DWC Not Prepared to Honor the current QME Fee Schedule Stakeholder Agreement

In general it appears that after three months of negotiations DWC has decided to go its own way and ignore whichever parts of the Stakeholder Agreement it chooses.

-- Medical Records received by the QME are supposed to be studied in time to include mention of them in the QME report. That is hard to do when the records arrive after the patient has been seen.That is why CSIMS argued during the Stakeholders Meetings that medical records should be sent to the QMEs 15 days prior to the evaluation. It should be understood that we're not talking about a few pages -- in one case our office received 51 pounds of medical reports. It is almost incomprehensible that DWC rejected the  recommendation that reports get submitted 15 days before the patient is seen by the QME.

-- DWC supports  the use of the ML 206 reports which are defined as "remedial." That means that the original report submitted by the QME was declared insufficient or not responsive to the medical legal issues raised. Under this circumstance a "remedial" report can be requested. No reimbursement is required for "remedial" reports which, in fact, are actually traditional "supplementals" (ML 106 under the present system).  

-- ML 206 reports are simply unpaid supplementals and can be requested by the carrier without concern for wrongful use of this mechanism. In short, the current DWC does  not propose a method to decide if a request for a "remedial" report is spiteful or just flat out wrong. DWC needs to establish independent "dispute panels" for instances where the QME disputes the indications for a "remedial" report. At the present time, if ML 206 were adopted as is, the requests for "remedials" would be unilateral and arbitrary. 

-- When Gabor Vari, MD, CEO of California Medical Evaluators, was asked about ML 206 reports he stated that the above review of the issues was correct and that the provision for ML 206 reports was "too broad and open to abuse by carriers."

-- Indeed, Dr. Vari's assessment was that the ML 206 provisions as currently envisioned by DWC "will increase friction and decrease engagement by QMEs."

-- Should the number of pages sent to the QME be
specified in a cover letter from the sender? CSIMS said yes, DWC said no. This decision leaves it up to the QME to count the pages and state the count under penalty of perjury (a QME office miscount of one page with a 51 pound crate of medicals could lead to an accusation that the QME was guilty of perjury).

Conclusions

DWC does not appear willing to honor the Stakeholder Agreement to which the QME contingent via CSIMS and DWC appeared to have agreed. Our opinion is that ML 206 and other provisions by the DWC violate the proposed QME Fee Schedule Stakeholder Agreement and that the current proposal should be designated as "Stat DOA" (dead on arrival like right now!). 




  

Tid-bits of Hypocrisy (the first in a series about proposed reform in workers comp)

The first tid-bit of hypocrisy we'll discuss is paper size. Financial negotiations between Workers Compensation physicians represented by the California Society of Industrial Medicine and Surgery (CSIMS) and the California Division of Workers Compensation (DWC) focused on this issue.


The reason is that the doctors wanted a certain level of minimum reimbursement circa $3.00 per page whereas the insurance industry, in this case spoken for by DWC, wanted to pay less, in short, while their alleged aim was supposedly to update the fee schedule to enable enhanced recruiting of physicians, the insurance companies were not wild with joy about this avowed objective. Nonetheless, it was the physicians' understanding after stakeholder negotiations between CSIMS and DWC that a joint stakeholder agreement had been reached on a pay-for-page basis.

Not quite. During the negotiations CSIMS envisioned standard size pages measuring 8.5 x 11  inches. The doctors for whom CSIMS was negotiating were consequently bowled over when DWC let it be known that the DWC version of a page would measure 8.5 x 14 inches.

In essence the DWC recommendation amounts to an increase in insurance company income, denial of a modest raise for physicians, and a reduction in services for injured workers.

We understand that DWC wants to hear what the parties and the public think about this proposal and others (see newsletters to follow) --  if you have an opinion make it known to DWCForums@dir.ca.gov (10 July 2020 is the cutoff date). You should also copy gparisotto@dir.ca.gov, khagen@dir.ca.gov,  membership@csims.org, your assembly representatives and state senators. 

Covid 19: Is Marketing in Health Care taking Precedence over Safety? Are some institutions designated as "health-care" suppressing internal information about Covid-19?

