GOVERNOR BROWN SLASHES CARE TO INJURED WORKERS -- AGAIN!

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

AB 1542 AND AB 2127 -- WILL THE GOVERNOR AVOID A COLLISION IN HEALTHCARE POLICY?

Governor Brown's healthcare policies are now colliding. In 2014 Governor Brown signed AB 2127 (Cooley) into law. As a result of this decision the California Education Code now requires that high school athletes who have sustained a cerebral concussion, even a mild one, must be evaluated by someone trained to make this evaluation before the athlete can return to play. The idea is to reduce the consequences of traumatic brain injury (TBI) which may follow a cerebral concussion or be delayed until a series of such concussions have occurred. The injured athlete is now required to get written clearance from a licensed health care provider trained in the management of concussions. This legislation is a step in the direction of protecting high school athletes.

Governor Brown now has a chance to sign legislation, AB 1542 (Mathis & Cooley),  that would similarly help injured workers. We have previously recommended that he sign this bill. Nonetheless, the bill remains subject to possible veto. Construction workers, roofers, persons who work at heights, are particularly prone to the type of injury that may cause cerebral concussion and lead to post-concussion syndrome secondary to TBI. California's injured workers deserve protection that is at least as cognizant of their well being as AB 2127 tries to be for high school athletes. That is in part why we ask again that Gov. Brown sign AB 1542, just as he signed AB 2127. In the case of the injured worker trained specialists in the form of NeuropsychQMEs are available and have been for 22 years. It makes no sense to cut this specialty out of the loop. They already are the "licensed health care provider" trained in the management of concussion that is required by law and by common sense. The injured worker who has sustained TBI should have this level of evaluation available.

AB 1542 also looks out for the employer because it provides a sound scientific basis whereby reassignment to modified work or to one's usual and customary job can be made with reasonable medical judgment. It is analogous to deciding whether or not injured athletes can return to play.
In the case of a TBI expertise is also needed for treatment decisions.

A veto of AB 1542 after having signed AB 2127 sends mixed messages on health care. Such a decision would relegate injured workers to a level of healthcare protection below that of injured high school athletes. We do not believe that Gov. Brown wants or needs such a healthcare policy collision.

AB 1542 (Mathis and Cooley): DRAMA IN THE CAPITOL

Now that AB 1542 (Mathis and Cooley) has passed the Senate, 39 to 0, having already passed the Assembly, 79 to 0, we have a unique situation wherein the Governor is being pressured by the Department of Industrial Relations (DIR)  to veto a bill that has unanimous bipartisan support. The reason given by DIR Director Christine Baker for public consumption is that "the California  Board of Psychology does not recognize neurospsychology as a subspecialty in psychology." 

On the other hand, the same California Board of Psychology accepts the American Psychological Association's (APA)  recognition of specialists in neuropsychology. In short, the APA recognizes neuropsychologists. Given these facts, it is difficult to fathom why DIR should object to AB 1542 unless there are other reasons we don't yet know about. What we are left with is that a specialty with national  recognition is being denied recognition in California. 

Medical specialists involved in the diagnosis and treatment of traumatic brain injury (TBI) also recognize the specialty role provided by the neuropsychology specialists, for instance, the American Academy of Neurology has published on this matter since 1966. 

In my personal letter to the Governor, I indicated that the DIR position, if the Governor bows to it, is likely to increase litigation since the current easy access to neuropsyche Qualified Medical Evaluations will be impeded. It will then be up to the applicants' lawyers to fight tooth-and-nail for neuropsyche evaluations for their TBI clients and for the defense lawyers to forestall successful litigation by the applicants' lawyers. Lawyers who fail to support their applicants' cases to the hilt may find themselves on the wrong side of a malpractice suit.

The same goes for the physicians who treat and evaluate injured workers. Failure to obtain neuropsyche assessment may be seen as a dereliction of duty by the physician, enough so that the physicians themselves become subject to potential liability or malpractice claims.

