In a master stroke of double-edged legislative slight of hand, Governor Brown vetoed a bill that would've given injured workers a fighting chance when faced with wrongful denial of treatment.
In his veto message, the Governor said "The recently enacted landmark comprehensive workers' compensation reform legislation makes this measure unnecessary. These reforms -- backed by both Democrats and Republicans -- reduce costs to businesses and protect workers. Further, they will help to avert an imminent crisis of skyrocketing rates that would have hurt both injured workers and businesses."
Yeah, right! There's a line about this kind of reasoning in The King and I when the beleagured king says he doesn't know whether or not to make an alliance with a stronger country. The weaker countries, he says, can't really help him. By contrast the larger and stronger countries may protect him out of everything he has. That's the situation injured workers will face when SB 863 becomes effective on 1 Jan 2013. They'll be "protected" out of some benefits they currently have in return for some benefits many will never get.
The recently enacted reform legislation to which the Governor refers is SB 863 which creates a secret panel of Independent Medical Review (IMR) doctors who will replace the current Utilization Review system (UR). Currently, utilization review doctors can be challenged in court for incorrect decisions. Under the new system the IMR doctors can only be challenged for bias, fraud, or conflict of interest. Trouble is that SB 863 also contains a provision which protects and conceals the names of the IMR doctors.
SB 863 increases permanent disability (PD) in one section of the legislation while another part of the bill disqualifies conditions that currently qualify for PD such as dyssomnia from chronic pain and sexual dysfunction from spinal injuries.
On the other hand, Paul Fong's legislation, AB 1687, would have required denials of care to be made in plain language so that obfuscations and wrongful denials of treatment dished out to injured workers could be stopped dead in their perfidious tracks. Now that that bill has been vetoed, injured workers have lost their last chance at fair play.
We have witnessed a sleek lesson in political maneuvering. First, the Governor personally worked for passage of SB 863 with its provision for Alternative Dispute Resolution (ADR) and keeping secret the names of Independent Medical Review (IMR) doctors. One would think the unions would have opposed the bill because of the ADR provision alone. One might even have expected principled opposition from the California Medical Association (CMA) because of the secrecy provisions that would be bestowed on an entire cadre of doctor-judges including doctors unlicensed to practice in California. In fact, the International Longshore and Warehouse Union, Southern California District Council, California Teamsters Public Affairs Council, SEIU 121, and the United Firefighters of Los Angeles did oppose SB 863. But the California Labor Federation which helped create the bill with the assistance of big business including Grimmway Farms got support from other unions including the American Federation of State, County and Municipal Employees (AFSCME) and from the California Medical Association (CMA).
One of the same unions that supported AB 1687, the California Labor Federation, was simultaneously involved in writing SB 863 with provisions that would eventually doom AB 1687, e.g., the secrecy provisions protecting the non-California licensed doctors. It's logical that if the Governor supported SB 863 he would veto AB 1687 since enforcement of AB 1687 would put a legal crimp into the secrecy provisions of SB 863. The California Labor Federation's support for AB 1687 came before SB 863 was completely written. In short, CLF was engaged in the composition of SB 863 even while CLF was ostensibly supporting AB 1687. AB 1687 passed the legislature before SB 863 was finalized. Fong's bill turned out to be an inconvenience to Gov. Brown and to the California Labor Federation and was doomed for failure once SB 863 passed. When SB 863 got signed by the Governor, the fate of AB 1687 was sealed.
The Open Government website reports that Assemblyman Fong voted for SB 863 which turns out to have been equivalent to voting against his own bill. The irony is that Paul Fong was obliged to stand by while SB 863 got signed into law and his own bill got vetoed.
Score: Governor Brown goes 2 for 2, Fong is 1 for 2, while the injured worker community goes scoreless, again.
Showing posts with label Alternative Dispute Resolution (ADR). Show all posts
Showing posts with label Alternative Dispute Resolution (ADR). Show all posts
Saturday, September 29, 2012
Wednesday, September 19, 2012
SB 863: CREDITS AND KUDOS
SB 863 provided one of the most drama-laden lobbying and advocacy campaigns in years and ended in a personal victory for Governor Edmund G. Brown, Jr. Because of intense work chiefly by the California Society of Industrial Medicine and Surgery (CSIMS), the bill was nearly defeated. On the Thursday before the end-of-session Friday, the Senate Democratic caucus opted for putting the vote off until next year's legislative session. That's when Governor Brown, backed into a corner, showed his teeth and claws. He got out of his comfortable gubernatorial chair and visited the senators in their own offices. He personally worked the bill. He didn't leave it to aides. The technique worked. We don't know about all the promises he issued, but we do know that his persuasion was powerful and successful. Various organizations were allowed to visit the Governor's office and discuss the bill. A report from The Union of American Physicians and Dentists said that the Governor's spokespersons refuted all points presented in opposition to the bill. At showdown time on Friday, the American Federation of State, County and Municipal Employees (AFSCME) supported the bill despite a provision to allow "carve outs" or "alternative dispute resolution" techniques that could have adverse impact on state and county employees and despite the fact that the bill continues a practice that AFSCME itself voted against at its 37th International Convention (see last two paragraphs below).