This story concerns an elderly physician we'll just call "Dad. " This saga was submitted by his son whose name is being protected by this newsletter since we've not yet called him for further follow up. We're also not yet disclosing the name of the hospital since the hospital itself has so far not had opportunity to respond to this story. Here is what we have learned so far. 

Dad is a private practice internist whose patients include geriatric patients in a rehabilitation hospital. Out of an abundance of caution to protect these patients Dad has been wearing a PPE mask while attending these patients. He felt he was doing the right thing. We are told that the hospital administration did not agree. We are told that the hospital administration was afraid that their patients would worry if they even thought that their doctors were worried about Covid-19. In economic terms the administration worried that families would pull relatives from the hospital, in short, would facilitate early discharge. For the hospital we were told that the concern for a possible medical problem for the patients was being supplanted by an anticipated economic problem for the hospital. 

We are also told that some hospital staff and patients tested positive for Covid and that since then the hospital administration has endeavored to enforce measures to block disclosure of this information. Disclosure is seen as a marketing risk. 

The person who submitted this story to us wrote that "there needs to be recourse for hospitals and administrators that are behaving this way. Making money is not more important than protecting our patients." 

Further follow-up is indicated, not just with reference to the unnamed hospital in this story, but to determine to what extent this narrative pertains to other hospitals and institutions designated as "health-care." We need to ask if the politics of health-care -- what this newsletter is all about -- has taken an ugly turn or not. 

Updated comment, 04/22/20: we've received comments of interest, e.g., some would like the AMA to take up this story whereas others think we should inform Pro Publica. In general, everybody is uncomfortable with the prospect of  physicians being intimidated and silenced by business or political interests. 

Corona Virus versus QMEs

Our office, designated to do a Panel QME, ran into a plethora of unexpected complications on a recent case. Various involved parties were worried, for example, about the assigned date -- they were fearful of travel, time spent in any doctor's office where a previous Corona patient might have been, and the unpredictability of the virus itself. Parties expressing trepidation included medical office staff, persons that might be asked to do diagnostic testing such as imaging studies or legal staff that might have to deal with a client who had just been to a medical office where somebody else might have left a viral particle. Lawyers' offices, saddled with their clients' medical legal problems, now also worried about exposure of their clients and their own legal staff to a novel virus known to have the ability to cause death. In all cases, front office persons were worried about their own exposure. What to do?

Here's what we did. All the parties were called. It turned out that the patient was willing to reschedule to a date that  might be safer, his attorney was agreeable and so was defense. The adjuster was compliant. The exam was rescheduled to a later date by which it was hoped the virus problem would be resolved. If not the above process could be repeated, i.e., postponed again. 

There has been considerable discussion of use of telemedicine but no overall agreement to date how it would be fair to all parties. In the meantime, it appears as though we'll need to rely on good faith negotiations. That task is likely to be as challenging as the Corona Virus already is. We should try anyway. 

Re AB 890 (Wood): Full Practice Authority for Nurse Practitioners 

AB 890, authored by Assemblyman Wood, DDS, is reportedly designed to fill a gap in access to healthcare. The underlying problem is that there are not enough physicians especially for injured workers (these patients are seen via workers comp). While attempts are made to train more physicians, this effort is not seen as adequate. Wood's solution is to allow Nurse Practitioners (NP) to fill the gap.The claim is made that NPs will gravitate to underserved areas and work for less remuneration than their physician colleagues. 

Nothing, however, in the current written legislation guarantees that NPs will gravitate to underserved areas or stay there if they do -- the NPs will not be obliged to give up chances for employment in better served areas or to charge less for services that the legislatue has deemed equivalent. Pay parity for the same job or equivalent services is to be expected especially by NPs who are properly organized. 

Unfortunately, The bill has verbiage harmful to physicians, patients, and hospital medical staffs. 

Item # 1: The bill says that "a nurse practitioner shall be eligible to serve on medical staff and hopital committees." So much for the exquisite education, training, and preparation that have to date been required of physicians. 

Item # 2: under Section 2637.101 it is stated that "there is in the Department of Consumer Affairs the Advanced Practice Registered Nursing Board consisting of nine (underlining added) members."

Item # 3: this item is under Section 2637, 103. It states that "commencing January 1, 2026, four (underlining added) members of the board shall be nurse practioners licensed under this chapter. 

