Duty of Care Revisited -- all is not well in Hawaii or California

Duty of Care (King v. CompPartners) was reviewed in this column on 10/16/18. The case involved the sudden discontinuation by a Utilization Review (UR) physician of patient Kirk King's klonopin. King filed suit based on negligence and malpractice because the UR doctor arbitrarily disconinued his medication and thereby caused him to have four epileptic seizures. Eventually the case went to the California Supreme Court which decided that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system."  The case was remanded to the District Court. King was barred from pursuing a tort claim. 

We wrote in this column that the decision protects UR physicians from malpractice lawsuits. But Justice Mariano-Florentino Cuellar wrote in his opinion that it might be time for the California legislature to take a look at the law since it could now be argued that protections in the law for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

It makes no sense that treating doctors are subject to Duty of Care, a protective legal concept that protects patients from cavalier care, whereas by contrast UR doctors, who do not interview or examine the patients, are not. 

It makes sense to change the law so that both UR and IMR (Independent Medical Review) doctors can be brought under the same Duty of Care umbrella as their PTP (primary treating physician) counterparts. Legislative action is now an issue in Hawaii and California. 

We got action, but maybe not with quite the slant originally sought.  In Hawaii debate now rages over whether or not Independent Medical Examiners (IMEs) should owe the same duty of care to injured workers as they do to their other patients. H 863 by Rep. Aaron Johanson and SB 1411 by Sen. Les Ihara in Hawaii would require that the IME be licensed in Hawaii, possess malpractice insurance, and "owe the same duty and standard of care to the injured employee as owed to a traditional patient." The bills would also make permanent an employee's right to record medical examinations.

In California, UR and IMR doctors are ripe for this type of legislation -- neither actually interviews the patient or even examines the patient -- but the California Supreme Ct has let 'em both off the hook. So the reviewers who know the patients less than the treating doctors get away with less review of their decisions because they're exempt from Duty of Care obligation. 

What is needed in both Hawaii and California is legislation that states that UR, IMR, as well as treating doctors, shall be subject to  obligatory Duty of Care.

We'll discuss whether or not an employee has a right to record a medical examination in another column. 

References

Workcompcentral News, "Lawmakers Bring Back Duty of Care Proposal for IMEs," 2019-01-28

The Weinmann Report, www.politicsofhealthcare.com, 2018-10-18  ("Duty of Care versus Utilization Review") 

Workcompcentral Column ("UR physicians do not owe injured workers Duty of Care"), 2018-09-18

The Weinmann Report, www.politicsofhealthcare.com, 2018-08-26
("Utilization Review physicians do not owe injured workers Duty of Care")

INVESTIGATING WORKERS COMP DENIALS OF CARE ON TELEVISION AND RADIO

The undersigned recently participated in two investigative stories, one on television, NBC Bay Area, the other on radio, KPFA, 94.1 Wednesday, 8/31/16.

The NBC Bay Area story was a three-part investigation of workers comp. The focus was bureaucratic delay and denial of care to injured workers in California. Here are the links: Dozens of Injured San Jose Firefighters Denied Workers' Comp Treatment; Workers' Comp Drags Out Medical Care, Injured Workers and their Doctors Say; and Injured Workers Face Stacked Deck During Workers' Comp Appeals Process, Critics Say.

The KPFA 94.1 story was broadcast on WorkWeek Radio. This program addressed "the growing crisis for injured workers" in California and revealed that Maximus, which does so-called "independent medical review," was paid $40 million in a "no bid contract to make determinations of whether workers were entitled to medical care." The story is a production of Work Week Radio, workweek@kpfa.org

The undersigned commented on SB 1160 (Mendoza) and on the continuing travesty that allows Utilization Review (UR) and Independent Medical Review (IMR) doctors to determine California-based cases even though these doctors may not be licensed in California and aren't subject to the state medical board. While SB 1160 may actually improve UR somewhat, its lien provisions harm access to care for injured workers. 

WHAT HAPPENS WHEN CLINICIANS DON'T TRUST REGULATORS?

USA Today published a piece on whether or not physicians should be forced to check a prescription database before writing opioid prescriptions. In Massachusetts Governor Charlie Baker proposed measures to obstruct physicians from prescribing these medications. Among the irresponsible provisions recommended for this purpose, one was to limit opioid prescriptions to 72 hours.  In all but the most emergent situations this rule would prevent patients from getting their prescriptions for more than three-days. 

