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 These situations point out why SB 863 needs to be substantially modified or repealed.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.

Obamacare, AB 76, SB 71 -- government deception

Governor Brown's veto message for AB 76 is a  sublime essence of deception. Here is the actual  text: "I am returning Assembly Bill 76 without my signature. This bill is unnecessary as I am signing a similar measure, Senate Bill 71. A Constitutional Amendment has also been introduced that will preserve the existing Constitutional and statuatory requirements of the California Public Records Act. -- Sincerely, Edmund G. Brown, Jr.

Readers of this column already know that Brown signed SB 71 while vetoing AB 76. Our readers also know that SB 71 is a mirror image of AB 76. So Brown didn't veto anything. Instead, he has contrived to project an appearance of preserving access to public records with a huge cutback in the only significant benefit injured workers managed to wrangle out of last year's SB 863.

Both bills were run through the legislature at the same time, one in the Assembly, the other, in the Senate. When I spoke to one of the Senators who seemed well disposed to calling the Assembly bill, AB 76, into question no mention was made of the parallel bill on the Senate side, SB 71, lurking around the corner although both bills had the same anti-injured worker provision about return-to-work.

SB 71 pays lip service to the provision in SB 863 that appropriated $120,000,000 per year to pay for a return-to-work program for injured workers. The slap in the face to injured workers is the provision of SB 71 that was also included in AB 76: "the program applies only to injuries that occur on or after January 1, 2013."

When SB 863 was passed this $120,000,000 benefit was applied to all injured workers, not just  injured workers whose injuries occurred on or after January 1, 2013.  It was a key reason why this otherwise hostile bill to injured workers got support from the California Labor Federation which collaborared  with big business (Grimmway Farms) to get it passed. 

Although it is unlikely that this sophisticated a plan was entirely worked out in advance, it has turned out to be stunningly successful for Big Business.

As for Obamacare, we'll next discuss how the Independent Payment Advisory Board (IPAB) will be empowered to work first to limit the franchise to the elderly and then to restrict access to care to all participants while Congress and possibly even IRS fight to remain exempt from its alleged protections.

SENATE BILL 626 (BEALL) RESTORES EQUITY AND BALANCE TO WORKERS' COMP, THREATENS SB 863's STRANGLE HOLD ON WORKERS COMP

"HOW TO PRACTICE MEDICINE WITHOUT A LICENSE" WAS THE TITLE OF MY OP-ED IN THE SAN FRANCISCO CHRONICLE, 8/29/08.  The inequities described in that piece have been operative ever since -- but now Senator Beall's legislation, SB 626, will try to restore balance and equity. Comments from the Legislative Counsel's Digest, 2/22/13 include the following (italics):

"Existing law requires an employer to establish a medical treatment utilization review process and ... prohibits any person other than a licensed physician from modifying, delaying, or denying requests for authorization of medical treatment for reasons of medical necessity ... Existing law also provides for an independent medical review process to resolve disputes over a utilization review decision for injuries occurring on or after January 1, 2013,  and for any decision that is communicated ... after July 1, 2013 ...  This bill would revise these provisions to require that medical treatment reviews be conducted by physicians or medcal professionals ... who hold the same California license as the requesting physician (underlining added) ... Existing law prohibits a workers' compensation administrative law judge, the appeals board, or any higher court from making a determination of medical necessity contrary to the determinationn of the independent medical review organization ... This bill would delete that provision (underlining added)."

The current inequity is that under current law pursuant to SB 863 an Independent Medical Review (IMR) process is empowered to resolve disputes over utilization review for injuries occurring on or after 1 January 2013 and for decisions communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury. In this way injured workers are deprived of diagnostic studies or treatment recommended by their Primary Treating Physicians (PTPs). The dispute then gets settled by the IMR process. Unfortunately, under current law,  neither the UR doctors nor their IMR counterparts need be licensed by the Medical Board of California. No matter how harmful or egregiously wrong their decisions are they are not subject to the same discipline as the PTPs all of whom are licensed in the states in which they practice.