Item # 4: Three members of the board shall be physicians and surgeons licensed by the Medical Board of California or by the Osteopathic Board of California and that "at least one of the physician and surgeon members shall (underlining added) work closely with a nurse practitioner" and that "the remaining physician and surgeon members shall focus on primary care in their practice." 

Item # 5: Two members of the board shall represent the public at large and shall not be licensed under any board under this division or any board referred to in Section 1000 3600."

Conclusion can be drawn with reasonable accuracy that the chief purpose of this bill is to change practice standards such that medical and/or osteopathic professional standards are no longer required for medical practice. 

Further conclusion is that AB 890 shows how a bill ostensibly designed to increase access to care evolved into legislation pitting one group's fiscal and professional prerogatives against another group's fiscal and professional percs. 

Bad Faith Changes for Regulation 10451.1 have a good chance of passage

When a defendant objects to a bill for a Medical-Legal expense it must do so in compliance with LC 4622. Regulation 10451.1 is operative. Some defendants find the rules particularly onerous and want to tilt the process so that it will be more advantageous to insurers and defense interests. In recent months reports have surfaced that the number of petitions for non-IBR disputes has increased. These petitions have been filed by providers of medical services, e.g., QMEs, treating physicians, and diagnostic testing facilities. 

The key to this harmful and biased proposed regulatory change is that it will obliterate the right to be heard on a non-IBR petition if the Defense simply does not file a Declaration of Readiness. This proposed change is harmful to treating physicians, to the providers of diagnostic services, neither of whom will be able to go ahead with planned diagnostic or treatment protocols because of  wrongfuly denied QMEs, and to QMEs whose reports will be simply ignored. It will reduce access of injured workers to all of these services -- diagnostic studies and treatment not done or postponed and QME analyses of opposing claims. The method will be short, simple, and not sweet  -- arbitrary denials of bills, fake arguments proposing why approved bills should be paid at lesser amounts, and flat-out bill rejections. The inevitable result will be decreased access to diagnostic services, further reduction of doctors willing to treat injured workers, and fewer doctors willing to stand up as QMEs to the slings and arrows of outrageous fortune, ie, the clout of insurance companies. 

Ample examples of what the proposed changes in 10451.1 can get away with already exist, e.g., denying properly scheduled QME or AME reports based on spurious claims of which a favorite is that the QME or AME provider is "not in the MPN."

The proposed regulatory changes herein described are in bad faith and should be rejected. 

Reneging on AB 1107 (Chu)

In its original form AB 1107 was supposed to give relief to injured workers who were being wrongly denied access to treatment. It was supposed to ease the administrative burden on treating physicians whose time for patient care was being diluted by unreasonable requests for documentation to entertain Utilization Review (UR). The main thrust of AB 1107 was to facilitate treatment by primary treating physicians by exempting them from UR under specific circumstances. This plank has now been removed and replaced by language that may actually increase legal costs. 

As a result of the fear that access to treatment might become too easy for injured workers the bill got amended in committee with the acquiescence of the author to narrow the proposal but to allow stakeholders to challenge UR conclusions, said challenges to include more legal wrangling with even less access to care since treatment will inevitably be delayed, postponed, or just not done while the wrangling process is in play. 

It is true that this proposal gives the applicant or patient an opportunity that wasn't previously available but it does not facilitate prescribed treatment by treating doctors -- and that, my friend, was supposed to have been the raison d'etre of AB 1107 in the first place. 

In the recent King v. CompPartners Inc case, August of 2018, a deserving patient was harmed by wrongful utilization review when authorization for his medication was  withdrawn. The injured worker tried to use "tort" law to sue the Utilization Review Provider but lost that battle when the California Supreme Court decided that work comp law provides  exclusive remedy for employees who allege injury because of treatment denial by UR. This decision in turn caused one of the Justices to say that the law for injured workers should be revisited.

THAT was what AB 1107 initially sought to do. Instead, we have a compromise which does not help injured workers when they need treatment but which provides them and their lawyers a way to challenge UR decisions later. This solution is another in the sordid list ot "too little, too late." This writer recommends revisiting the bill again to review the circumstances under which Utilization Review can be set aside so that injured workers get needed care in timely fashion. There is still time to amend the recent amendment. 

