Injured Workers Lose Again

Ordinarily, California's  injured workers have issues to worry about other than how doctors do their billings. Not so anymore. Here's why: the change over from the Official Medical Fee Schedule (OMFS) to the RBRVS system has come with severe restrictions against injured workers and their doctors. Even though the OMFS paid near the lowest in the nation, insurance companies weren't satisfied. Here's an example: under the OMFS consulting doctors were allowed to bill for review of medical records. Such reviews often entail studying boxes filled to the brim with medical records. These cases are often complicated by divergent opinions from treating doctors, utilization review denials by doctors, many of whom are unlicensed in California, and by doctors who haven't reviewed the patient's complete medical file. Sometimes the shear complexity of injured workers' injuries is overwhelming, e.g,  as when multiple injuries occur, for instance, a fall from a ladder causing broken arms or legs,  neck or back injury, and a head injury.

Treating doctors and consultants often spend extended amounts of time on such cases. Hours just to review medical records is common and until adoption of the new billing codes was compensated under Code 99358. That code has now been eliminated. The next step for the doctor would be to file an independent report for which the code was 99080. That code has also been eliminated even though such reports quite commonly would be around 20 typed pages and would also have required lengthy preparation.

As a further slap in the face, the actual consultation codes, e.g., 99245, have also been eliminated and have been replaced by RBRVS codes based on Medicare that cost the insurance companies less despite a minimal increase in Medicare.  In a nutshell, consultation for and treatment of complicated injuries has become so prohibitive that primary treating doctors can often not get either. Recently, this writer had a case turned down by a teaching hospital: we were told outright that they don't accept workers' comp cases anymore (i.e., their reimbursement level was cut below the minimum standard the hospital felt it could live with).

A few years ago, when an attempt was being made to push SB 923 (Deleon)  through the legislature, Stuart Bussey, MD, JD, family practice specialist and President of the Union of American Physicians and Dentists, Local 206 of  the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, testified that passage of the bill could tie his hands when specialty consultations were needed but were also unavailable. He said that this situation could leave him holding the malpractice bag. The bill crashed but some of its odious provisions were resurrected in SB 863 which is now the law and which mandates replacement of the OMFS by the RBRVS.

Here's the rub: the deletion of the 99358 code for review of medical  records means that many specialists will be unable to review cases as they should. The deletion of the 99080 code means that consultants, if and when they can be obtained,  will not be able to file comprehensive reports for  their patients. It means that Independent Medical Review (IMR) doctors may be much more likely to make decisions (75% of which deny care) without reviewing medical facts.

The billing code changes are a boon for insurance companies because it lowers their administrative expenses. It will also lower actual medical and surgical costs since absent these consultations and reports definitive medical and surgical steps will not be implemented. In chronic pain patients, for instance, it's likely to decrease physicians' treatment options. In this way chronic pain patients may end up on chronic opioids longer than would otherwise be necessary.  It's a chilling thought when this example is extended to other diagnoses requiring complicated orthopedic, neurosurgical, and psychiatric care.

As a result of SB 863, Independent Medical Review (IMR) Physicians will review the necessity of care after Utilization Review (UR) doctors have first had their shot. Readers of this column know that in an op-ed in the San Francisco Chronicle, 8/29/08, entitled "How to practice medicine without a license," it was pointed out that UR doctors don't have to be licensed in California (union leaders should be interested in knowing that AFSCME, at its International  Convention in Chicago in 2006, passed a resolution against this practice). 

Upshot: not only does the UR physician not have to interview or examine the injured worker, the UR doc does not even have to be licensed in California, the state in which he practices. Errors the non-California-licensed UR physician make cannot be evaluated by the California Medical Board. Alleged errors cannot be evaluated by the medical board of the state in which the UR physician is licensed, either, because the out-of-state board doesn't have jurisdiction in California.

All  of this largesse is now extended to the IMR physicians thanks to SB 863. The position of the insurance industry is now buttressed by the deletion of codes 99245, 99358, and 99080. Once again the injured worker takes it in the teeth. Nothing new in that, is there? It's just another injury to the already injured worker.