Meanwhile, in California, Senator Lara submitted legislation, SB 482, that would require physicians to rely on a statewide data base known as CURES that does not yet exist before prescribing Schedule II or III medications. Failure to do so would make the physician subject to discipline by the state's medical board. This bill is currently on hold and awaits the 2016 legislative season that begins in January.  In the meantime, Gov. Brown signed off on AB 679 (Allen) which was chaptered on 11 October 2015 and extends the deadline for mandatory enrollment in the CURES system from 1/01/16 to 7/01/16. 

California also has Utilization Review (UR) obligations that primary treating physicians (PTPs) are obliged to accept. It works like this: physicians may prescribe diagnostic studies,  treatment programs, even medications, including non-opioid, or ask for consultations. Instead of complying with same, the patient is hung out to dry by the insurance company which says it is obliged to submit all such requests to UR before the prescription or treatment can be "authorized." Never mind that the doctors belong to MPNs or Medical Provider Networks and have already been approved by the insurance company. In many cases patients are kept in pain because the treatment they're seeking -- and that has been properly prescribed -- is being withheld by the insurance company.

There is an appeal process. If UR doesn't reverse its denial of care in timely fashion based upon an initial complaint by the treating doctor, the decision is passed over to an Independent Medical Review agency which may employ doctors who are out-of-state and whose names are concealed by the insurance companies from the patient and the actual treating doctor. Statistics show that the vast majority of cases denied by UR get denied again by IMR.

Under these circumstances, many physicians including the most prestigious simply refuse to accept industrial or workers comp cases -- injured workers who get injured on the job expect that they'll get authorized treatment from their industrial carriers. Strike one occurs when their access to treatment is delayed. Strike two occurs when UR denies care that had previously only been delayed. Strike three occurs when IMR goes along with UR and gangs up to deny care again. There's a 4th strike that occurs when the likes of Governor Baker, Governor Brown, and State Senator Lara help insurance companies and corporate interests shirk their obligations to provide timely medical and surgical care. 

Stanford Hospital and Clinics knows what to do. In a letter to a California physician, July 24, 2014, Stanford refused to provide neurosurgery consultation to an injured worker. The letter from Stanford gave the following reason: "We don't take WC cases."

How so-called "guidelines" become hard-and-fast "regulations"

Our previous post showed how Utilization Review decisions sometimes turn out to be regarded and applied as actual practice mandates and how 80% of such decisions are actually denials of care that get upheld by Independent Medical Review. 

The quizzical situation is that many of the UR doctors are not licensed in California. Neither are many of the IMR doctors. More to the point is that the UR doctors and their IMR colleagues often reject diagnostic studies and treatment that has been recommended by MPN (medical provider network) doctors that have been selected by the same companies that approved the UR panels that then denied treatment. Practicing doctors and their patients who know that an injury is real have long since figured out that cost-control, not patient care, is the name of the game. Even the AMA has gotten into the game, purveying and selling to any and all willing buyers a book called Guidelines to Impairment. This book has proved to be a goldmine for insurance companies and their employers who don't want to pay for whatever they can get away with denying as a "covered" item.

Meanwhile, seeing the business success of the AMA Guidelines, other organizations have jumped onto the regulatory bandwagon, e.g, the ABMS boards who now sell "recertification" and "maintenance of certification" programs to their own members. In fact, the eagerness with which physicians' own organizations have sought to subjugate its own members has actually provoked enough ire among physicians that 14 states have already passed legislation modifying the greed-encrusted thrust of the ABMS boards to sequester themselves as well paid bosses (about $800,000 for the ABMS chief, see previous post).

Likewise professional organizations such as the American Academy of Neurology (AAN) which recently published a "position paper" on chronic pain and opioid medication -- without submitting a draft to the California Neurology Society (CNS). THAT caught the attention of  then CNS president Robyn Young, MD, who also reviewed a similar advisory from the Medical Board of California (MBC) which seemed more in line with CNS practices than the AAN paper which was widely regarded as one-sided and biased.

That situation in turn led to CNS' asking its own Director of Government Relations to testify at the MBC hearing in October of 2014. The MBC considered several subjects one of which was a unified and reasonable approach to the treatment and management of chronic pain. Accordingly, the CNS Director of Government Relations, Steve Cattolica, stated "these guidelines are not the only treatment of this issue prescribing controlled substances for non-cancer pain." It was acknowledged that such guidelines, however,"should represent the standard of care for physicians in California ... that fact begs the question how these guidelines will be used or IF they will be used as the Board has intended."