Reports reviewed for this editorial include

"Will AB 1107 Trim the Claws of UR," workcompcentral column, 2019-04-18 by Robert Weinmann;

"Turning the Clock Back on State's Workers' Compensation System, workcompcentral column, 2019-04-24 by Carlos Luna; 

"Utilization Review Physicians May Owe Duty of Care to Applicants, King v. Comp Partners, 2016, 243 Cal. App. 4th 685, Mullen and Filippi. 

WILL AB 1107 TRIM THE CLAWS OF UTILIZATION REVIEW?

Under current law, employers are obliged to establish Utililzation Review panels whose purpose is to review, approve, modify, or deny diagnostic and/or treatment recommendations -- some doctors are felt to have a penchant for the task. Other doctors sometimes see these UR doctors as URDS (Utilization Review Denial Specialists).

AB 1107 (Chu and Reyes) would take away some of the unbridled authority now enjoyed by UR panels. For instance, some of the denials seem outright arbitrary from the getgo -- physical therapy has a limit of 24 sessions per injury but there are no peer reviewed studies that show 24 as a reasonable cut off limit. It is widely accepted that the limit of 24 is based on economics and has nothing to do with science or medical treatment.

Legislators who are often not familiar with health and safety issues may not know that Utilization Review doctors do not interview or examine the patients on whom their decisions fall. Patients are often astonished that this practice governs their lives and access to treatment. Patients usually believe that their doctors make the medical decisions -- in fact, they do, but Utilization Review is allowed under the law to unmake these decisions.

So here is what AB 1107 would do:

1) AB 1107 would make medical treatment that is prescribed by a PTP (primary treating physician) no longer subject to Section 4610 or subject to dispute on the grounds of medical necessity

a) if the employee suffers from a serious chronic condition, or

b) if the requested treatment has been previously authorized by the employer and if the employer fails to establish that the treatment is no longer indicated, or

c) if the employer has established a medical provider network pursuant to Sec. 4616, and that

d) if there is a dispute the appeals board shall resolve the dispute, and that

e) the employer is not precluded from objecting to a treatment protocol on grounds other than medical necessity.

While this legislation does not carry a Duty of Care provision, a provision that makes PTPs and UR doctors equally responsible under the law for their decisions, it carries enough clout to modify the sometimes arbitrary and arrogant conduct of the Utilization Review system.

An Aye vote is warranted.

REFERENCES

Utilization Review Physicians May Owe Duty of Care to Applicants, King vs. Comp Partners,, 2016, 243 Cal. App. 4th 685, Mullen and Filippi

Ten Years Ago: Out-of-State Evaluators Questioned, September 2018, 46 CWCR

All is Not Well in California and Hawaii, 14 Feb 2019, workcompcentral column, Weinmann

Duty of Care vs. Utilization Review, 2018-10-30, workcompcentral column, Weinmann

Duty of Care Revisited -- all is not well in Hawaii or California

Duty of Care (King v. CompPartners) was reviewed in this column on 10/16/18. The case involved the sudden discontinuation by a Utilization Review (UR) physician of patient Kirk King's klonopin. King filed suit based on negligence and malpractice because the UR doctor arbitrarily disconinued his medication and thereby caused him to have four epileptic seizures. Eventually the case went to the California Supreme Court which decided 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. 

We wrote in this column that the decision protects UR physicians from malpractice lawsuits. But Justice Mariano-Florentino Cuellar wrote in his opinion that it might be time for the California legislature to take a look at the law since it could now be argued that protections in the law for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

It makes no sense that treating doctors are subject to Duty of Care, a protective legal concept that protects patients from cavalier care, whereas by contrast UR doctors, who do not interview or examine the patients, are not. 

It makes sense to change the law so that both UR and IMR (Independent Medical Review) doctors can be brought under the same Duty of Care umbrella as their PTP (primary treating physician) counterparts. Legislative action is now an issue in Hawaii and California. 