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO,  passed a resolution at its International Convention in Chicago in 2006. The resolution stated 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."

SB 626 would mandate that medical treatment reviews and independent medical reviews be done by physicians or medical professionals "who hold  the same California license as the requesting physician."

Incredibly, under current law, a cadre of secret doctors has been empowered. The names of the IMR doctors are "protected" by law, that means, concealed from view. Our previous blogs on SB 863 discuss this ablation of due process in more detail.

SB 626 would delete the requirement that that IMR doctors' names be kept secret.

California AFSCME's stand in favor of SB 863 was inadvertently a stand against its own organization's International Resolution. The political pressures to do so at the time were intense (Governor Brown wanted it -- see previous blogs re why).  We look forward to California's AFSCME coming on board SB 626.

Not only that. SB 863 actually prohibits due process and fair play because it prohibits workers' comp administrative law judges, the WCAB,  or even higher courts from making determinations of medical necessity that would set aside an IMR ruling against an injured worker. SB 626 would delete this provision.

More to follow. Stay tuned. But first, get on board -- readers may contribute their own comments on-line directly to this blog.

Here is a comment from CRIS FORSYTH, CHIEF OF STAFF, SENATOR JIM BEALL, DISTRICT 15: "Relative to your question regarding comments ... advocating for the bill.  I cannot fathom more eloquent prose than that which you have already professed."

Well, Cris, we'll do our best: SB 626 is courageous legislation that would restore honor to a process that has become the domain of insurance companies and their allies. It's also an American political anomaly that some parts of big labor identify more with business interests than with workers and would let injured workers be deprived of the medical and surgical treatment they need and heartfully believed they earned

SB 863 ALERT: WATCH FOR ASSAULT ON NON-CALIFORNIA LICENSED UTILIZATION REVIEW AND SO-CALLED INDEPENDENT MEDICAL REVIEWERS : Stay tuned to this blog. We expect to report incrementally from Sacramento as we learn what's happening in our Capitol.

Previous blogs discuss SB 863 which Governor Brown signed into law on the last possible day of the 2012 legislative session. Massive efforts by injured workers' interests to  alter this bill are expected. 

OBAMACARE IN THE STATE OF THE UNION ; WRONGFUL DENIALS OF CARE IN CALIFORNIA

WILL PRESIDENT OBAMA'S STATE OF THE UNION MESSAGE CONTAIN MEANINGFUL COMMENT RE THE AFFORDABLE CARE ACT?

"I will ensure that no government bureaucrat gets between you and the care you need." These words tumbled effortlessly from a confident President Obama in the autumn of 2009 but were immediately set aside in favor of more bureaucracy than healthcare has ever known. Healthcare pundits know that Obamacare as currently written allows for regulation of healthcare by non-physicians through a mechanism known as the Independent Payment Advisory Board (IPAB) whose concern is fiscal health as opposed to the health of patients. The Affordable Care Act (ACA)  also has a built-in mechanism starting in 2014 that will require $1.5 trillion in costs for families and businesses according to Stephen Frank, publisher & editor, California Political News and Views, 9/21/11. This dire prediction for the ACA worries fiscal conservatives. If the estimate is accurate it should worry everyone. We'll wait for President Obama to set our concerns aside before we comment further on Obamacare's managerial accounting.

Remember: the IPAB was once known as the IMAB or Independent Medicare Advisory Board. When the nation's Medicare patients realized they were being targeted for denial of care and supervision of allowable care as a form of  rationing, they raised a hue and cry. The IMAB was brought down. When the storm subsided, it was resurrected as the IPAB.

In the second debate with Governor Romney the president was asked about the make-up of the IPAB. He said it would be "doctors et cetera." There is nothing in the language creating the ACA that requires even one physician to be appointed to the IPAB. That's because, although expanded medical care was the ostensible reason for the ACA,  fiscal control has always trumped medical excellence in its design. The provision of the latest and best in medical care is spoken about but the IPAB is there to restrict what's actually offered. Congress itself wants none of it and opted out of the ACA.  Nonetheless, it's likely that at least one physician who is cooperative enough with the administration will be appointed to the IPAB. During the debate when the president said "doctors et cetera" he gave a false assurance that Governor Romney didn't recognize as such and let pass. We hope the the president will do better in the state of the union speech.

