WHEN PATIENTS GET TOO EXPENSIVE TO TREAT

What do insurance companies do when medical expenses get too high for comfort?  How may insurance companies deal with expanding medical costs that lower shareholder return and that may cause reduced executive compensation?

Currently, rituxin is one of the newer agents recommended for the active phase of acute demyelinating disease, multiple sclerosis in particular, but also extending to a complicated condition known as "lupoid sclerosis." Robyn G. Young, MD, Alameda, formely, president of the California Neurology Society,  states that this treatment is a preferred regimen for active system disease. e.g., MS/demyelination accompanying systemic SLE.

However, reluctance on the part of payers to cover this regimen has been noticed by frustrated clinicians whose treatment decisions may be delayed or denied by insurers who may assert that a specific treatment regimen is "experimental" and therefore not eligible for coverage under the plan. If that happens, the patient is then denied insurance coverage and may have to pay for treatment out-of-pocket while the insurance company continues to bill for its alleged coverage, whatever of that remains once what the patient currently needs is denied. 

Insurance companies have other ways of controlling costs. One of these other ways is to limit access to physicians to cover the number of enrolled subscribers. That increases the length of time it'll take to see a physician, especially a specialist, which in turn reduces expenses for the insurance company, which in turn allows more favorable financial quarterly reports to be issued. Another technique is to drop physicians from the MPN (medical provider network) based purely on business reasons -- no allegation of poor medical practice need be made. This latter technique reduces short-term expenses, allows for more favorable financial reports on a quarterly basis, and runs little risk of collectively increased long-term expense because of delays of care. Keep in mind that in workers comp, for instance, Temporary Disability (TD) runs out in two years. 

Doctor Young stated that "our patients should not be the victims of either insurance or pharma greed ... the physician has been devalued while all the other entities with financial interests in rationing patient care have been elevated in control and influence."

That is why some medical organizations seem poised to fight simultaneously for their patients' rights as well as for the rights of member physicians lest the latter become indentured servants dependent either on the corporate mentality that rules Big Biz or the other corporate mentality that rules government. In this regard watch for a likely take-down on an aspect of Obamacare (Affordable Care Act). The case is King versus Burwell, Docket # 14-114, set for SCOTUS argument beginning on 4 March 2015. The case deals with an IRS ruling re availability of federal tax subsidies to persons who bought health insurance on exchanges run by the federal government -- we'll cover more on that in future columns.

In the meantime, Doctor Young's conclusion  that "it is time that we (physicians) took back our role as patient care advocates" should be shouted from physician rooftops everywhere.

References

"Regaining Control of Medical Practice," CLINICAL EEG,  c. 1995, V. 26, #1 (reprints available SSAE upon request to Dr. Weinmann, 2040 Forest Avenue, #4, San Jose, CA. 95128)

"Union head urges reform in health care," THE OAKLAND TRIBUNE,  4 November 1998 (White House press conference with then President Bill Clinton)

PROPOSITION 45 MAY RIDE AGAIN (Regulating Insurance Companies That Sell Healthcare Policies)

Like a reliable bucking bronco used to rodeo participation, Proposition 45 may be down, not out, and capable of rising again if supportive organizations adopt it, revise it, and promote it. 

Among the physicians who were supportive of Prop. 45  we can probably still count on Paul Song and Robyn Young to maintain interest and put up a fight. Doctor Song is reported to have an eye on running for insurance commissioner once Dave Jones has finished his tenure. Young is president of the California Neurology Society and maintains hands-on interest in  medical- political issues in Sacramento and Washington, DC.

What killed Proposition 45 in the November, 2014 voting in California was the widespread perception that regulation of the insurance companies was largely smoke and mirrors. The idea was to allow the insurance commissioner as much authority over the sellers of healthcare insurance as is now allowed with reference to automobile liability insurance.

That meant that the insurance commissioner would be enabled to role back an insurance company's increase in premium it it were judged by the insurance commissioner to be arbitrary, not substantiated by demonstrable need. The insurance commissioner would be judge and jury. 

Careful readers of the proposition quickly realized that what was deemed "arbitrary" might itself be arbitrary and that insurance commissioners might yield to political persuasion. The insurance companies countered with an ad that said doctors, not politicians, should decide medical matters. The obvious riposte was that insurance companies currently readily find ways to deny authorization of care, restricting access to diagnostic studies, specialists, and expensive procedures, sometimes even medicines. The proponents of 45 were caught flat-footed, or when not flat-footed, too penurious to afford proper rebuttal ads. 

The Californnia Medical Association and the Union of American Physicians and Dentists found common ground in opposing 45 -- they agreed that a likely scenario for an insurance company whose increased premium got rebuked would simply be to reduce remuneration to providers such as hospitals, clinics, and physicians. That being so, they opted to oppose the proposition since its obvious effect would be to reduce access to care. The likely next step would be for MPNs (Medical Provider Networks) to fire physicians as fast as possible -- the longer the waiting line for access to care, the lower monthly expenses would be, the higher profits and executive compensation would be,  never mind that overall serious illness would go up. The obvious fly-trap was "insurance  for everybody, medical care for nobody"

As a result these and other medical organizations opposed the proposition even though in their collective guts they may have favored the concept.  Prop. 45 did not cover providers or provider groups because it did not give the insurance commissioner authority to regulate provider reimbursement by the insurance companies.

