MALPRACTICE BY UTILIZATION REVIEW?

MALPRACTICE CASE STORY IN PROGRESS

Here's the story we're working on right now: a Utilization Review physician with a California license is being challenged for a decision that is reported to have resulted in harm to a patient. As we go to press, here's what we know: 

1) Patient X sustained brain and spinal cord injury in 2001;
2) Patient X had a three-level cervical fusion;
3) Patient X had been on lyrica since 2008; 
4) Patient X reported relief of symptoms;
5) Patient X did not report adverse effects;
6) UR Doctor Y was referred the case for review;
7) As is the custom in these cases, UR Doctor Y did not interview or examine the patient since so doing is not required by California law covering utilization review;
8) As is the custom in these cases, UR Doctor Y reviewed the documents forwarded by the insurance company, three medical reports that purportedly covered the injured worker's 12-year medical and surgical history;
9) At this point one of the allegations against the UR doctor that could also be directed against the insurance company is that a paucity of medical records was reviewed by the doctor and/or submitted by the insurance company;
10) UR Doctor Y submitted a report advising that the dosage of lyrica which had been prescribed for about 6 years be cut in half;
11) This recommended reduction in medication was accepted by the insurance company which then reportedly declined to authorize the next request for medication refill (we do not know at this time if the actual primary treating physician or PTP agreed, acquiesced,  or rewrote the prescription in accordance with the UR recommendation). We also do not know if the PTP filed an appeal;
12) Patient X did poorly with  the reduced medication and experienced adverse effects;
13) In due course, a California licensed physician got the original dosage restored;
14) Patient X sustained adverse effects that were short-lived and reversed once the original dosage was restored;
15) Patient X now has a lawyer who has instituted proceedings to report UR Doctor Y to the Medical Board of California and to initiate a malpractice complaint. 

In summary, although we believe we know more, the facts as stated above can safely be stated with reasonable medical probability.  In previous op-eds, see also my reprints in workcompcentral,  we've pointed out that Dr. Frantozzi as president of the MBC submitted a letter stating that UR was part of the practice of medicine and required a California medical license -- in this case, the offending UR doctor does in fact have a California medical license which is why the MBC retains jurisdiction in this case. In other cases where the UR doctor does not have a California medical license, there would be no sense in even submitting this complaint to the MBC. Malpractice litigation would be the only choice. In this case, it appears that both options are open. We'll follow up when we know more, Stay tuned. 

MORE, A LITTLE MORE, IS HEREWITH REPORTED: repeal of SB 863 is indicated. 

If you stayed tuned as requested, here's the next bits of information we've gleaned about this patient's plight. The PTP in this case reportedly filed an updated RFA which dutifully got referred back to Utilization Review. A different UR doctor than the one who nixed the original prescription then opined in favor of the original lyrica prescription. The medication was then re-authorized. We're also advised that the Medical Board has now been advised about this case and has been asked to comment on it.  This method of medical practice owes its existence to SB 863. The solution is repeal of SB 863.  Stay tuned, this fight has just begun. 

References

"Medical Board Asserts Jurisdiction Over Utilization Review," workcompcentral.com, by Greg Jones, 2013-06-12;

"Utilization Review Hypocrisy in Velvet Gloves," workcompcentral.com, by Robert Weinmann, MD, 2014-03-26;

"Is Utilization Review in the Cards for 2015?" workcompcentral.com, by Robert Weinmann, MD, 2014-12-03.

IS UTILIZATION REVIEW IN THE CARDS FOR 2015?

Utilization Review (UR) is the process in Workers Comp whereby outside physicians decide whether or not to authorize care prescribed by a PTP (Primary Treating Physician) or consultant called upon by the PTP to advise about the next diagnostic or therapeutic steps that should be taken for an industrial patient or injured worker. Under current California law the UR physician does not have to be licensed to practice medicine in California -- any state license suffices. Proponents of the current system argue in support of the position that where a physician is licensed is beside the point and should not be made an issue. What matters, they say, is that he is knowledgeable in the specialty in which he opines and on this basis should be allowed to approve or disallow authorization for treatment based on accepted peer review guidelines. Opponents point out that the UR physician is actually practicing medicine and should be just as responsible to the state medical board as the PTP.