HOW ABOUT CALIFORNIA?

WILL CALIFORNIA  STOP DENIALS OF CARE BY IMR DOCTORS WHOSE NAMES ARE KEPT SECRET OR WHO ARE NOT  LICENSED TO PRACTICE IN CALIFORNIA?  

WILL INSURANCE COMPANIES IN CALIFORNIA BE ALLOWED TO CONTINUE TO RETAIN UR PHYSICIANS WITHOUT CALIFORNIA LICENSES?

We await legislation to abolish secret review of utilization review (UR) denials by so-called Independent Medical Review (IMR) physicians whose names will be concealed by law as mandated by SB 863. We await restoration of the WCAB's ability  to overrule wrong and harmful decisions that deny medical care to injured workers. We also still await law that requires physicians who do Utilization Review and Independent Medical Review to be licensed in California. As matters stand now, doctors not licensed in California can do UR and IMR reviews and deny care to injured workers in California. As the law stands now, the non-California-licensed physician cannot be disciplined in California even for the stupidest and most harmful denials of care since these doctors aren't subject to the medical board of this state. The doctor may be licensed in other states but those other states don't have jurisdiction in California. The time to correct this travesty is overdue. Labor unions and legislators should  revisit SB 863.

As matters stand now, a company named Maximus from Maryland is seeking doctors to do Medical Necessity Reviews for $150 to $200 per review. We do not have reliable information at this time as to what percentage of cases reviewed by Maximus end up in denial of care for injured workers. We don't know how much Maximus will actually pay for each review or how the money will be divided up -- we do know that the doctors are being offered a small enough percentage so that the deal remains attractive in terms of corporate compensation. We presume that the labor unions around the state would be interested in the details. Do we guess wrong? Tell us where we may've gone astray, please!

We will be adding to these comments on Obamacare, SB 863 in California, and wrongful denials of care  over the next few days. Stay tuned. These issues are hot potatoes.

IN-STATE V. OUT-OF-STATE UTILIZATION AND INDEPENDENT MEDICAL REVIEW

OPEN LETTER TO ASSEMBLYMAN RICHARD PAN, MD
Chair, Assembly Committee on Health
15 January 2013

Dear Doctor Pan,

I am asking you to carry or sponsor legislation to repeal language within SB 863 that allows doctors who are not even licensed to practice medicine in California but who are allowed to do utilization reivew here to have their names kept secret. This secrecy is a way of making it even more difficult than it already is for injured workers to appeal wrongful denials of care.

SB 863 became effective as of 1 January 2013. An injured worker who is victimized by a stupid and harmful denial of care will not be allowed to file an appeal unless fraud, bias, or conflict of interest is suspected. The trouble is that since the legislation allows these doctors' names to be concealed, it will be truly challenging to file an appeal based on fraud, bias, or conflict of interest. The real problem, actually, is that the WCAB is no longer empowered to reverse wrongful decisions that harm injured workers. As a doctor, I don't think you would favor denials of treatment you prescribed to be done by doctors whose reports and names are not fully known to you. Am I wrong about that?

As matters stand now traditional Utilization Review does not need to be done by doctors who are licensed in California and are therefore responsible to our state medical board. Insurance companies can scour the country in search of malleable and cooperative doctors who will deny care on a myriad of technicalities no matter how harmful these denials of care are to injured workers. This injustice cannot happen in Texas. In Texas if California doctors want to do utilization review the doctors must be licensed in Texas. Since each state's medical board's jurisdiction is limited to its own state, many of the  doctors doing utilization review or independent medical review in California may not come under the medical board jurisdiction of any state at all for their UR or IMR work in California.  This largesse is estimated to cost California $10,000,000 annually --  an unwise choice for a state with financial woes.