The handwriting was on the wall when the California Medical Association, having helped get some small but positive amendments, joined in support of the bill. The California Orthopedic Association, previously opposed to the bill, went neutral at the last minute. Major support all along came from the California Labor Federation which teamed up with big business organizations such as Grimmway Farms to write the bill. Eventually, the California Chamber of Commerce announced support which allowed reluctant Republicans to vote for it. With Governor Brown's supreme effort, this coalition prevailed. It was a superb job of rescue-lobbying, pulling a burnt bill outa' the fire and getting it signed into law. The proponents deserve credit for doing their job well.
Strong opposition came from CSIMS which provided repeated technical analyses of the bill, not that rhyme or reason had all that much to do with the final vote. Opposition came from The International Longshore & Warehouse Union, Southern California District Council, Voters Injured at Work, California Teamsters Public Affairs Council, SEIU Local 121, LatinoComp, The California Neurology Society, California Applicants Attorneys Association, California Hospital Association, and the United Firefighters of Los Angeles. Some of the opponents provided testimony at hearings, others wrote letters, most did what they felt they could. In the end, their combined opposition was overwhelmed when on the last day the Governor personally intervened. The opponent group still earns credit for their stalwart and principled fight on behalf of injured workers.
ISSUES NOT RESOLVED THAT MAY REQUIRE CLEAN-UP LEGISLATION OR RULINGS FROM THE OFFICE OF ADMINISTRATIVE LAW
SB 863 replaces the current Utilization Review system with an Independent Medical Review (IMR) system where only the Medical Director will be required to be licensed in California. IMR companies, just as did the UR companies, will be free to retain non-California licensed doctors who will not be responsible to the Medical Board of California (MBC) or even to their own state medical boards since the latter don't have jurisdiction in California. This lapse wasn't an oversight. It is one of the ploys desired by big business and perhaps unwittingly supported by the California Labor Federation.
The ability to appeal even egregiously wrong decisions by Utilization Review doctors, now to be known as IMR doctors, has been severely curtailed. That a medical review decision may be wrong will not suffice to file an appeal in court. An example of what will be required will be accusations of fraud or bias. As long as there's no fraud or bias, an incorrect decision, even a harmful one, may stand. This oversight, if that is what it was, will discourage many potential treating doctors from becoming involved with difficult cases. The Brown administration, in its press release of 9/18/12, boasted that SB 863 would "reduce litigation, claims adjustment costs, and other frictional costs." In short, it'll reduce the ability of injured workers who've been denied access to treatment and other benefits from filing legal appeals. An Associated Press story from 9/19/12 bought the Governor's facile interpretation hook, line, and sinker. The AP story stated that "the measure also aims to prevent lawsuits by establishing a binding independent review system to resolve medical disputes and shortens the timeline for approval of treatment from two years to three months." In a nutshell, this provision cuts the legs out from under injured workers who're denied access to the treatment recommended by their doctors.
Rules and Regulations are the next step. So is clean-up legislation and involvement of the OAL (Office of Administrative Law). The first step should be to require that all doctors who do IMR work in California be licensed in California. We should put a stop to carpet-bagger medical reviews. The IMR doctors should shoulder the same public policy responsibilities as the treating doctors they're judging. That means licensure in the state in which they work especially since the MBC has already stated that utilization review constitutes the practice of medicine. Two governors, Schwarzenegger and Brown, have ignored this advice. Nonetheless, this requirement was adopted in Chicago in 2006 by AFSCME at the 37th International Convention. Here's the resolve:
"Therefore be it resolved that this convention declare that physicians working for utilization review companies reviewing the claims of injured workers be licensed in the states in which their decisions are used and where their decisions may influence the provision or denial of medical care to injured workers."
References
"Unions Fight to Protect Injured Workers," Resolution # 30, 37th International Convention, August 7 - 11, 2006, Chicago, submitted by Robert L. Weinmann, MD, President & Delegate, and by Stuart A. Bussey, MD, JD, Vice President & Delegate, UAPD/AFSCME, L 206
Note: Doctor Bussey is currently President of UAPD/AFSCME L 206
"How to Practice Medicine Without a License," by Robert L. Weinmann, San Franciso Chronicle, 8/29/08
"Doctors Who Do Utilization Review Should be Licensed in California," Robert L. Weinmann, MD, California Progress Report, 4/27/09
The handwriting was on the wall when the California Medical Association, having helped get some small but positive amendments, joined in support of the bill. The California Orthopedic Association, previously opposed to the bill, went neutral at the last minute. Major support all along came from the California Labor Federation which teamed up with big business organizations such as Grimmway Farms to write the bill. Eventually, the California Chamber of Commerce announced support which allowed reluctant Republicans to vote for it. With Governor Brown's supreme effort, this coalition prevailed. It was a superb job of rescue-lobbying, pulling a burnt bill outa' the fire and getting it signed into law. The proponents deserve credit for doing their job well.