Disallowing recognition of neuropsychologists harms brain-injured workers and impairs the ability of the workers compensation system to take care of injured workers with TBI. Employers are also harmed when TBI patients are not properly assessed with reference to return to work status or feasibility for continued employment. 

AB 1542 preserves access of injured workers to neuropsychological expertise. I believe that should be enough reason for the Governor to sign AB 1542 into law.

References

"Reasons to Keep Neuropsychology as a Specialization in QMEs," Hannah Pence, MS, CRP, 09/01/2015;

"Three Comp Bills Left for Final Week of Session," workcompcentral, 09/04/2015;

"Does Somebody Want to Sabotage Neuropsychological Evaluations," workcompcentral, 5/20/2015;

"Neuropsychology Medical-Legal Evaluations (Neuropsyche QMEs): Does Somebody Want to Sabotage Neuropsychological Evaluations," The Weinmann Report, www.politicsofhealthcare.com, 4/25/2015;

"Is Mandatory Malpractice Ordered to Begin on Tuesday, 1 September 2015," The Weinmann Report, www.politicsofhealthcare.com, 8/27/2015;

"Neuropsychology -- The How and Why," James R. Cole, PhD, QME, California Society of Industrial Medicine and Surgery," 8/18/2015;

Analysis from Assembly Committee on Appropriations, 7/08/2015, Jimmy Gomez, Chair, prepared by Lisa Murawski. 

IS MANDATORY MALPRACTICE ORDERED TO BEGIN ON TUESDAY, 1 SEPTEMBER 2015?

According to workcompcentral's newsletter, 2015-08-27, California's Division of Workers Compensation has ordered that as of 1 September 2015 "clinical neuropsychology will no longer be a recognized medical specialty." This decision by DWC was approved by the Office of Administrative Law on 8/12/15. The ruling means that "the elimination of the specialty designation for clinical neuropsychology" goes into effect on September 1st. 

Clinicians, particularly psychologists with specialized training in neuropsychology, will at first blush be astonished that the authority of the DWC can be used to ease the way for medical malpractice. On second look clinicians have observed that the workers comp system is rigged against fair hearings for injured workers, for instance, nearly 90% of Utilization Review (UR) denials are upheld by anonymous Independent Medical Reviewers (IMRs). 

Keep in mind that MPNs (Medical Provider Networks) pre-select their own clinicians and then step aside as disproportionate numbers of their own clients get denied treatment by the mandatory UR panels created by SB 863 and which usually have links to insurance companies. The MPNs step aside when IMRs such as Maximus slavishly confirm the treatment denials. 

In the case of neuropsychology, we know that psychologists with special training in traumatic brain injury (TBI) are uniquely qualified to make diagnostic and treatment decisions about TBI. In fact, Assemblyman Devon Mathis, R-Visalia, co-author of AB 1542 along with Assemblyman Ken Cooley, D-Rancho Cordova, testified in favor of AB 1542 before the Senate
Committee on Labor and Industrial Relations to the effect that while general psychologists deal with mental injuries neuropsychologists are specially educated and trained about TBI.

Assemblyman Mathis' credentials include a Purple Heart for TBI sustained during an IED attack in Iraq in 2008. The point of Mathis' testimony is that the best recommendations for diagnosis and treatment for him and for injured workers who sustain TBI on-the -job is through adequate diagnosis and work-up that requires TBI expertise. Anything else, in this writer's opinion, amounts to inferior treatment. It can now be argued with reasonable medical probability that DWC has in this case imposed a restriction that arguably can be stated to suborn malpractice by advocating and in fact eliminating NeuropsycheQME as a separate and distinct clinical specialty. 

That is why it's obligatory to make sure that AB 1542 which would protect neurospsyche as a designated specialty makes it through the legislature where it's already passed the Assembly 79 to 0 and then persuade the the governor to  sign the bill into law. 

Then we'll need to know whence the misguided direction arose that convinced Director Christine Baker to file a letter in support of eliminating neurospyche as a specialty and to combine it with the more general classification of psychology absent recognition of specialized TBI education and training. One will also need to ask if there is a need for re-education and restructuring within DWC. 