Richard Fantozzi, MD,  as president of the California Medical Board in 2008, told Governor Schwarzenegger that this step "would provide increased consumer protection over decisions that do not have patients as its primary concern." At the request of the insurance companies and the Chambers of Commerce, Gov. Schwarzenegger vetoed a bill that would have corrected this abuse. Under similar pressure, Gov. Brown also vetoed legislation that would have corrected this abuse. SB 863 now makes the denial process even more vicious since the IMR doctors' names will be protected.

That's why treating physicians and their patients need you and like minded colleagues to amend SB 863 so that injured workers get fair and equitable access to treatment. What say you?

Yours truly,

Robert L. Weinmann, MD,  Editor, www.politicsofhealthcare.com

References

WorkCompcentral, 1/12/13, Comment by this writer to News Article by John P. Kamin, Legal Editor

Work Compcentral, 1/10/13, "Out-of-state v. In-state Utilization Review," Robert Weinmann, MD

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

OUT-OF-STATE VERSUS IN-STATE UTILIZATION REVIEW (UR)

UNDERSTANDING CALIFORNIA'S BIAS AGAINST INJURED WORKERS

David J. DePaolo says "I don't understand" in his article entitled "Out of State UR" dated January 4, 2013. I do understand. At the end of his article, DePaolo declares that "mandating that utilization review be conducted by physicians located in the state doesn't make any logical sense. I'm sure someone will try to enlighten me."  Who can resist such an invitation? Not me!

DePaolo states in his piece that "Dr. Robert L. Weinmann, of San Jose, Caif., an openly critical and long time advocate of requiring in-state residency for reviewing doctors in the California system argues that physicians who are not licensed in California will not be responsive to the needs of California residents." Well, DePaolo at least named the city correctly. The mistake is the assertion that I would require in-state residency. I have written in other articles and have testified in committee hearing that in-state residency need not be a requirement whereas in-state licensure should be. The Medical Board of California (MBC) agrees. In a letter dated 8/25/08, Richard Fanozzi, MD, board president, stated that the MBC supported a bill that "would require a physician who is conducting utilization review to be licensed in California" and that so doing "would provide increased consumer protection over decisions that do not have patients as its primary concern." This "increased  consumer protection" has been steadily and successfully opposed by the insurance industry.

The American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, took a strong stand on this issue at its International Convention in Chicago in 2006.  In a resolution entitled "Unions fight to protect injured workers" it was resolved 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." Right on!

The California AFSCME nonetheless voted in favor of SB 863 which would appear to suggest a schism with the international's resolution adopted in 2006. SB 863 continues the anti-injured worker policy that so far has been  rescinded three times by the California legislature only to have two Governors veto the efforts (Schwarzenegger twice, Brown once, both times supported by the Chambers of Commerce and the insurance industry generally).

Now here's the rub which, I believe, Attorney David DePaolo understands: as matters stand now in California, Utilization Review (UR) doctors need not be licensed in California. In fact, SB 863 carries this laissez faire even further. It turns out that SB 863 mandates Independent Medical Review (IMR) doctors' names to be protected, that is, kept secret. IMR doctors will also not need to be licensed in California. Their protection under the new law goes even further: these doctors won't be able to be challenged for blatant stupidity, being flat out wrong, or for decisions harmful to patients. The only grounds for challenging the IMR doctors will be bias, fraud, or conflict of interest (it may be difficult to challenge someone for bias if one doesn't know his name).

DePaolo summarizes my main argument as follows: "Because reviewing doctors out of state can't be controlled by California licensing authorities, insurance companies are then free to 'scour the country' for doctors who are willing to give favorable reviews to the insurers, Weinmann told WorkCompCentral."

DePaolo argues that insurance companies don't have to "scour the country" because "there are plenty of in-state physicians who would be willing to opine such ... it doesn't matter where the doctor is located." If that is so we have to ask why in previous years the insurance industry has argued that there aren't enough doctors in California willing to do UR and that is why they've had to go out of state to recruit doctors to do UR. In any case, my opinion is that in-state licensure should be required, not in-state residency. In the meantime, we thank DePalo for his vote of confidence in California's doctors.