Cattolica then pointed out that "our constituents with heavy emphasis in treating injured workers face a difficult situation" because "any inconsistency will cause all physicians to perhaps compromise the standard of care." Using the Division of Workers Comp (DWC) as an example Cattolica stated how "the DWC's treatment guidelines have a long and proven track record of being misapplied ... to control costs and identify physicians they no longer want in their medical provider networks."

The MBC chair, Ms. Yaroslavsky, was quoted as having said that guidelines are just that, guidelines, not regulations. Cattolica then stated why vigilance is essential: "the physician community's experience with the application of treatment guidelines in the workers' compensation system is as rigid criteria." In other words, it needs to be emphasized that AAN Policy Paper on the use of opioids in non-cancer pain is a guideline, not a regulation, and that the same goes for the guidelines proposed by the MBC. It can be anticipated that the MBC and the AAN recommendations will compete for attention from treating physicians. Either way the mere presence of written guidelines opens the way for automatic rejections of treatment by utilization reviewers in all walks of medical practice including government plans such as Medicare and Medicaid, or managed care plans such as HMOs and PPOs, or workers compensation where remote control medicine is already rife among UR doctors and their legally anonymous IMR counterparts.

Cattolica advised a change in wording-- drop the phrase "very consistent" from the recommended statement of Guidelines and replace it with the word, "equivalent." 

Utilizaton Review (UR) and Independent Medical Review (IMR)

Of these two programs the more perfidious one is Independent Medical Review (IMR) into which the legislature carelessly linked secrecy and finality of decision making. 

The IMR decision is supposedly a final medical decision no matter how incorrect and  harmful that decision may be. It cannot be appealed to WCAB since that otherwise constitutional pathway has been precluded by SB 863. The idea in this situation is that doctors, not lawyers or judges, should make medical decisions. The concept sounds good in theory. Nonetheless, the legislature felt it necessary to protect the IMR doctors from outside scrutiny by keeping IMR doctors' names secret just as in France in the days of the Bastille when secret letters enabled throwing French citizens, including nobility, into prison without trial.

IMR is justly under fire at this time. On 12/03/14 the California Court of Appeal First Appellate District, Division One, granted the petition for writ of review filed by Attorney Joseph Waxman in the case of Frances Stevens, Petitioner, v. WCAB and Outspoken Enterprises/State Compensation Insurance Fund (ADJ 1526353). In a workcompcentral report from 12/18/14 we're told that Stevens had been found 100% disabled. Stevens needed a high level of assistance even for ordinary activities of daily living including personal hygiene. State Comp (SCIF) submitted the request to Utilization Review (UR) which denied the requested home health aide and four medications. An IMR review request was submitted. After a lengthy delay, seven months, actually, Maximus upheld the UR denial. That is when an appeal was filed with the Workers Compensation Appeals Board (WCAB). Part of the legal appeal revolves about jurisdiction, i.e., the constitutionality of Labor Codes 4610.5 and 4610.6. This writer understands IMR is governed in part by LC 4610.6 (h) which says WCAB can only set Maximus IMR decisions aside on what workcompcentral's piece called "very limited grounds" such as fraud, material conflict of interest, racial bias, and other matters such as ethnic or sexual orientation.

Under these circumstances, that a UR decision might have been flat-out wrong, stupid, and harmful, and that IMR approval might also have been wrong, stupid, and harmful, simply doesn't matter under the law. Welcome to "1984" in medical-legal jurisprudence.

Organizations with a stake or interest in the outcome should file amicus briefs as soon as possible, especially medical organizations that purport to have patients' interests at heart.

References (some items listed more than once under separate headings when more than one site used the editorial and if one of the sites is not readily accessible) 

From Workcompcentral:

1) "Malpractice by Utilization Review," 12/19/14;

2) "Utilization Review: Hypocrisy in Velvet Gloves," 3/16/14;

3) "Stevens Writ Granted," 12/18/14;

4) "Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," 12/19/14;

5) "Maximus Upheld Denial of Treatment Four-Fifths of the Time," 12/10/14.

From California Applicants Attorneys' Association:

1) Under Eclips Daily News, 12/19/14, "Malpractice by Utilization Review."