We recommend repeal of SB 863 and support for SB 626 (Beall) or similar legislation since Senator Beall pulled SB 626  in 2013.

 

OPPOSE PROPOSED WORKERS COMP REFORM MEASURE, BRIEFLY KNOWN AS SB 863, A GUT AND AMEND VEHICLE

WHY THE PROPOSED WORKERS' COMP REFORM MEASURE WITH A SHORT HALF-LIFE AS SB 863 SHOULD  BE DEFEATED  

SB 863 was originally chosen to be the gut-and-amend vehicle for this proposed workers' comp travesty.  We have revised our own original text. Where it previously said SB 863 for a few hours, it now only says "the proposed workers' comp reform measure" albeit with a hiss and a spit every now and then.

We previously opposed SB 923 because it would shove the Medicare RBRVS down the throats of injured workers and their treating doctors. The idea of this bill was to replace the low pay Official Medical Fee Schedule (OMFS) with the still lower paying Medicare RBRVS.  The upshot would be loss of access to specialty care.  It would foist on Primary Treating Physicians (PTPs) a level of care requirement beyond their training. 

We now find that the provisions of SB 923 are hidden within 279 pages of proposed legislative language. When 279 pages of a legislative proposal are sprung at the end of session we suspect that somebody is getting ambushed. In this case it's the injured workers and their access to specialty care.

We have supported AB 1687 which would open up the Utilization Review (UR)  process a little and give injured workers a chance. The proposed workers' comp reform measure wipes that opportunity out because it proposes an Independent Medical Review (IMR) process that will protect the worst aspects of the current UR process, namely, the allowed process of letting doctors who don't interview or examine specific injured workers to overrule the decisions of the doctors who have interviewed and examined them.

The 279 pages referenced above arrogantly protect this unfair system by establishing an IMR process that will be even harder to appeal against than the current already obtuse UR system. 

One is obliged to ask how a system that alleges it'll put an additional $700 million into Permanent Disability (PD) could be bad for injured workers. The answer lies in the claim that it'll also reduce costs by $1.4 billion. We are not told who will get the left over $700 million.  We are not told that management groups of non-physicians who charge groups of treating doctors for administrative services will be allowed to raise their management fees. While they may pay the PTPs a little more, they're not obliged to do so.

Here's what else the 279 pages tell us, well, some of it, anyway:

The proposed workers' comp reform measure currently plans to impose $150 mandatory filing fees for liens. Once the doctors are then short-changed and obliged to file fees for liens anyway, they'll reconsider if they should stay in the system.

The proposed workers' comp reform language  currently plans to impose a copy service fee that will further slow down injured workers' ability to prove their workers' comp cases.

The proposed workers' comp reform measure will curtail some of the features currently allowed by the otherwise already restrictive AMA Guides to Impairment currently used to establish reimbursable impairments re Activities of Daily Living (ADLs).

Sadly, the newly proposed workers' comp reform measure  has earned the right to be disgraced before it is defeated. It also exposes how the gut-and-amend process may be abused and misused.

WORKERS COMP AMBUSH IN PROGRESS

WORKERS COMP AMBUSH sprung, well, almost!

Secretly, furtively, behind the proverbial closed doors that skilled political operatives deny exist, a carefully crafted bill has been sewn together by masters, namely, Angie Wei, legislative director of the California Labor Federation (CLF) and Sean McNally, vice president for corporate and government affairs at Grimmway Farms. The proposed legislation will boost profits for management groups while reducing access to specialty care for injured workers. CLF will justify the slashed medical benefit to injured workers by pointing out that the legislation will increase permanent disability benefits to injured workers by $700 million. CLF may not want to admit that the proposed legislation will also cut about $1.4 billion in costs in part by reducing access to specialty care. CLF may not disclose that many injured workers who need advanced or specialized medical care cease to become dues-paying union members. So what they think won't matter.