DePaolo admits that in Texas the utilization review doctors and their companies must be licensed in the state although "the companies and providers may be located outside of the state." What now propels this issue to the forefront once again is that Illinois recently passed utilization review legislation and is working on rules and regulations to implement the process. De Paolo referred to David Manchetti of Cullen, Haskins, and Menchetti in Chicago who stated that utilization review doctors "need to be familiar with how medicine is practiced in Illinois ... which may be different from how it's practiced in Indiana or India." The phrase, "how it's practiced," is the key to everybody's pending disaster. The point is that there are ways to diagnose and treat broken bones that are correct and that are incorrect. Our concern should be to promote the former, deny the latter, and make little or no allowance for whether or not we're talking about Illinois, Indiana, India, or California. But that's not how it works in practice. The truth is that some insurers are widely believed to "scour the country" for compliant and subservient doctors just as some applicants' attorneys are believed to seek out equally compliant doctors for their clients. The process has become increasingly adversarial with the passage of SB 863.

So here's the summary: as matters stand now, UR and IMR doctors need not  be licensed in California and need not be responsible to the Medical Board of California.  These doctors are also not subject to discipline by the medical boards of their own states for review decisions in California because those boards don't have jurisdiction in California.

Our position is that UR and IMR doctors should be licensed in the states where their decisions are used. Residency is not the issue. The issue is public responsibility through the state medical board. The letter from the MBC and the resolution by the International Convention of AFSCME got it right.

As it stands now, SB 863 promotes misguided public policy with reference to Utilization Review (UR) and Independent Medical Review (IMR). These aspects of the bill deserve to be challenged, revised, or repealed.  In-state licensure for doctors who do UR and IMR should be mandatory.

CALIFORNIA WORKERS COMP DEVELOPMENT

SB 863 FALLOUT BEGINS TO SETTLE ON HAPLESS HEADS

It doesn't appear that DWC will have time to consider the comments submitted on DWC Forums and to that extent the request for comments seems to have been a charade. The idea now is to put the newly proposed regulations into effect on an emergency basis and then to consider comments later, weeks or months from now. Our information is that many current liens that are awaiting payment will be held until the Spring of 2013. In the meantime, the $150 IMR lien filing fee will go into effect for the Independent Medical Review system and so will the $325 IBR fee for the Independent Billing Review system.

The presumption is that these onerous requirements will drive many providers out of the system altogether. In due course DWC will adopt the requirements that it wants if the insurance companies don't object too strenuously. Insurance companies will be conveniently enabled to pay providers at 65 to 70% of the fee schedule. Then they'll dare the  provoked providers to try to collect the rest.  The requirement to pay as much as $475 for the right to challenge a wrongful denial of care and a rejected bill is expected to encourage providers to drop out of the workers' comp system.

In other states where similar reductions took place, so many doctors dropped out that the theorized dearth of physicians became real enough so that fees were restored and even raised (Hawaii is an example). The trouble is that the perpetrators of these adverse changes managed to destroy faith in the system so that many of the doctors didn't return. That created a permanent deficit of access to care. So far that looks to be where SB 863 is going.

Early lien filing may be the PTP's only option. It looks as though injured workers lose again even though Permanent Disability was given an infusion by SB 863. The trouble is that the infusion has been diluted. Our injured workers have been left worse off and now need a transfusion.

SB 863: A Political Tsunami in California

When Governor Brown declined to accept legislation that would have been a partial fix for workers' compensation at the end of 2011, he said he wanted an overall solution, not a piecemeal adjustment.