From Politicsofhealthcare.com:

1)  "Is SB 863 an Example of Legislative Malpractice?, " 12/22,14;

2)  "Malpractice by Utilization Review, " 12/13/14;

3)  "Is Utilization Review in the Cards for 2015?, " 12/01/14;

4)  "How Utilization Review and Independent Medical Review ... Deprive Injured Workers," 8/11/14;

5) "Utilization Review: Hypocrisy in Velvet Gloves," 3/18/14.

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.

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. 

HOW UTILIZATION REVIEW AND INDEPENDENT MEDICAL REVIEW WORK TOGETHER TO DEPRIVE INJURED WORKERS OF CARE

The Medical Board of California is not at this time placing high priority on reform of either Utilization Review (UR) or Independent Medical Review (IMR).  

UR is required before Primary Treating Physicians (PTPs) or consultants can initiate diagnostic studies and/or institute treatment. UR physicians can deny or modify diagnostic or treatment requests by treating doctors. For instance, in one case we're studying, an orthopedic surgeon asked for authorization to do a preliminary treatment and if that treatment failed to go ahead with a fusion. The UR consultant authorized the preliminary treatment, not the fusion. Trouble is the authorized preliminary treatment failed. Since the request to do a fusion should the preliminary fail was denied, this injured worker will now go without the recommended follow-up fusion advised by the expert opinion of the evaluating orthopedic surgeon. The inherent absurdity in the program is that the UR doctor did not interview or examine the patient and reviewed only whatever records were given him by the insurance company. 

A current case that has come under our review concerns a patient who has lifetime medical care and who from time to time when symptoms recur gets physical therapy -- not this time, though! The request for physical therapy, reviewed by Doctor Unctious (his real name is kept secret by the Independent Medical Review Service run by Maximus) denied the request for physical therapy. The treating doctor won't be able to quiz Doctor Unctious because his real name is "protected" by Maximus. This kind of secret denial harkens back to the French Revolution when secret "lettres de cachet" filed by nobles enabled imprisonment of named victims without having to disclose who wrote the "lettre de cachet" in the first place. Perhaps it's better that Untious' real name isn't known. So far our review suggests that Dr. Unctious' professional conduct deserves disciplinary review by the Medical Board.

Aye, but there's the rub! Unctious does not have a California license and under California law does not need to be licensed in this state to practice UR in California. He is free to deny or modify care without a California  license to practice medicine. The official letter denying care trumpets that Unctious is licensed in Ohio and Texas, but those boards can't review Unctious' clinical conduct because those boards don't have jurisdiction in California. 

The California legislature has passed three bills requiring UR doctors to be licensed in California. All were vigorously  protested by the insurance industry. All three bills were vetoed, twice by Schwarzenegger (no surprise) and once by Brown (big surprise). The meaning of this quirk is that non-California licensed doctors do not come under the jurisdiction of the MBC whereas the  PTPs who  are left holding the bag when treatment isn't authorized remain subject to discipline by the MBC.

Texas requires doctors who do UR on Texas patients to be licensed in Texas.  The upshot is that Texas doctors may do UR in California without being licensed in this state whereas California doctors who want to do UR in Texas must first get a Texas license.

So here's how the "double whammy' works: first, UR denies treatment. Then, instead of judicial review by the WCAB, the case gets turned over to Maximus with its cadre of anonymous doctors who have in common with their UR counterparts that they also don't have to be licensed in California.

Epilogue: In the case at hand the patient is getting the P.T. he needs. He's just paying for it himself.  We regret that the Medial Board of California doesn't see enough inequity in this desultory situation to demand that UR and IMR doctors be licensed in California.

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.

WHEN UTILIZATION REVIEW DECISIONS ARE INVALID: Jose Dubon v World Restoration & SCIF "en banc" decsion

UTILIZATION REVIEW (UR) DECISIONS ARE NOW INVALID IF IT IS SHOWN THAT THE UR DECISION WAS "UNTIMELY" or suffers from material (underlining added) procedural defects "that undermine the integrity of the UR decision." This WCAB decision is "en banc" and also states that "minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination." 


This statement is derived from page two of the Workers Compensation Appeals Board (WCAB) "en banc" decision  for the State of California in Jose Dubon vs World Restoration and State Compensation Insurance Fund (SCIF) filed at San Francisco on 2/27/14.


This "en banc" decision also states that the "issue of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB."


Of keen interest is the following additional conclusion by the WCAB: "If a defendant's UR is  found invalid, the issue of medical necessity is not subject to IMR (underlining added) but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required."