Opponents assert that some insurance companies go out of there way to find physicians who are more likely than others to be nay-sayers who deny more diagnostic services and treatment than their colleagues. California's state medical board has recognized this awkward situation and is on record saying that UR is part of the practice of medicine and that UR physicians on California cases should be licensed in this state. This writer agrees, but it will take fresh legislation to get this change into law. In fact, three times such legislation actually cleared the California legislature, and three times it was vetoed, twice by Gov. Schwarzenegger, once by Gov. Brown, at the heavy handed persuasion of the insurance lobby. However, the tax circumstances that applied then no longer apply, reason enough to try again and give Gov. Brown a chance to redeem himself.

This topic has previously been discussed in these pages, e.g., "Utilization Review: Hypocrisy in Velvet Gloves," and reprinted in toto in workcompcentral, 2014-03-26.

See also for reference "How to practice medicine without a license," San Francisco Chronicle, 8/29/08.

Willful or wrongful denial of care may constitute "unprofessional conduct." If a doctor with a California license willfully or wrongfully denies care, that doctor may be asked to appear before the state medical board for "unprofessional conduct." No such threat awaits the non-California licensed physician. The non-California licensed physician may not be hauled before his own state board, either -- that board would not have jurisdiction in a California case. As matters stand now, the doctors whose decisions invariably favor cost-cutting by denying care need not worry about professional discipline for wrongful denials of care. This situation begs to be changed. It'll require legislation akin to Texas law which requires doctors who do UR in Texas to be licensed in Texas.

At the moment, doctors licensed in California cannot do UR on Texas patients without first getting licensed in Texas. By contrast, Texas doctors who aren't licensed in California may deny authorization for diagnostic studies or treatment ordered by doctors licensed in California who are trying to take care of patients injured in California. The California doctor ends up carrying the proverbial malpractice bag through no fault of his own. The non-California doctor who actually denied the diagnostic study or treatment skedaddles away paid and unscathed.

One major lobbyist told me he's all for revising Utilization Review law but would need to be assured that the Governor would not veto it this time. As anyone knows who has dealt with Gov. Brown, we do not offer guarantees on what he'll do or won't do. Our job is to persuade.

UR in California is often buttressed by a yes-man mentality from IMR physicians, that is, from Independent Medical Review doctors who also don't need to be licensed in California and, who, to make matters worse, are actually protected by anonymity endowed by recently passed California legislation which also cries out for adjustment, better yet, outright repeal (we refer here to SB 863, DeLeon). The Medical Board of California (under then President Richard Fanozzi, MD) stated in a letter dated 8/25/08 that the MBC supported legislation that "would require a physician who is conducting utilization review to be licensed in California " because that "would provide increased consumer protection over decisions that do not have patients as its primary concern."

Instead, what has happened with IMR is that "consumer protections over decisions that do not have patients as its primary concern" has been weakened.

Organizations that have previously expressed concern with current standards re UR include the California Society of Industrial Medicine and Surgery (CSIMS), California Physical Medicine and Rehab (CPM&R), California Medical Association (CMA), California Applicants' Attorneys Association (CAAA), Union of American Physicians and Dentists (UAPD), Voters Injured at Work (VIAW), LatinoComp, and California Neurology Society (CNS).

We're now obliged to wait to see which one takes the lead on UR and IMR reform in the 2015 legislative year. Our recommendation is that it be a consortium that pools its resources. 

UTILIZATION REVIEW: HYPOCRISY IN VELVET GLOVES

"OBVIOUS BAD FAITH" in workers comp re injured workers is revealed in this story about how an insurance company denied care without making any attempt to reach the PTP (primary treating physician) before issuing a decision. We are not stating the patient's name for obvious reasons. We're not stating the name of the insurance company because they all do it so there's no sense in just one taking today's hit. We're not naming the doctor because we don't have permission. But what we do have is full documentation which can eventually be made available. In the meantime, we'll make this story and details known where it may do some good.