This author previously addressed this issue in an editorial reprinted by workcompcentral, 2015-05-20, "Does Somebody Want to Sabotage Neuropsychological Evaluations?" This issue deserves continuing investigation and reporting. 

References

Workcompcentral, "QME Rules Take Effect Tuesday," 2015-08-27

The Weinmann Report, www.politicsofhealthcare.com, 4/24/2015

CSIMS, "Comments on DIR Director Christine Baker's Opposition to AB 1542, 8/12/2015

Department of Industrial Relations, letter by DIR Baker, 7/29/2015

Voters Injured at Work, Support letter for AB 1542, Jesse Ceniceros, VIAW president

Brain Injury Association, Support letter for AB 1542, 8/03/2015

California Neurology Society, Support letter, Steve Cattolica, Legislative Advocate, 6/04/15

NEUROPSYCHOLOGY MEDICAL-LEGAL EVALUATIONS (Neuropsyche QMEs): Does someone want to sabotage neuropsychological evaluations?

Assembly Bill 1542 (Mathis and Cooley)

Seemingly erudite and arcane, the question of when to use Neuropsychological QMEs as opposed to Psychology QMEs is not only crucial to industrial medicine and workers compensation, but also  to Medical Provider Networks (MPNs) and Managed Care everywhere (especially to Health Maintenance Organizations or HMOs). We'll tell our readers up front that this publication supports AB 1542. The rest of this article explains why and states some likely consequences of non-support.

Neurospsyche QMEs evaluate brain-injured patients with discrete neurocognitive techniques to make decisions about future medical needs and eligibility for employment. These techniques are separate and distinct from neurological tools such as EEG, EMG, or MRI scanning. The tests neuropsyches use are different from the techniques used by general psychologists who, although well versed in general psychology, are not as highly versed in the evaluation of specific traumatic brain injury as are the neuropsychologists who assess whetheoor not particular brain-damaged workers will be able to return to their usual and customary jobs, or, for that matter, to any job at all.

These evaluations are also critical for employers and for insurance companies. The insurance companies are obliged to cover future medical costs. Wrongful evaluations can result in incorrect job assignments, worsening impairment or disability, generation of useless medical expense, and, for employers, to further impairment of production and additional on-site work injuries.

The fact is that Clinical Neuropsychologists as a sub-specialty within the general framework of psychology has been accepted as such for over 20 years. All the same, the Division of Workers' Compensation (DWC) wants to drop the Neuropsyche QME sub-specialty category and treat all psychologists as a single group. Here's the rub: so doing would mean that brain-injured workers could be assessed by general psychologists who would not have had the specialized education and training that their Neuropsyche colleagues have obtained. By analogy, it might be said that so doing would be akin to putting all the MDs into the same group without consideration of specialty so that an injured worker with a broken leg might be evaluated by an obstetrician.

A further fact is that according to DWC in 2013 there were over 2,000 cases of concussion and that in 2014 there were 633 neuropsyche QME panels as opposed to 8,436 general psychology panels.  The reason for this divergence is clear: the general psychology panels focus on general psychological issues, not on the specific issues of traumatic brain injury, rehabilitation, and cognitive retraining.

If the Neuropsyche QME is eliminated, the brain-injured worker will not get the assessment he needs. From the industry perspective, neither will the employer or the insurance company. The likely outcome under this scenario would be wrongful return-to-work work assignments, or no return-to-work assignment when one such could have been made, wrongful deployment of insurance company resources for unindicated services, and, most sadly of all, failure to dispense indicated future medical treatment that could have been properly recommended by the Neuropsyche QME

For these reasons, we advise favorable consideration of AB 1542.

For private doctors not involved in workers comp, we have a warning: elimination of neuropsyche in workers comp could easily be taken up as model by managed care plans everywhere and by government covered entities eager to cut costs even if it means disenfranchising plan participants.