Finally, WCAB also states that when UR is provided in a timely and valid manner  the issue of medical necessity shall be resolved through  the IMR process if requested by the employee (editor's note: it is the employee who must make the actual request).


Conclusion:


This decision has major importance for injured workers and their PTPs (primary treating physicians). For injured workers unfairly treated by  the system, this decision is a decided victory; however, there are caveats, e.g., it will not always be easy to decide when wrongful steps reflect  "minor technical or immaterial defects" or "material procedural defects."


Editor's comment: The Achilles' heel in the process is UR where many of the participants are not licensed in California and are not subject to the jurisdiction of this state's medical board or even to the jurisdiction of their own state medical board since the latter board does not have jurisdiction in California. These UR decisions may often be careless in part because they're not subject to public policy review by any state medical board.


Reference


Jose Dubon vs World Restoration and State Compensation Insurance Fund, Case Nos. ADJ 4274323 (ANA 0387677) and ADJ 1601669 (ANA 0388466).

GOVERNOR BROWN SIGNS INTERPRETER BILL (AB 1376)

AB 1376 got the support from Governor Brown it deserved when he signed it into law on the last day available to him -- we did not feel the bill needed to have been the cliffhanger that it turned out to be but, in the words of the bard, "all's well that ends well." Kudos go to many supporters who worked on the bill and to the sponsors of this legislation, particularly Jesse Ceniceros, Board Chair, Voters Injured at Work (VIAW). VIAW was the chief sponsor of this legislation that will enable injured workers to have access to interpreters during medical visits. The bill was one of equity, allowing the deadline for certification of interpreters to be extended to 1 March 2014. Why a bill that passed the last legislative step without opposition in the legislature and clearly had bipartisan support had to wait until the last day of the session for the Governor to sign it intrigues political pundits -- was it just political theater or was there serious backroom efforts to get a veto? It intrigues us. We'll be getting back to SB 863 soon, too -- that's the bill that enables Independent Medical Review to be done by doctors who aren't licensed in California, just like Utilization Review doctors. That's the bill that promised injured workers more than it delivered and embarrassed the California Labor Federation. That's the bill that Senator Beall sought to revise this year via SB 626 which got pulled midway through the session. We'll be poised to pounce if SB 626 comes back in January for the 2014 legislative session. Our editorial from this past summer remains available (see references below).

References

SB 626 (Beall) Tackles SB 863 (Deleon), www.politicsofhealthcare.com, 4/15/13

SB 626 (Beall) Restores Equity and Balance, ibid,  2/24/13

SB 626 Alert, ibid, 2/23/13

AB 889 (FRAZIER) UP TO BAT while SB 626 (Beall) strikes out

SB 626 (Beall) would have put one helluva crimp in SB 863 (DeLeon). Now that SB 626 has been pulled, perhaps, to be continued next year as a two-year bill, the business community can focus its laser like interests elsewhere, e.g., onto AB 889 (Frazier). 

AB 889 (Frazier) would impose specified requirements on health care service plans or health insurers. AB 889 would require insurers to have "an expeditious process in place to authorize exceptions to step therapy." Step therapy is the process whereby patients are required by their insurance companies to try specified generic medications before being allowed to try newer, better, and probably more expensive medications. Cost control comes before patient care according to this protocol.

Similar legislation, AB 369 (Huffman) was vetoed last year by Governor Brown. Here's what the Governor said about AB 369 in his veto message: "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."

Governor Brown stated that "independent medical reviews are available to resolve differences in clinical judgment when they occur, even on an expedited basis."

We now know that the independent medical review law derived from SB 863 allows the identities of independent medical reviewers to be kept secret and that the law specifies that neither the Workers Compensation Appeals Board (WCAB) nor the courts can alter an independent medical reviewer's decision just because it's wrong, no matter how incredibly wrong it may be. Brown put his foot (well, both feet) further into it when he also said "any limitations on the practice of 'step-therapy' should better reflect a health plan or insurer's legitimate role in determining the allowable steps." Translation: a health-plan's profit center has a "legitimate role" in overruling doctors' medical decisions

Governor Brown should be interviewed about these comments repeatedly.

We recommend support for AB 889 (Frazier). We recommend early lobbying of the Governor since last year he sided with insurance company interests and vetoed a similar bill.  

Update: We are advised that AB 889 (Frazier) is scheduled to be heard by the Assembly Health Committee on April 30th, 1:30 PM, Room 4202. Interested parties, especially those who would like to attend or testify, need to stay alert to possible changes in time and/or date.

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