of the case by law enforcement. The forensic autopsy became contentious

As a consequence of this case Senator Pan authored SB 1189 of which one of the provisions was to prevent law enforcement involved in or responsible for the custody of a decedent from being present at a forensic autopsy where their own actions or dereliction may have contributed to the decedent's demise.

The bill stated that the cause and manner of death must be determined by a licensed physician (this issue comes up again in SB 1303). One part of the bill that raised hackles was the section allowing law enforcement personnel to be present in the autopsy suite at the discretion of the pathologist and then only upon completion of pertinent education and training. That's when the sparks started flying. In due course, the bill got amended (some assert it was watered down), but was eventually signed into law on 28 September 2016 and became effective on 1 January 2017.

So now, we ask, why do we need another bill, SB 1303 (Pan)? Stay tuned for Part II. 

References

"Probable drowning (SB 1189, Pan & Jackson)," The Weinmann Report, www.politicsofhealthcare.com, 23 May 2016

"When is Death by Drowning Described as 'Undetermined?' How SB 1189 (Pan) Could Bring Clarity, The Weinmann Report, www.politicsofhealthcare.com, 30 May 2016

"Forensic Autopsy Bill, SB 1189, Clears Senate, Moves to Assembly," The Weinmann Report, www.politicsofhealthcare.com, 2 June 2016

News & Information, Vol. 31 No. 27 Senate Bill 1189 Amends Requirements Relating to Autopsies, www.jones-mayer.com/news/2017/01/03 

AB 72 (Bonta): Surprise! Network contraction is the new big bad wolf

Network Contraction, protected by AB 72,  deserves to be obliterated 

In healthcare plans including workers' compensation medical provider networks or MPNs the sick or injured person is at a distinct disadvantage. The reasons include legislation that was intended to help but which missed the mark. 

For review: "surprise billing" means the method by which out-of-network providers were allowed to bill patients more for services than their in-network counterparts. Assemblyman Bonta sought to correct this situation with Assembly Bill 72 which Governor Brown signed into law on 9/23/16. Unfortunately, the bill didn't go far enough because it left "network contraction" intact.

"Network contraction" means the method by which Medical Provider Networks (MPNs) or healthcare plans generally go about making sure they are not fully staffed with specialists. It is how the plans enable "out-of-network (OON) providers." This mechanism allows the plans to keep more of the premium dollar by deflecting costs out-of-network.  This technique, known as "in-network cost sharing," opens the door to non-network providers. This method allows healthcare networks, private plans as well as workers' comp, to understaff their networks -- then when the need arises they're obliged to call in outside consultants or OON providers. In private plans the extra cost is paid by the patient. In workers comp plans the patient is obliged to find the necessary specialist and pay the piper unless by legal means the workers comp entity can be made to pay.

Our recommendation is that AB 72 be expanded, either by amendment or by newly proposed legislation. The legislative language this publication recommends for legislative year 2018 is as follows:

"Healthcare plans and workers' compensation MPN plans shall be required to maintain full provider lists covering all specialties. The plans shall provide these lists to their in-network providers and to all of their subscribers and customers. Networks that fail in this requirement shall be penalized by fines and disciplinary action to be decided by further legislative action against the managers and officers found to be or to have been non-compliant." 

References

Physicians Advocacy Council, "We're on your side!," 08/07/17

"AB 72 (Bonta) targets physicians but leaves insurance companies and MPNs unscathed," The Weinmann Report, 10/06/16

"Veto or Amend AB 72 (Bonta)," The Weinmann Report, 09/16/16

"AAPS vs. Brown - Protecting Physicians and Patients from AB 72," Association of American Physicians & Surgeons," 10/20/17

"AAPS Files in 'Surprise Billing' Case, AAPS News, 09/2017