SETTING THE SCENE


A  request was made to prescribe hydrocodone, capsaicin, and lidoderm. The insurance company's Utilization Review (UR) doctor reviewed the request and called the prescribing doctor's office at 10 PM. The UR doctor reported later than no one was there to take the call so he left a message. The prescribing doctor asked later whether or not it was reasonable to make such a call at 10 PM and reported also that no message was left. In other words, the UR doc called at an unreasonable time and then faked or lied about having left a message.  


THE BOGUS APPEAL DENIAL


When the PTP became aware of  the denial, an appeal was filed.  The response by the UR doctor came by telephone at 4:34 AM! This second UR doctor said that a message was left because there was no one present to take the 4:34 AM phone call. Once again no message was left, not that calling PTPs at 4 AM should be considered acceptable practice.  


UTILIZATION REVIEW'S STANDARD OF PRACTICE is woefully short on both ethics and knowledgeable practice. In the case at hand the PTP is knowledgeable re the standards of care re managing pain. The UR doctor's response appeared knowledgeable from textbook information but was seriously flawed in its application to the now denied patient. The denial was rammed through without a good faith effort to confer with the PTP. Two UR doctors made phone calls at unreasonable hours and then claimed to have left messages. The PTP doubts the latter assertion. So does this author. Our experience is that UR is repeatedly conducted in bad faith and to the best of our belief with the knowledge and connivance of the insurance companies.


The recent passage of SB 863 allows Independent Medical Review (IMR) to support bad or bogus UR decisions and then deny the patient not only treatment but also his day in court.  Both UR and IMR are sties in the eye of medicine and need strict utilization control themselves. Better yet, both should be repealed.

SB 626 (Beall) Tackles SB 863 (DeLeon)

Scaramento Shenanigans : SB 626 (Beall) versus SB 863 (deLeon)

(as of Tax Day, 15 April 2013)

Senate Bill 626 (Beall) is to be heard on April 24th by the Senate Labor and Industrial Relations Committee chaired by the Hon. Ted Lieu. We recommend support.

SB 626 (Beall)  is prompted by the passage and implementation of SB 863 (deLeon) from last year. SB 863,  woefully tilted to insurance company interests,  at first seemed unlikely to be taken seriously. Nonetheless,  buttressed by the insurance industry, SB 863 made it across the finish line. Purporting to act in support of the employer community,  SB 863 last year was rescued by the personal intervention of Governor Brown. Showing both political mastery and subservience to insurance company interests, Brown single-handedly rescued it with one day to go in the legislative year.  SB 626 would reverse much of SB 863. Here's why:

Secrecy in Peer Review for IMR reviewiers

Flying in the face of pleas for transparency, SB 863 provides secrecy for Independent Medical Review (IMR) doctors, hand-picked in part because they're expected to serve the overall interests of the insurance companies. To make sure that wrongful twists and turns IMR docs take that buttress insurance company interests aren't investigated by the Medical Board of California (MBC)  these doctors don't have to be licensed in California. They're exempt from the surveillance of the MBC. In addition, their names are not to be released -- students of history know about the notorious "lettres de cachet" that the French nobility used before the 1789 revolution to imprison political opponents.  SB 626 cancels this unwarranted immunity and subjects IMR doctors to the same discipline as doctors licensed in California.

The argument in favor of secrecy has usually been that the insurance companies can't find enough licensed California doctors to do the job. It was conveniently ignored when this argument previously arose that EK Health had so many applicants for utilization review jobs that the company had to create a waiting list.  It was also argued that similar secrecy provisions were already in place for private insurance. This argument is flat out false. Private insurers do not use  a "lettres de cachet" system. The names of their reviewers are made known. It also turns out that the vast majority of injured workers get treatment through their Medical Provider Networks (MPNs). In these cases, where the treatment of an MPN doctor is surveyed, the IMR reviewer's name is not kept secret. The inequity of these comparisons show why the IMR secrecy imposed by SB 863 should be obliterated.