Strong opposition came from CSIMS which provided repeated technical analyses of the bill, not that rhyme or reason had all that much to do with the final vote. Opposition came from The International Longshore & Warehouse Union, Southern California District Council, Voters Injured at Work, California Teamsters Public Affairs Council, SEIU Local 121, LatinoComp, The California Neurology Society, California Applicants Attorneys Association, California Hospital Association, and the United Firefighters of Los Angeles. Some of the opponents provided testimony at hearings, others wrote letters, most did what they felt they could. In the end, their combined opposition was overwhelmed when on the last day the Governor personally intervened. The opponent group still earns credit for their stalwart and principled fight on behalf of injured workers.
ISSUES NOT RESOLVED THAT MAY REQUIRE CLEAN-UP LEGISLATION OR RULINGS FROM THE OFFICE OF ADMINISTRATIVE LAW
SB 863 replaces the current Utilization Review system with an Independent Medical Review (IMR) system where only the Medical Director will be required to be licensed in California. IMR companies, just as did the UR companies, will be free to retain non-California licensed doctors who will not be responsible to the Medical Board of California (MBC) or even to their own state medical boards since the latter don't have jurisdiction in California. This lapse wasn't an oversight. It is one of the ploys desired by big business and perhaps unwittingly supported by the California Labor Federation.
The ability to appeal even egregiously wrong decisions by Utilization Review doctors, now to be known as IMR doctors, has been severely curtailed. That a medical review decision may be wrong will not suffice to file an appeal in court. An example of what will be required will be accusations of fraud or bias. As long as there's no fraud or bias, an incorrect decision, even a harmful one, may stand. This oversight, if that is what it was, will discourage many potential treating doctors from becoming involved with difficult cases. The Brown administration, in its press release of 9/18/12, boasted that SB 863 would "reduce litigation, claims adjustment costs, and other frictional costs." In short, it'll reduce the ability of injured workers who've been denied access to treatment and other benefits from filing legal appeals. An Associated Press story from 9/19/12 bought the Governor's facile interpretation hook, line, and sinker. The AP story stated that "the measure also aims to prevent lawsuits by establishing a binding independent review system to resolve medical disputes and shortens the timeline for approval of treatment from two years to three months." In a nutshell, this provision cuts the legs out from under injured workers who're denied access to the treatment recommended by their doctors.
Rules and Regulations are the next step. So is clean-up legislation and involvement of the OAL (Office of Administrative Law). The first step should be to require that all doctors who do IMR work in California be licensed in California. We should put a stop to carpet-bagger medical reviews. The IMR doctors should shoulder the same public policy responsibilities as the treating doctors they're judging. That means licensure in the state in which they work especially since the MBC has already stated that utilization review constitutes the practice of medicine. Two governors, Schwarzenegger and Brown, have ignored this advice. Nonetheless, this requirement was adopted in Chicago in 2006 by AFSCME at the 37th International Convention. Here's the resolve:
"Therefore be it resolved that this convention declare that physicians working for utilization review companies reviewing the claims of injured workers be licensed in the states in which their decisions are used and where their decisions may influence the provision or denial of medical care to injured workers."
References
"Unions Fight to Protect Injured Workers," Resolution # 30, 37th International Convention, August 7 - 11, 2006, Chicago, submitted by Robert L. Weinmann, MD, President & Delegate, and by Stuart A. Bussey, MD, JD, Vice President & Delegate, UAPD/AFSCME, L 206
Note: Doctor Bussey is currently President of UAPD/AFSCME L 206
"How to Practice Medicine Without a License," by Robert L. Weinmann, San Franciso Chronicle, 8/29/08
"Doctors Who Do Utilization Review Should be Licensed in California," Robert L. Weinmann, MD, California Progress Report, 4/27/09
Thursday, August 30, 2012
ARE SOME LABOR UNIONS ENCOURAGING "CARVE OUTS"?
SB 863 has a built-in surprise for labor unions: it has a provision that will enable "carve outs. " A "carve out" is known technically as an Alternative Dispute Resolution (ADR). The assertion by LatinoComp and others is that Labor Code Section 3201.7(c)(4) is being expanded by SB 863 to include all employees of the State of California.
The claim is that pages 39 to 41 of SB 863 expand this little discussed legal provision so that it may now be applied to all state employees. Legal history and precedent is Miller v. Cupertino Electric, Zenith Ins., 2012, Cal. Wrk. Comp. P.D. Lexus 90.
Take a look. What's your opinion? Have compliant unions given away too much in the effort to reform workers' compensation?
SB 863 has a built-in surprise for labor unions: it has a provision that will enable "carve outs. " A "carve out" is known technically as an Alternative Dispute Resolution (ADR). The assertion by LatinoComp and others is that Labor Code Section 3201.7(c)(4) is being expanded by SB 863 to include all employees of the State of California.
The claim is that pages 39 to 41 of SB 863 expand this little discussed legal provision so that it may now be applied to all state employees. Legal history and precedent is Miller v. Cupertino Electric, Zenith Ins., 2012, Cal. Wrk. Comp. P.D. Lexus 90.
Take a look. What's your opinion? Have compliant unions given away too much in the effort to reform workers' compensation?
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