OPIOID PRESCRIBING FOR PAIN IS INHIBITED FOR INJURED WORKERS

   The mechanism of opioid action is through a receptor mechanism that we all have, namely, mu, delta, and kappa receptors. Human opioid receptors are endogenous (meaning that their mechanism comes from within the system and does not require an external source) and can be activated by endogenous peptides such as the enkephalins, dynorphins and endorphins. These substances are released by neurones and are made available for pain modification. Endogenous opioid peptides comprise a class called endorphins.  

  This class of neurochemical stimulation is available to injured persons and can be mobilized into action without prescribing the likes of vicodin, oxycodone, oxycontin, or similar controlled substances (or illegal non-controlled substances). This level of neurochemical stimulation can be triggered to release endogenous substances in the human body that relieve pain.  For instance, physical therapy, aquatic therapy, or massage can have this favorable effect. When this method doesn't work, analgesic medication including opioids may then  be prescribed.

  The trouble is that in the case of injured workers covered by workers comp, these alternative methods to opioid prescribing are often rejected by Utilization Review (UR). Then that rejection by UR gets rubber-stamped by anonymous Independent Medical Review (IMR) doctors whose prejudices cannot be addressed since their names are kept secret. When the PTP or Primary Treating Physician's attempt to prescribe an alternative to analgesic relief is denied authorization, the next step is pharmacological, usually NSAIDs (non-steroidal anti-inflammatories), then opioids if the NSAIDs fail. That's when the bureaucratic howling begins. What should happen instead is that the UR and IMR doctors who denied treatment by physical therapy or massage should be relieved from duty. 

"Turn the Tide," a publication of The Office of the Surgeon General, discloses resources for the proper prescribing of opioids for pain, chronic pain in particular. For instance, once opioids are prescribed, they should only be continued if "meaningful improvements in pain and function without significant risks or harm" can be documented. Interestingly, the brochure distributed by The Office of the Surgeon General, states in red capital letters, "Start Low and Go Slow."

In fact, in The Weinmann Report, 6/26/17, "Opioid Denials and Obstruction of Alternative Treatments," we discussed how The Washington Post in 2001 made a front-page headline about a doctor in California who was being sued for not prescribing enough pain medication. Two years earlier the Oregon Medical Board actually disciplined a physician for not prescribing enough medication to relieve pain. We also cited a peer-reviewed reference from HEADACHE that stated that opioids were useful in pain management but that that its use had to be slow, slow, slow -- this advice was 17 years ahead of "Turn the Tide" and 10 years before Paduda's original article. 

In a panic-ridden piece entitled "Narcotic use is rampant in workers compensation," we are told that "the problem is showing up in a doubling of emergency room admissions due to prescription drug abuse, driven primarily by oxycodone, methadone, and hydrocodone." This particular article makes no reference to the Utilization Review denials for physical therapy, massage, and alternative treatments that force patients into the pharmaceutical stream.

On the contrary, Dr. John Torres recommended massage therapy on MSNBC with moderator Craig Melvin on August 1st, 2017. It isn't clear whether or not Dr. Torres knew he was recommending a treatment often rejected by workers comp Utilization Review. Since we  had the privilege of evaluating just this kind of patient recently, we'll see what happens if and when the PTP asks for overturn of the denial of massage therapy.

Readers should not be surprised. Since the emphasis now placed on evidence-based-medicine, the reliance on the winds of fashion and bureaucracy has increased. Discipline for not providing enough pain medication has been supplanted by a new chorus chanting for discipline for doctors who provide too much.  

References

The Weinmann Report, 6/26/17, "Opioid denials and obstruction of alternative treatments"

"Controversies in headache medicine," summer, 2000, HEADACHE, V. 11, # 2, Lawrence Robbins, MD (opioids can be used:  "when they are not overused, the opioids are a safe medication")

"Doctor's  duty to ease pain at issue in Calif. lawsuit," Susan Okie, Washington Post, 05/07/2001

"Oregon Board disciplines doctor for not treating patient's pain,"  New York Times, 09/04/99

"Narcotic use is rampant in workers compensation," Joseph Paduda, October, 2010

"Prescribing Opioids for Chronic Pain," TURN THE TIDE, Office of the Surgeon General, CDC

Commentary by Dr. John Torres, 1 August 2017, MSNBC TV (recommends massage for pain relief) 

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).