Voters Injured at Work (VIAW) takes particular offense at having the Official Medical Fee Schedule (OMFS) supplanted by the Medicare RBRVS. SB 923 (Deleon) failed last year but is still on the current agenda as a two-year bill. Its provisions are included in the current concoction that CLF and Grimmway have grimly crafted.  This column has already exposed who stands to benefit from SB 923 (see our glossary). This provision as either an independent bill or as part of a so-called reform package is designed to reduce payments to specialists, particulary focussing on procedures. Its design supposedly  increases payments to primary care physicans (PTPs) -- but neither SB 923 nor the so-called reform package tell you which management groups supporting these bills derive their income by charging management fees to PTP groups such as US Health Works. Hence, one of the beneficiaries is the management entities that deploy salaried physicians.

VIAW puts it this way: "Injured workers need both primary care physicians and specialists, but VIAW cannot support any proposal that funds an increase for one class of physicians at the expense of another."

The California Society of Industrial Medicine and Surgery (CSIMS) pointed out that "Unfortunately, the unions didn't ask any injured workers to help with the legislation and the large employers didn't ask small employers."

The Senate Republican Caucus stated that "the fact that insurers and non-unionized, non-self-insured/smaller employers are not at the negotiating table should be cause for some concern."

Not all stakeholders have fully displayed their own hands so far. We await up to date comment from the California Medical Association (CMA), the California Applicants Attorneys Association (CAAA), the Union of American Physicians and Dentists (UAPD), and the American Federation of State, County and Municipal Employees (AFSCME, AFL-CIO). We await action from physicians' specialty organizations such as the California Neurology Society (CNS filed a  letter against SB 923), and the professional groups that claim to represent other specialties such as the orthopedists, the physical medicine and rehab doctors, and specialists in pain management.

CMA's position on SB 923 is "oppose unless amended" while the UAPD's position is "watch." Watch what, we wonder?  Will CMA expand its "unless amended" statement and lobby legislative offices?

Next in line for concern and comment is Utilization Review. This column has already  discussed AB 1687 (Fong), supported by the UAPD and CSIMS (see our glossary again).  The reform package adds a new level of bureaucracy. The Labor Code would be altered such that treatment or medication disputes, including surgical options, would go to an Independent Medical Review (IMR). Like the current Utilization Review (UR) process, the IMR assignee would not interview or examine the patient, thereby preserving the worst part of the current UR process. The only grounds for appeal would be fraud, bias, or conflict of interest. We await commentary and action from CAAA on this method of protecting wrongul UR.

The outlook is for the complete ambush to be sprung at the end of the current legislative session. Will a hasty vote by many legislators who haven't been adequately briefed come down to a last minute trade-a-vote exchange?

References for further study

"Medical Development Trends in California Workers' Compensation, Accident Years, 2002-2010, California Workers Compensation Institute

"Medical Benefit Delivery in California Workers' Compensation, changes in Network Utilization and Reimbursement, 2004-2010, CWCI

"California Workers Compensation, 2012," prepared by Mark Gerlach, California Applicants' Attorneys Association, January, 2012

"Workers' Compensation Reform: Undoing the Damage of Schwarzenegger's Rules," March, 2012, California Labor Federation

"How to take away even more Care from Injured workers," Robert L. Weinmann, MD,  California Progress Report, 5 July 2011

"How to practice medicine without a license," Robert L. Weinmann, MD, San Francisco Chronicle, 8/29/08

"Utilization Review as a gift to insurance companies," Totalcapitol.com, Bob Weinmann, 3/11/12

"UR a battleground in Comp Reform, Greg Jones, Western Bureau Chief, workcompcentral.com, 5/25/12

"Reforms would cut $1.4B to fund $700M benefits increase,"  Greg Jones, Western Bureau Chief, 8/10/2012

"Deal on California workers' comp likely," Mark Lifsher, Los Angeles Times, 8/09/12

"Reform appears to be on its way to California's workers' compensation system once more," California Society of Industrial Medicine and Surgery, 8/09/12

HOW SB 923 WILL PROTECT INJURED WORKERS OUT OF THE HEALTHCARE THEY ALREADY HAVE

THE INJURED WORKERS WHO WILL BE HARMED MOST IF SB 923 (De Leon) becomes law are those whose jobs predispose them to serious injuries, e.g., construction workers and farmers, telephone repair workers, restaurant workers, freight handlers, even health care personnel (one health care worker was killed on the job in 2011) and other maintenance workers. SB 923 should bite the dust this year just as it did last year.