Now it's up to the proponents to write a proper legislative bill that takes these concepts into account and puts them into legislative language in time for the 2015 legislative session. Since there's a long history on this concept, AB 52 from previous failed legislation, and now Prop. 45 itself, it should be possible to construct a new bill that will tie up these loose ends. The next step will be to get a legislative author and to be available as an articulate sponsor at committee hearings and the like. 

Indeed, since the concept already has traction, my advice is to seek out an appropriate legislator to carry the bill with the understanding  that when he looks over his shoulder he'll see troops in support, not defectors fleeing the political scene. 

SB 626 (Beall) Tackles SB 863 (DeLeon)

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

(as of Tax Day, 15 April 2013)

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

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

Secrecy in Peer Review for IMR reviewiers

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

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

Secrecy in Utilization Review (UR) 

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

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

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

Economics: how California loses $10 million in taxable revenue

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

The March of the Lawyers

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

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

Chiropractic prejudice?

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

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

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

How about old fashioned prejudice against psychiatric disability?

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

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

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

As always, reader comments are welcome and anticipated.



   

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

AB 1687 (Fong) cleared the California legislature 47 to 24. This bill takes aim at the so-called "authorization" process that insurance companies use to chew up, spit out, and ultimately deny care to injured workers.  Our previous blogs explain the bill in greater detail. Suffice to say at this point that proponents assert that injured workers who've been denied care by this arcane method which is allowed to use out-of-state doctors who are not licensed to practice medicine in California should be entitled to retain lawyers to review wrongful denials of care (see references, below). Opponents say that the bill carries an incentive to appeal even properly denied treatment requests. This author regards this assertion as an admssion that opponents already know that some denials are improper.

Supporters of the bill include the California Society of Industrial Medicine and Surgery (CSIMS), California Labor Federation (CLF), California Applicants' Attorneys Association (CAAA), and the Union of American Physicians and Dentists (UAPD). Pro-insurance interests that oppose the bill include the California Association of Joint Powers Authorities, the California Coalition on Workers' Compensation, and the Association of California Insurance Companies (ACIC).

Previously, this column has criticized AB 1687 on the grounds that it's not strong enough and will still allow non-California licensed doctors to do utilization review for workers injured in California and to overrule treatment decisions by fully licensed doctors who've also completed a state mandated pain management course (the non-licensed out-of-state doctors are exempt from this requirement). All the same, AB 1687 is a step in the right direction and could conceivably deliver a kick into the gnashing teeth of insurance companies whose mantra seems to be "profits before patients."

Other references by this author

"Wrongful utilization review perpetrated by inappropriate use of the ACOEM Guidelines," California Society of Industrial Medicine Bulletin, #4, Fall, 2006.

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

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

DID CALIFORNIA LOSE $30,000,000 IN GENERAL FUND REVENUES?

Yes, indeed, asserts this author: here's how. The State of California gives away de facto licensure to practice medicine to out-of-state doctors who are not licensed in California. Since passage of SB 899 in California, insurance companies have had the right to seek utilization review (UR) from doctors who aren't licensed in California and who haven't done the 12-hour pain management course that is required of doctors licensed in California. Non-California licensed doctors are not held accountable for wrong-doing by the Medical Board of California since they're not licensed in this state. Neither are they reponsible to the medical boards of their own states since their own medical state boards don't have jurisdiction in California. This largesse has allowed insurance companies to retain utilization reviewers from out-of-state who are compliant with the interests of insurance and UR companies. These UR doctors don't pay fees to the medical board of California. Wrongful decisions which delay or deny care to injured workers conserve money for the insurance industry and reduce taxable income since providers of care don't have to be paid.  

Protest has evolved. In 2008 Assemblywoman Sally Lieber presented AB 2968 which would have required licensure. The bill passed the legislature but Governor Schwarzenegger vetoed it. That veto is estimated to have caused California to lose about $10,000,000 in fees and taxable revenues that would have gone to the General Fund. Then Assemblyman Paul Fong presented AB 933 to accomplish the same goal. This bill also passed the legislature but Governor  Schwarzenegger vetoed it again. So now the state was down another $10,000,000 for a total of $20,000,000. But Paul Fong got a second chance with AB 584 which also passed the legislature. The surprise came when Governor Brown vetoed it ostensibly because he didn't want piecemeal changes in workers comp legislation (although he approved piecemeal legislation in other areas). Now the state's loss was an estimated $30,000,000. Not to worry, of course, tax payers can always make up the loss.

COMES NOW AB 1687 (Fong) and AB 1848 (Atkins). Both bills offer corrective measures and deserve serious consideration. Fong's bill would require clear and concise language to explain delays or denials of care by utilization reviewers. It would not require California licensure. It would not require the out-of-state non-California licensed doctors to complete the 12-hour pain management course that is a requirement in law for licensed California doctors. All the same it is a step in the right direction. Atkins' bill is the stronger bill since it would require a specified level of certification and would bring the out-of-state doctors under the purview of the medical board of California. Its wording doesn't specify that these doctors would have to comply with the 12-hour pain management requirement. Both bills can still be amended further if the authors want it done.

Cave Canem (beware of the dog) Get it done lest the next time we turn around our state will have lost $40,000,000 -- not to worry, right? We tax payers always make up the difference.