Injured Workers Lose Again

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

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

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

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

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

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

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

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

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

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

 

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.

AB 369 (HUFFMAN) RE "STEP THERAPY" VETOED

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

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

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

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

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

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

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

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

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

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

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?

INDUSTRY JOURNAL PREDICTS $300 MILLION INCREASE IN WORKERS' COMP COSTS

$300 million -- that's what the Insurance Journal says will be the increased costs if SB 863 passes into law. That was the IJ headline on 8/27/12.

But in an article that was originally published in Labor's Edge and that got reprinted on 8/28/12 in California Progress Report,  Author Angie Wei, Legislative Director of the California Labor Federation, concluded that "there is no other path to getting $740 million back in benefits to injured workers. The Legislature must pass SB 863." But Angie isn't the only person who has fought for increased benefits to injured workers. Stan, who replied to her CPR piece, disagreed vehemently. I also disagree. Here's why:

1) The proposed legislation cuts costs by $1.4 billion, but only about 50% of that goes into Permanent Disability (PD). Who gets the rest?

2) The proposed legislation actually cuts several benefits that injured workers currently receive. For instance, we all know that Utilization Review (UR) as it's currently conducted is unfair to injured workers; however, UR decisions can be challenged under the current system. Under SB 863 the current UR system will be replaced by an Independent Medical Review (IMR) system which will be even more protected from challenges by injured workers who feel they were wrongly treated. This change will save $90 million in costs, costs that previously benefitted injured workers.

3) Outpatient surgery centers will have their reimbursement rate reduced to 80% of the hospital rate even when their services are superior. That'll save another $110 million. How does that benefit injured workers? The point is that the change to an IMR system when combined with the reduced reimbursement to outpatient surgery centers will cut costs by $200 million taken right out of the hearts and souls -- and bones -- of injured workers.

4) SB 863 will replace the antiquated but already low paying Official Medical Fee Schedule with an even lower paying Medicare RBRVS schedule which will apply mostly to specialists. Reducing access to specialty care does not help injured workers regain their ability to compete in the open market place.

5) SB 863 will eliminate sleep impairments (dyssomnia) caused by injuries that have caused chronic pain. The claim is that this change will save $40 million in benefits that won't be paid to injured workers.

6) SB 863 will eliminate sexual dysfunction even when caused by spinal injuries, a change that reportedly might save another $10 million. The savings for this category is lower because many injured workers are too embarrassed to assert this claim. These changes alone amount to $250 million in savings that'll be ripped from the guts of injured workers.  There are also other reductions.

7) LatinoComp stated the following in its own statement on SB 863: "All Injury Claims by State Employees Will Be Removed From The Workers Compensation System." This change amounts to a slap in the face with a simultaneous kick in the butt to injured workers.  The California Labor Federation and affiliated unions such as the American Federation of State, County and Municipal Employees (AFSCME) should be in staunch opposition to this plank.

So what's behind this  bill that Angie Wei reports "is not perfect?" We agree only that "the Schwarzenegger 'reform' has failed both employers and workers." Her piece says that one of the faults of SB 899 is that "medical treatment is delayed." That's true. But SB 863 makes sure that medical treatment will be delayed even more and more often denied than currently. Angie Wei's real beef appears to be "opposition from vendors (italics added) who profit from the status quo."  Vendors? Does that remark include the lawyers who represent injured workers and the doctors who care for them? If it does, we need to renegotiate. Come to think of it, comprehensive negotiations  including small employers and other stakeholders have been absent from the negotiating table from the beginning.  The answer is a special session after this legislative year. The special session should include all stakeholders, not just a selected few.

WORKERS COMP AMBUSH IN PROGRESS

WORKERS COMP AMBUSH sprung, well, almost!