We got action, but maybe not with quite the slant originally sought.  In Hawaii debate now rages over whether or not Independent Medical Examiners (IMEs) should owe the same duty of care to injured workers as they do to their other patients. H 863 by Rep. Aaron Johanson and SB 1411 by Sen. Les Ihara in Hawaii would require that the IME be licensed in Hawaii, possess malpractice insurance, and "owe the same duty and standard of care to the injured employee as owed to a traditional patient." The bills would also make permanent an employee's right to record medical examinations.

In California, UR and IMR doctors are ripe for this type of legislation -- neither actually interviews the patient or even examines the patient -- but the California Supreme Ct has let 'em both off the hook. So the reviewers who know the patients less than the treating doctors get away with less review of their decisions because they're exempt from Duty of Care obligation. 

What is needed in both Hawaii and California is legislation that states that UR, IMR, as well as treating doctors, shall be subject to  obligatory Duty of Care.

We'll discuss whether or not an employee has a right to record a medical examination in another column. 

References

Workcompcentral News, "Lawmakers Bring Back Duty of Care Proposal for IMEs," 2019-01-28

The Weinmann Report, www.politicsofhealthcare.com, 2018-10-18  ("Duty of Care versus Utilization Review") 

Workcompcentral Column ("UR physicians do not owe injured workers Duty of Care"), 2018-09-18

The Weinmann Report, www.politicsofhealthcare.com, 2018-08-26
("Utilization Review physicians do not owe injured workers Duty of Care")

SURPRISE BILLING MAKES NEWS AGAIN

Under the direction of Insurance Commissioner Dave Jones the Department of Insurance has adopted new regulations intended to implement the provisions of Assembly Bill 72 (Bonta). For the legislative wonks among us, that means that Chapter 492, Statutes of 2016, now govern how "surprise billing" will be done. 

That means that AB 72 which is supposed to protect us from high medical bills when we get care from out-of-network providers has new hurdles to implement. For review, an out-of-network provider may be the doctor your Medical Provider Network (MPN) calls in to provide care for you when the MPN does not have a particular provider's specialty in the MPN. That's when the out-of-network provider may bill more than the MPN's subscribers expect. As of 1 January 2019 there are new regulations, e.g., average contracted rates approved by the Office of Administrative Law (OAL).

Here's how it'll work: let's say you, as a subscriber to Blah Blah MPN, get sick and require specialized medical care not available in your provider network. That circumstance is the cue for the MPN to call in non-contracted physicians. Under this circumstance the non-contracted or out-of-network physician is allowed to bill more than would be allowed if the service were prescribed by an in-network physician. Sometimes a whole lot more! Therein lies the mighty consumer squawk!

Under the new law the out-of-network provider may charge 125% of Medicare or the average contracted rate for the particular geographic area involved, whichever is more. The new regulations per Insurance Commissioner Jones set up methodolgy for this calculation. The resulting figure is the "average contracted rate."

The idea is to standardize rates and avoid disputes. Rate adjustment to recognize inflation will be taken into account. 

At the same time insurance plans and MPNs will supposedly be obliged to have adequate networks of in-network physicians so that calling in out-of-network physicians will be minimized. In theory it'll be the obligation of the network to provide timely care via in-network contractors. That's where the real rub is -- the statement we have from the insurance commissioner says "insurers are required to maintain an adequate provider network to ensure timely access to care for their policyholders." The statement also says that "when patients are forced to go to out-of-network at an in-network facility, the patient should not have to pay more for their care and the providers should be reimbursed fairly (italics added)."

Aye, and there's the rub! The language we want to see in law on this matter should not say "should," it should say "shall." This one 
word would convert a wishy-washy statement into a firm statute. 

Under AB 72 we already have language to establish an Independent Dispute Resolution (IDR) mechanism. This item could be the vehicle that establishes fair and equitable reimbursement compliant with the aforementioned Chapter 492.

Governor Newsom has already signed an Executive Order that establishes a state-run purchasing program for prescription medications. Now it's time for follow-up. 

The Weinmann Report (www.polilticsofhealthcare.com) calls upon Governor Newsom to sign an executive order to require MPNs and insurance providers to be fully staffed with all specialties. Otherwise we've left a huge loophole open for provider networks to skimp on staffing and be obliged to use out-of-network providers. 

BURNOUT AND THE PACIFICATION OF PHYSICIANS

-

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