Secrecy in Utilization Review (UR) 

This issue was reviewed by the Office of Administrative Law in 2006 (I submitted a written protest then on behalf of  the Union of American Physicians and Dentists). In general, the careless wording of the law, approved by legislators whose attention to detail should have been better, did not specify licensure in California as a necessary requirement to doing Utilization Review in California. All the law requires is that the UR doctors be "competent to evaluate the specific clinical issues" of the case at hand. In many cases there is debate about this very point, but there is no debate at all about the requirement to be licensed in California -- the latter is simply not required even though the MBC itself has gone on record as saying such licensure should be required.

SB 626 would require California licensure of all doctors doing Utilization Review and/or Independent Medical Review for injured workers in California. 

In fact, the largest labor union in the AFL-CIO, the American Federation of State, County and Municipal Employees (AFSCME),  voted unanimously for this position in 2006 at its International Convention in Chicago. All the same, California AFSCME supported SB 863 last year. We don't know at this writing where California AFSCME stands on SB 626 (yes, we've asked and await reply).

Economics: how California loses $10 million in taxable revenue

Most well respected insurance companies, State Compensation Insurance Fund (SCIF) among them, want their Utilization Review doctors to be familiar with California law. In Texas, for instance, licensure is required for doctors who want to do utilization review there -- so we have an anomalous situation where doctors licensed in Texas are enabled to do UR in California without a California license whereas California-licensed doctors cannot do UR in Texas unless they also get licensed in Texas. California loses about $10 million annual revenue by allowing UR to be farmed out to non-California doctors in other states. The job-killer here is the legislaure which has found a way in a cash-strapped state to ship $10 million in annual revenue to other states.

The March of the Lawyers

The legal issue is to what extent it is or is not proper to eliminate the WCAB (Workers Comp Appeals Board) from overturning decisions. SB 863 butted its way into this controversy by prohibiting workers comp judges and the WCAB itself from adjudicating disputed issue of medical necessity. This contrivance of law then freed the IMR reviewers from their last constrant -- under present law, SB 863 having been signed into law, IMR reviewers may have their names kept secret, need not be licensed in the state where they practice, and need not worry about having egregiously wrong and harmful decisions overturned by any court. That's because SB 863 limits appeals to fraud, conflict of interest,  bias, and mistake of fact -- not easy to determine if the reviewer is entitled to secrecy.

The legal question that arises is whether or not Article XIV, Section 4, California Constitution, has been violated. Here's part of what it says: "all decisions of any such tribunal shall be subject to review by the appellate courts of the state." SB 626 would make sure that it does.

Chiropractic prejudice?

Injured workers who choose chiropractic as their primary source of treatment run into downright prejudice. Doctors of chiropractic, just as doctors of medicine or dentists, are licensed medical providers.  But SB 863 makes sure that some providers are less equal than others by inserting and implementing a provision that limits chiropractors from serving as primary treating physicians (PTPs) after about 24 treatments. The chiropractic profession is rightfully outraged at this preclusion since it forces injured workers to seek out providers other than the ones they've already chosen and with whom they may be satisfied.  It's as though patient-staisfaction or injured-worker satisfaction doesn't  matter. Clearly, to the writers of SB 863, it didn't matter enough. 

Of interest to purveyors of evidence-based-medicine (EBM) is the origin of the limitation to 24 treatments, often also applied to physical therapists where the treatments may've been ordered by PTPs who are MDs or DOs. It appears that the number, 24, is arbitrary, not evidence-based. This arbitrary restriction deprives injured workers from access to their chosen method of treatment while also enhancing  corporate compensation

SB 626 will put a stop to this form of arbitary denial of access to care.

How about old fashioned prejudice against psychiatric disability?