Among the politically savvy persons who heeded this admonition was Angie Wei, indefatigable chief lobbyist and legislative director for the California Labor Federation. Wei deftly developed her version of a comprehensive fix. What labor wanted most was an increase in permanent disability. Wei got that, or so it seemed, in the form of $740 million added to permanent disability. Speaking early on about SB 863, Wei said "there is no other path to getting $740 million back in benefits to injured workers. The legislature must pass SB 863." Wei, not exactly a friend of specialty medical  doctors, also protested against them when she complained that previous legislation caused medical treatment to be delayed because of "opposition from vendors who profit from the status quo."

SB 863 doesn't appear so far to be as good as its promise. Wei quickly understood that Governor Brown wanted a bipartisan bill, not one crafted only by the labor federation, and not one crafted entirely by insurance companies. Score one for Brown: he forced the two extremes to work together.

Grimmway Farms, Sean McNally, Vice President for corporate and Government Affairs,  soon became the chief player for business. No way Big Biz was going to let $740 million slip into Permanent Disability (PD) funding without getting something in return. Pouncing on some of the more abused parts of PD funding, Grimmway et al focussed on out-patient surgery centers, sleep impairments (dyssomnia), and sexual dysfunction (impaired sexual ability even when secondary to spinal injury). The open sesame to the assault on sex-and-sleep was the frequent inclusion of these complaints by applicants' attorneys into their legal pleadings. Deductions emerged:

*  Sleep impairment remains open for treatment but not for inclusion in permanent disability claims: this exclusion alone takes $40 million away from the PD pot.

*  Sexual impairment remains open for treatment but not for inclusion in permanent disability claims: this exclusion takes $10 million from the PD pot.

*  The big slam is the removal of $110 million for out-patient surgery centers.

*  All in all, current estimates are that of the $740 million Wei originally sought, about $200 million has already been lost thanks to the maneuvering of Grimmway which in this matter out-maneuvered Wei and Cal Fed.

* Two pro-injured workers bills bit the dust as SB 863 paddled furiously to victory: AB 369 (Huffman) and AB 1867 (Fong).  The fun-filled irony in the case of these two bills was that their authors voted in favor of SB 863 the passage of which was then used to tell authors Huffman and Fong that their bills were no longer needed.  Huffman's bill was designed to put a stop to step-therapy and was supported by Big Pharmacy, Pfizer, among others. Fong's bill would have required 12-point bold type on the first page of treatment authorization denial letters "so as to be prominently visible to the employee."
So step-therapy which prevents doctors from prescribing medications of choice is still the rule and so is keeping injured workers in the dark. The insurance companies wanted both bills defeated: they got their wish because Brown obliged and used SB 863 as the cudgel to do it. Score another for Brown, in fact, a double-score since he nailed both bills. The workers, ostensibly the constituents that Wei and Cal Fed wanted to serve, lost.

A big time score goes to Governor Brown because one day before passage of SB 863 when it looked as though the bill was going down to defeat Brown went to work in high gear and took up his own lobbying cudgel.  Effective lobbying from the California Society of Industrial Medicine and Surgery (CSIMS), directed by Carl Brakensiek and Steve Cattolica of AdvoCal, assisted by the California Society of Physical Medicine and Rehabilitation (CSPMR), the California Neurology Society (CNS), The California Chapter of the International Association of Rehabilitation Professionals, VQ OrthoCare, and the Californa Workers Compensation Services Association, almost defeated the bill despite abandonment of the California Medical Association (CMA) and the American Federation of State, County and Municipal Employees (AFSCME) both of whom voted for passage of SB 863. CMA and AFSCME knuckled under to Brown.

The CMA is credited with getting the Medicare RBRVS modified and once that was done agreed to support the bill.  Consultations in workers' comp will be allowed although they're no longer allowed in standard Medicare. AFSCME which represents a few thousand doctors in California wanted to befriend Brown more than it wanted to support its dues-paying doctors and assumed that its doctor members wouldn't  protest with too much vigor.   AFSCME's political judgment so far has turned out to be correct.

When Brown saw that SB 863 was in trouble, he went to work. He lobbied and asserted the bill would "reduce litigation, claims administration costs, and other frictional costs." He personally lobbied for the bill,  actually, furiously in the last two days. His hard work paid off. Score a personal hard-earned political triumph for Governor Brown and chalk up a loss for a medical community that knows how to provide services but not how to persuade anybody that what we do is as worthwhile as we say.

