Is SB 863 an Example of Legislative Malpractice?

In our previous op-ed we discussed malpractice by Utilization Review doctors, namely, which ones were eligible for discipline from the Medical Board of California (MBC) and which ones were able to skedaddle from underneath this potentially onerous obligation. In a nutshell, UR doctors not licensed in California are allowed substantially more leeway than their properly licensed counterparts -- they can deny, modify, or approve care to California's injured workers without being subject to sanctions for unprofessional conduct from the MBC when their incorrect decisions are harmful to injured workers. 

We then discussed  the special relief that's granted to Independent Medical Review (IMR)  doctors such as those used by Maximus. While many of these IMR doctors may be licensed in California, many are not. Physicians do not need to be licensed in California to do IMR thanks to SB 863 which grants at least two levels of protection to this favored class. First, the IMR doctor does not have to be licensed in California. Second, the IMR doctor gets to be anonymous, not unlike the situation in pre-revolutionary France where nobles were allowed to file secret complaints called "lettres de cachet" -- these accusations put hapless defendants into prison. The unlucky defendant was not told the name of his accuser. 

Our editorial entitled "Malpractice by Utilization Review?" has been reprinted on other websites, e.g.,  workcompcentral, California Neurology Society, and has come to the attention of the California Applicants' Attorneys Association (CAAA).  We call your attention to comments that have been submitted to workcompcentral, in particular, one from an orthopedic patient who said "I too am thinking about going to the CA medical board on a UR doctor."

This patient said he was made to "suffer for close to 5 weeks with the headaches that comes with spinal fluid leaks." These situations point out why SB 863 needs to be substantially modified or repealed.

Physicians know that utilization review occurs in diverse forms and isn't limited to workers comp or injured workers -- it's used for managed care of all kinds and for Medicare and Medicaid.

It appears that SB 863 has provided a safe-haven for malpractice protection for UR doctors and their 80% supportive IMR colleagues. It appears that one can argue with reasonable medical probability that SB 863 itself reflects legislative malpractice and has earned the right to be repealed. 

Interested parties are referred to additional specific references (see  below):

"Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," by Greg Jones, Workcompcentral, 12/19/14;

"Maximus Upheld Denial of Treatment Four-Fifths of the Time," by Greg Jones, Workcompcentral, 12/16/14;

"Labor's Comp Expert Stepped on Toes to Make Reform," Workcompcentral, 12/10/14;

"Continuing Hope for Reinstatement of the Lien Activation Fee," Melissa LeBlanc, Workcompcental, 12/22/14.

Nurse practitioner bill, SB 491 (Hernandez), is down but not out

In part because of its own hypocrisy, the nurse practitioner bill has for the present taken an inglorious swan dive. Nonetheless, we believe it'll come to the surface again. But first, let's get to the juicy hypocrisy.

 

Political readers on healthcare will no doubt recall the nurses' efforts this summer to stop schools from allowing teachers and parents to administer insulin injections to diabetic students. The argument the nurses used was that teachers and parents weren't educated and trained to recognize when insulin injections should be given, what harm might occur were such injections not timely given or withheld, and what adverse side-effects might be expected, let alone treated.  It was a "safety" issue, nothing to do with job preservation.

Physicians identified with these arguments because these arguments were the same that the physicians' lobbies were using to fend off passage of SB 491 (Hernandez).  That the nurse practitioner lobby let itself use these arguments on one hand while arguing against them on the other hand turned out to be the very essence of poor political timing. We doubt they'll repeat the mistake when the bill resurfaces which, in due course, we think it will. So the word we issue to the CMA and its allies is CAVE CANEM (beware of the dog, the sign that was found in the Roman rubble of an ancient eruption of Mt. Vesuvius).

 

In essence, relying on the idea that Obamacare will cause a shortage of physicians, emboldened by Senator Hernandez' willingness to take on the traditional physicians' organizations, the nurse practitioners (NPs) sought the right to practice at levels beyond their education and training and to do so without physician supervision. One argument the NPs used was the shortage of sophisticated medical care in rural  areas. What they didn't say was that the NPs would actually populate these areas and stay there. They  didn't promise to accept lower pay, either. In fact, why  should they?  If the NPs are licensed to practice medicine as physicians, shouldn't they then be entitled to equivalent remuneration? That, we say, would be the logical next step for the nursing lobby. But first it was necessary to get SB 491 passed and signed into law. That is why it's inevitable that the NPs will try again sooner or later.

 

The California Medical Association (CMA) successfully argued that quality and safety in medical care was dependent upon proper education and training. Physicians well know that it's hard enough  to make diagnoses and render treatment even with 12 to 15 years of college, medical school, and advanced internship and residency training.