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

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

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

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

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

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

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

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

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

References for further study

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

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

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

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

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

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

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

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

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

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

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

AB 1687 (FONG) DESERVES PASSAGE INTO LAW

SB 923 (DELEON) DESERVES DEFEAT   

UTILIZATION REVIEW particularly by companies owned, controlled, or supported by insurance companies has been recognized for escalations of cost associated with wrongful denials of treatment. Here's how it works:
1) Josephine Sheetrock gets injured on the job and receives authorized initial treatment from a Primary Treating Physician (PTP) who in turn belongs to a Medical Provider Network (MPN) with which her employer and insurance company have a contract to provide care for injured workers (IWs);
2) Josephine Sheetrock's treatment does not resolve the clinical problem so the PTP seeks authorization for specialty consultation;
3) The PTP's request for authorization for specialty consultation and/or diagnostic tests is denied;
4) An authorization denial letter couched in the language of formal Utilization Review is sent to the PTP (it tells the doc to peddle his papers elsewhere);
5) The formal language is derived from the American Medical Association's Guides to the Evaluation of Permanent Impairment, from the American College of Occupational and  Environmental Medicine (ACOEM), and from the current Medical Treatment Utilization Schedule (MTUS), all usually correctly quoted while being wrongly applied;
6) The PTP can file an appeal. It the PTP files appeals too often or too successfully, the PTP risks being dropped from the MPN;
7) The consequence is that formal appeals are often perfunctory, not made at all, and are often unsuccessful (Josephine Sheetrock goes without treatment and is obliged to "go legal," i.e., to retain an attorney who specializes in workers compensation).

*** HMOs, other managed care organizations, and Knox-Keene Plans use similar mechanisms to delay or deny care. Money that should be allocated to patient care is retained by insurance companies, cooperative Utilization Review companies, and for enhanced executive compensation. 

*** AB 1687 (Fong) which applies to workers comp should be passed into law. It will help level the playing field by requiring full disclosure for denied care and by increasing access by injured workers  to lawyers who specialize in workers compensation;

*** SB 923 (Deleon) which also applies to workers comp should be defeated because it will deprive PTPs and their patients from access to specialty care. 

References

See our postings for 1 June 2012, 21 May 2012, and previous postings re workers compensation in http://www.politicsofhealthcare.com

Totalcapitol.com

California Progress Report

San Francisco Chronicle, 8/29/08 ("How to practice medicine without a license")

These articles include reviews of previous attempts to require California state licensure for UR doctors and are available on line, e.g., concerning AB 2968 (Lieber),  AB 933 (Fong), and AB 584 (Fong).

EVIDENCE BASED MEDICINE (EBM) is the new mantra in health care. In its own way, AB 1687 (Fong) is a call for application of  EBM which is supposed to be the basis for Utilization Review (UR) in workers' compensation in California, for management-based authorizations in the nation's HMOs and PPOs, in Medicare, in Medicaid, and for managed care decisions everywhere and anywhere. All the same, proponents of EBM are aware of  high levels of sophisticated hypocrisy that engulf the EBM concept and that may ultimately contribute to its demise.

In California the most recent example revolves about AB 1687 (Fong) which would authorize attorney fees when injured workers who have been awarded future medical care successfully appeal UR decisions that deny prescribed care. AB 1687 has recently been studied in Assembly Appropriations.

Julie Salley-Gray, consultant to the committee, said, according to workcompcentral (WCC, see references below), that the bill will have minimal fiscal impact because challenges to UR denials are relatively infrequent. She is on record as having said that only 6% to 20% of UR requests are denied -- we are advised that her figures come from the California Professional Firefighters  (CPF) who are the sponsors of AB 1687 and who, in turn, got the information from the Division of Workers Compensation (DWC).

Workcompcentral stated in its release of 5/21/12 that the lobbyist for CPF did not return calls asking who in DWC provided this information. Previously, when Politicsofhealthcare.com sought information from this source, we also found that CPF did not return calls or e-mail.  However, workcompcentral also said that Carroll Wills, Communication Director for CPF, attributed the information to Rosa Moran, Administrative Director for DWC. The quote from Moran, however, was not exactly one that imbued readers with confidence, e.g., "I can't speak to when the data was generated, we got the figure from the AD (administative director) this spring and understand it to be current."