Our opposing position was, and still is, that the bill strips injured workers of their ability to appeal wrongful decisions while also cutting the $740 million for PD by at least $200 million. What Brown calls "frictional costs" are actually the lifeblood costs that injured workers incur in appeals. Appeals for wrongful decisions to the WCAB are eliminated by SB 863 which creates an Independent Medical Review (IMR) process that'll rely on anonymous doctors whose decisions are nearly appeal-proof.

In fact, what Brown was really after all along was Proposition 30 to allow increased taxes. To get it he needed to take down the heat from Big Business. Brown  worked to get SB 863 passed to reduce the level of interest against Proposition 30. The strategy worked. The trouble now is the fiscal cliff which, if the country falls off it, will result in widespread financial hardship and will nullify much of what Proposition 30 just won.

Our focus now is on the Independent Medical Review system that has been designed to replace the current Utilization Review system. The IMR system retains the worst aspects of UR, i.e., no need to be licensed to practice medicine in California and no need to interview or examine the patients from  whom treatment opportunities may be withdrawn. The IMR method gets an additional advantage, namely, the promise of anonymity so that appeals against even the stupidest of judgments resulting in harmful denial of care will be turned away and will not be eligible for appeal to the WCAB.

Statewide implications

The move is on to  restrict access to medical care and shift the blame to doctors, particularly the conveniently convened IMR doctors. The name of the game is cost-reduction while touting improved quality of care. In California, access to the WCAB is being restricted; however, similar wrongful uses of denial-of-care are used by HMOs and in Knox-Keene plans. This accelerating trend deserves to be derailed.

Federal implications

The current IPAB derived from the ACA (Obamacare) also promotes cost conservation at the risk of harming patients. These techniques are being adopted by the ACOs even faster than they were by the HMOs. This trend also begs to be derailed.

AB 1687 (FONG) IS VETOED BY GOV. BROWN

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. 

SB 863 is the medical-legal equivalent of last night's officiating blunder at the Seahawks-Packers fiasco

Once in a while we get to review medical-legal blunders with the same gusto  ordinarily reserved for football blunders like the Packers-Seahawks officiating error of Monday night, 9/24/12

We'll spare readers the details of the officiating blunder that led to the Seahawks 14-12 declared win last night.  We're confident that it'll be subject to review for years to come. We're also confident that SB 863 will be reviewed as the fiasco that it is, i.e., a method that conceals the names of  Independent Medical Review (IMR) doctors while at the same time rendering them practically immune from legal appeals from even the most egregiously wrong decisions, much akin to the NFL standing by the blunders of its replacement referees.

As matters stand now, the IMR doctors who'll replace the current Utilization Review system can only be challenged based on bias, fraud, or conflict of interest. That's the genius of the California Labor Federation, Grimmway, and Governor Brown, all of whom must have skimmed this part of the bill with about as much insight as the NFL replacement referees used last night.  They seem to have overlooked how difficult it is to accuse someone of bias, fraud, or conflict of interest without knowing the name of the alleged perpetrator.

If a spirited appeal is to be mounted against SB 863, it should start with repeal of the IMR section of SB 863 or with a restraining order against it.

Then we can test other sections of SB 863, for instance, to what extent were the new lien processes or the Medicare RBRVS improperly composed as intentional  encumbrances to the legitimate rights of injured workers.

NO MORE TIME FOR CREDITS AND KUDOS!

SB 863 provides for an Independent Medical Review system to replace the current Utilization Review (UR) system. Under the current system, wrong and harmful decisions can be appealed in court. Under the new system, the IMR doctors will have their names protected so that attorneys won't know the names of the doctors who will now enjoy even more power than their UR predecessors. The IMR doctors will only be able to be challenged based on allegations of bias, fraud, or conflict of interest. Trouble is that it's nearly impossible to assert bias, fraud, or conflict of interest without a name. It appears that the new law will enable IMR doctors to participate in bias, fraud, and conflict of interest. Was this legislative slight-of-hand an accident of sloppy bill-writing or something worse?