Medical treatment for psychiatric injury has not been precluded by SB 863 although the significance of this level of injury has been diminished and downgraded by the perpetrators of SB 863. Here's how: SB 863 denies psychiatric-injured patients of indemnity benefits. The psychological harm derived from workplace injury is no longer included in the calculation of permanent disability payments.

SB 626 will make this unfair and ignorant preclusion null and void. Depression and other forms of psychiatric disability were given back-of-the-bus status by the perpetrators of SB 863.  SB 626 will put a stop to this arbitrary denial of reasonable permanent disability.

In future issues we'll discuss AB 670 (sponsored by the California Medical Association), opposition sought by the Union of American Physicians and Dentists to SBs 491, 492, and 493, and SB 809 (DeSaulnier) which would mandate that the Board of Pharmacy increase fees to wholesalers (the bill is known as CURES or Controlled Substances Utilization Review and Evaluation System).

As always, reader comments are welcome and anticipated.



   

AB 369 (HUFFMAN) RE "STEP THERAPY" VETOED

ASSEMBLYMAN JARED HUFFMAN found out too late that his vote in favor of SB 863 helped seal the doom of his own bill, AB 369, which was intended to put an end to the merciless use of "step therapy," the method favored by insurance companies to restrict access of patients to  medications prescribed by their personal physicians. 

When Governor Brown signed SB 863 into law, the light went out not only for AB 1687 (Fong) but also for AB 369 (Huffman).  Governor Brown's veto message of AB 1687 said that the bill wasn't necessary because SB 863 was now the law. Both bills passed the legislature on a bipartisan basis, but both bills were vetoed by Gov. Brown. In this piece, we'll discuss AB 369 which this writer supported (see June 2011 issue of www.politicsofhealthcare.com).

"Step therapy" is the process by which patients are required by insurance companies, HMOs, PPOs, or others to try specified generic medications before they're allowed to try better, newer, or more expensive medications that may have actually been prescribed by their treating doctors.  The purpose is cost control even if patients are harmed in the process.

 In his veto message for AB 369 Brown acknowledged that "this bill would prohibit a health plan or insurer from requiring a patient to try and 'fail' more than two medications before allowing a patient to have the pain medication prescribed by his or her doctor." In fact, the part about "two medications" was already a compromise, but that wasn't enough for the insurance companies, health plans, or Governor Brown who is seeking their support for other issues.

In the veto message, the Governor used one of the worst aspects of SB 863 to justify his veto decision against AB 369. Here's what he said: "Independent medical reviews are available to resolve differences in clinical judgment when they occur, even on an expedited basis."

Keep in mind that in workers comp the names of the independent medical reviewers are supposed to be kept secret. Keep in mind that in the private plans the decision means that patients will be obliged to rely on medications that their personal physicians had purposefully not prescribed.

Brown said that "any limitations on the practice of  'step-therapy' should better reflect a health plan or insurer's legitimate role in determining the allowable steps." In other words, we're told that the health plan's cost-control panel has a "legitimate role" in overruling the strictly medical decisions of our personal physicians. That's the law that Governor Brown favors. Moreover, had AB 369 become law, it would have run counter to the aims and objectives of SB 863 which puts anonymous and often non-California licensed doctors who have not interviewed or examined the patients in control of properly licensed treating physicians who've actually interviewed and examined the patients.

Starting 1 January 2013, an Independent Medical Review system will replace the current Utilization Review (UR) system. The chief differences are that the IMR doctors will have their names protected and will only be able to be challenged for bias, fraud, or conflict of interest, a challenge that may be difficult to undertake if the the doctors' names are protected. The current system of UR is subject to challenge in court.

Governor Brown's veto of AB 369 is harmful to patients and is favorable to the financial interests of the insurance companies and health plans. IMR doctors and their employers should be subject to challenge in court.  Governor Brown's veto prevents lawyers from using AB 369 to litigate against the restrictive treatment provisions incorporated into SB 863. 

Huffman joins Fong in that both legislators cast incompatible votes and helped in the downfall of their own respective bills. The master legislator in this case turns out to be Brown. Wie Schade (too bad).