This level of response appears casual and not consistent with the high levels of data that insurance companies and their utilization review cohorts exert on doctors to support the medications they prescribe, the diagnostic tests they ask for, and the treatments and surgeries they recommend.

Workcompcentral also queried DWC spokesman Peter Melton whose reply by e-mail to WCC said that DWC does not keep track of UR statistics. Now we appear to gone from debatable EBM statistics to none at all. How is that possible? Reference is then made to a CHSWC lien report that said that treatment authorizations were "in dispute in 70% of liens surveyed." We are also told that the reasons for treatment denials were unknown in 20% of cases. We are then informed that Erika Monterozza, spokeswoman for the Department of Industrial Relations (DIR), stated that she couldn't confirm or deny whether DWC provided the information or not. We do not know if anybody asked whether or not any of the data reported turned out to be incorrect or distorted.

Mark Rakich, consultant to the Assembly Insurance Committee, was reported to have stated that the fiscal effects of the bill would include "potentially minor increases of workers' compensation insurance due to the added costs  associated with the relatively few challenges to the relatively few denials."  The trouble is we no longer can tell whether or not the number of challenges is "relatively few" or not.

What we do know is that Gov. Schwarzenegger squandered some of his panache with the new PDRS in 2005 which slashed PD benefits. Treating doctors also know that injured workers are often left stranded and that their PTPs (primary treating physicians) are left holding the malpractice bag when recommened and prescribed procedures and treatments are denied by UR companies which claim to rely on ACOEM or MTUS protocols which in turn claim to be based on EBM.

At this point Mark Gerlach, consultant to the California Applicants' Attorneys Association, hit the nail on the head when he stated that it is important to know the sources for the data in support of the 6% to 20% denial rate that was included in the Appropriations Committee Bill analysis.

Conclusion

Stakeholders, patients most of all, need to know in clear and concise language how EBM is used to authorize, delay, or deny treatment. Stakeholders also need to know if and how DIR and DWC use this information and to what extent its use has become an industry tool that insurance companies and their compliant utilization review companies wield to reduce healthcare expenditures at the expense of injured workers.

In response to queries about how EBM and AB 1687 intertwine, here's our answer: AB 1687 is a step in the right direction because its implementation will enhance impartial application of EBM.

CONSUMER ATTORNEYS WIN ONE WHILE APPLICANTS' ATTORNEYS, DOCTORS, AND PATIENTS LOSE, AGAIN!

In our post of 4/21/2012 we indicated favorable consideration for two bills that would alter Utilization Review practices. We indicated why we felt that AB 1848 (Atkins) was the stronger of the two bills. We're now informed that the Atkins' bill has been withdrawn. AB 1687 (Fong) now stands alone.

Our take:

In a letter from the Consumer Attorneys of California (CAC), 19 April 2012, the following is stated: "AB 1848 (Atkins) creates unnecessary, but very harmful, hurdles for medical experts seeking to testify on behalf of injured Plaintiffs."

In a not surprising nod to the CAC,  it is understood that Committee Chair Hayashi is not likely to recommend passage of AB 1848. In a nutshell, that means her committee doesn't have the votes to pass it. The bill dies, more likely than not, for the rest of the year (a rules change may be required to revive it).

The Achilles' Heel in the Atkins bill is probably not having limited it to Utilization Review in Workers Comp. Its far reaching effects extend beyond the legislative interests of the California Applicants' Attorneys Association (CAAA) which deals with injured workers and beyond the interests of the California Society of Industrial Medicine and Surgery (CSIMS) which was the chief sponsor of AB 584 (Fong) which Governor Brown vetoed last year.

What is still needed is a requirement that doctors who do Utilization Review (UR) for injured workers in California and who have the power to delay or deny care or even to modify care be obliged to meet the same requirements as the treating doctors who are required in California to be licensed and who are obliged to take a 12 hour pain management course (not required if one doesn't have a California license to begin with). An appropriate amendment could still be added to AB 1687 (Fong) as long as it's clear that the application is for UR for industrial medicine (injured workers) and does not apply to personal injury litigation.

Stay tuned. More to come, for sure!