 

The Union of American Physicians and Dentists (UAPD) weighed in heavily on the side of the CMA. The UAPD  and the CMA acknowledged the importance of nurse practitioners but stopped short of allowing their level of education and training to be legislated as equivalent to physicians' level of education and training. Both organizations argued that the right way to fix anticipated physician shortage problems would be to expand post-graduate residency training positions for newly minted physicians and to expand the number of medical schools. The key  is to provide "properly trained individuals," not simply to invoke a "quick fix" by giving higher priority to the number of licensed professionals as opposed to the quality of the education and training of those professionals.   

 

Other organizations that helped to  oppose SB 491 included the California Neurology Society (CNS), California Academy of Family Physicians, Diabetes Coalition of California, California Society of Anesthesiologists, Blind Children's Center, California Academy of Eye Physicians and Surgeons, American Society of Ophthalmic Plastic and Reconstructive Surgery, Latino Physicians of California, Chinese Medical Dental Association, Let's Face it Together, Minority Health Institute, Dream Machine Foundation, Canvasback Missions, Lighthouse Mission, Time for Change Foundation, Here 4 Them, Osteopathic Physicians and Surgeons, etc (if we've left out your organization, just let us know).

 

References

 

See our blog of 6 August 2013 and references

 

The Daily Journal, San Mateo County, "A Slipper (sic) Slope Indeed," Robert L. Weinmann, MD, 8/13/13

Sacramento Bee, "Expanding role of nurses a recipe for malpractice lawsuits," Robert L. Weinmann, MD, 4/24/13 

 

 

SB 491 (Hernandez) Gets Stopped  in  Assembly Committee on Business Professions and Consumer Protection

A united coalition including the California Medical Association (CMA), the Union of American Physicians and Dentists (Local 206 of the American Federation of State, County, and Municipal Employees, AFL-CIO),  the California Society of Physical Medicine and Surgery (CSPM&R),  the California Neurology Society (CNS), and several others helped to convince the committee that allowing healthcare professionals, no matter how well intentioned, to practice beyond their levels of education and training was unwise and a recipe for disaster. Accordingly,  SB 491 failed today to clear the Assembly Committee on Business Professions and Consumer Protection. The name of the game was consumer protection.

In one of our previous blogs we pointed out that nurses and/or nurse practitioners (NPs), once enfranchised to practice medicine without physician supervision, already well disciplined and organized into a proper union would be well poised to negotiate for equal pay. It was not expected that the newly enfranchised nurses would rush to the hinterlands of California where medical back-up in the form of well trained physicians and surgeons would be lacking or that the nurses would rush to places where resources and money were scarce.

One should not expect the nurses to quit this quest. A new campaign should be expected as soon as the old wounds have healed and their  regenerative powers have been regained.

References and a footnote

"SB 491 (Hernandez) clears committee," www.politicsofhealthcare.com, 5/17/13

"If the work is equal, shouldn't the pay be equal?" www.politicsofhealthcare.com, 4/26/13

"No, no, no on SB 491, 492,  493," www.politicsofhealthcare.com, 4/18/13

Footnote: notice that in this instance an AFL-CIO union was on the same side as the CMA  and other traditional physician organizations -- editor.



 

"Equal Work with Unequal Pay" Revisited

In a recent communique sent privately, I was asked about the meaning of  "equal work with unequal pay" from an earlier blog about pending legislation in California re SB 491, 492, and 493 where nurse practitioners, optometrists, and pharmacists would be equated with physicians. The writer asks "in what sense is the work of a nurse practitioner ever quite the same as the work of a board-certified neurologist?" The writer said "I personally would not be willing to pay a nurse practitioner as much as I would cheerfully pay my neurologist. How about you?"

I agree with the challenger that nurse practitioner education and training is not comparable to the training of a physician, much less  to a physician who  has also done additional specialty training. I agree with the writer.  I would not expect to pay the same for the lesser trained practitioner.

But since that wasn't the point of my editorial I'll take another whack at it. My point is that if SB 491 et al pass in California, the decision as to who gets paid and at what rate will pass into new and untested hands. Unless the nurses' union is asleep at the switch, once SB 491 passes, it can be expected that the nurses' union will lobby to make sure that the newly minted nurse-physicians get paid the same as graduate physicians. The argument will be a legal one, namely, that the legislature, having designated nurses as equivlalent to physicians, is now obligated to see that they get equivalent pay.

In this case I asked my challenger to explain why a certain physicians and surgeons organization wasn't lobbying against SB 491. I was told that the group was "focused on other things." My response is that if the Hernandez series,  SB 491, 492, and 493 get signed into law it won't be long before there are no "other things" on which to focus.

Physicians' groups should oppose SB 491 et al in the interest of making sure that optimal medical care remains the goal, not watered down versions thereof.  So far we know that the California Medical Association, the Union of American Physicians and Dentists, and the California Neurology Society have taken up the campaign and so have many individual physicians.