In France, prior to the Revolution in 1789, the nobility had the power to issue "lettres de cachet" which enabled accused persons to be tossed into The Bastille without a trial and without knowing the names of their accusers. We should not accept a system in California that relies on ghost-doctors whose names are kept secret from applicant and defense attorneys.

Keep in mind that UR  doctors are not required to be licensed in California. Neither will IMR doctors be required to be licensed in California. Non-California licensed doctors who render IMR decisions that control the treating  doctors will not be responsible to the Medical Board of California whereas the actual treating doctors will be. Is that equitable?

Although the UR and IMR doctors are responsible to their own state boards, those boards don't have jurisdiction in California. A similar issue arose in Texas and was cured when Texas passed legislation to require Texas medical licensure of doctors doing utilization review in Texas. As matters stand now, Texas doctors without California licenses can practice utilization review in California even though the Medical Board of California has stated that doing utilization review constitutes the practice of medicine. But if California doctors want to do utilization review in Texas they're obliged to be licensed in Texas.

If SB 863 looks like a stacked deck, that may be because it is. 

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

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?

MINISCULE AMENDMENTS TO UNBALANCED WORKERS REFORM DRAFT IRRITATE BIG BUSINESS AND ITS BIGGEST LABOR ALLY 

An amended version to reform California's workers comp system has managed to irritate the Big Business proponents of the bill and the California Labor Federation at the same time. Here's how:  the proposed amendments leave matters regarding utilization review, independent medical review, medical provider networks, and lowered fee schedules for specialists nearly unscathed. The proposed new amendments make small adjustments for age and would now allow workers to factor age into permanent disability awards. Treatment options would be slightly increased because psychological claims would be considered and independent medical review decisions might in a few instances be able to be overturned. These miniscule changes are enough to send Big Business into a dither and to expose the involvement of the California Labor Federation in the now scorned, but not necessarily rejected, original super-unfair draft.

In fact, WorkCompCentral reported on 8/24/12 that the California Coalition on Workers Comp and the State Compensation Insurance Fund still support the original super-unfair version of the bill. Mirabile dictu (miracle to say), the Department of Industrial Relations was also reported to have endorsed the original super-unfair draft. Doctors' groups are divided between a position and no-position, e.g., the California Society of Industrial Medicine and Surgery (CSIMS) issued a powerful protest ("Oppose the Last Minute Backroom Deal on Workers' Compensation").

Efforts to get clear position statements one way or the other from other stakeholders such as the California Medical Association (CMA), the Union of American Physicians and Dentists (UAPD), and the American Federation of State, County and Municipal Employees (AFSCME) have so far not been productive. WorkCompCentral stated in its 8/24/12 statement that "Labor unions have not publicly expressed a position on the bill, but Angie Wie, legislative director for the California Labor Federation, was a key negotiator." 

Meanwhile, LatinoComp, unafraid and stalwart, has issued its own statement in opposition to the current omnibus workers comp draft: LatinoComp points out that the current draft indicates how "all injury claims by state employees will be removed from the workers compensation system." Our question is why would labor unions that represent state workers allow this travesty to occur unopposed?

Mark Priven, a public member of the Workers' Compensation Insurance Rating Bureau's Governing Committee, called these early assertions "sparse data or anecdotal information." The current draft is co-authored by Kevin de Leon which augurs ill for injured workers who need specialized care (compare SB 923 from 2011) and for the specialists trained to provide it. The other co-author is Jose Solorio. The current bill is numbered SB 863 and does not correct a myriad of inequities from the original draft. This bill has earned the right to be withdrawn and submitted for a special session after the  regular legislative session ends.

It appears that the Insurance Journal agrees. The IJ headline for 8/27/12 is "Workers' Comp Reform Bill Increases Costs $300M."

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.