Ostensibly, the reason for SB 923 is to enable use of the Medicare RBRVS to pay for physicians' services to injured workers. The idea is to reduce payment to specialists so that payment to primary treating physicians (PTPs) can be increased. The proposed mechanism is to replace the current Office Medical Fee Schedule (OMFS) with the Medicare RBRVS.

But there's a catch. While SB 923 will reduce payment to specialists, it will not necessarily increase pay to the PTPs. In fact, the bill as currently written does not guarantee this outcome. In a personal letter by this writer to Daniel Crowley, Chairman and CEO of US HealthWorks, 6/24/2011, it was pointed out that SB 923 will cause specialists to withdraw from providing services to injured workers. Speaking to one of the committees that heard the bill last year, Stuart Bussey, MD, JD, president of the Union of American Physicians and Dentists, Local 206 of the American Federation of State, County and Municipal Employees (AFSCME, AFL-CIO) acknowledged that SB 923 might give PTPs a temporary "boost." Bussey also said that it would leave him, as a PTP, "holding the bag" for malpractice when he couldn't get specialists in timely fashion for seriously injured workers. Eventually, the UAPD went "neutral" or "watch" on the bill. The bill failed when a consortium of opponents teamed up to oppose it, an unlikely coalition led by the California Society of Industrial Medicine and Surgery (CSIMS).

Opposition to SB 923 also included the California Medical Association,  the California Orthopedic Association, the California Chiropractic Association, the California Neurology Society, the Interfaith Community of Los Angeles, the League of United Latin American Citizens, Voters Injured at Work, Latino Comp, La Raza Roundtable, and numerous individuals including injured workers who understood that the bill would protect them out of the healthcare protection they already had.

The Other Catch is how SB 923 is sponsored and how US Health Works gets paid. When USHW gets paid for providing care to injured workers, a portion of the money goes to the non-physician management company and to the investors who own the USHW clinics. Not all the money that the Medicare RBRVS conversion raises would go to the PTPs. Payment for management services is paid by the physicians, the PTPs. SB 923 as written doesn't preclude USHW from increasing its management fees to the PTPs. Once the doctors' group has received this  pay increase thanks to passage of SB 923 the next step will be to share it with the management group. Some pundits think that this factor is the real reason USHW executives are pushing for passage of SB 923.

Does the OMFS pay too much? The OMFS was set up in  1975 as a market-based mechanism (the Medicare RBRVS is not). Specialists are paid 5% less for specialty procedures now than they were in 1986. By contrast, the Evaluation and Management codes (E & M codes) for PTPs have been increased three times since 1986.

Unpredicted consequences of SB 923 are likely to include loss of Medical Provider Networks (MPNs) when the MPNs lose enough specialists such that they no longer meet the standards of the Labor Code pursuant to the reforms implemented during the Schwarzenegger years since 2004 and passage into law of SB 899. Some states such as Hawaii and Texas had to revise their Medicare-based fee schedules to bring the specialists back in -- thereby defeating the very purpose of having voted in the Medicare RBRVS. The anticipated reductions in pay to the specialists would be from 20 to 48% under SB 923 -- at that rate many specialists would be obliged to quit the program. Robbing Peter to pay Paul is not sound economic policy.

Conclusion: SB 923 qualifies for our "bite the dust" recommendation. The OMFS is already low cost. Updating it is recommended. Getting rid of it would endanger the provision of care to injured workers.