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.

YOUR DOCTOR ISN'T IN THE PLAN ANYMORE. NEITHER IS YOUR PLAN.

"I'm sorry," tolls the receptionist in a bored voice, "but your doctor isn't in our plan anymore."

Senator Reid opts out: click on comments at end of this editorial re Reid's Obamacare snub

Item A concerns a doctor whose healthcare policy was abruptly canceled when her own physician announced he was quitting the health care plan, would no longer accept insurance, and would henceforth require monthly "concierge" style payment, plus a cash fee for office visits, and that she'd have to have separate insurance for hospitalization whether needed or not.  As for the healthcare plan he was leaving -- the plan would either be disbanded or taken over by doctors who could speak English.

Note: for the uninitiated, "concierge" style practices require advance payment arrangements such as monthly, quarterly, or annual payments plus fees applicable to the services patients use. Medications are not included. Insurance plans are not accepted.

Item B is about several doctors in various settings who have in common that they've sold their practices to corporate entities, foundations, exchanges, or other business groups. It works like this: the corporate entity buys the practice, then employs the doctor or somebody else to run it on a day-to-day basis. The corporate entity pays the staff, the rent, and the expenses. To recoup its money, and to make more money, the practice is required to double or triple its volume. To accomplish this task, the time spent with  each patient must be reduced, say, to a few minutes. That'll be the job of the staff who now no longer works directly for the doctor or the patient but who instead is responsible to the employer. In this plan, insurance is still accepted, in fact, is welcome. If the on-site managing doctor and his staff can't meet these goals, they'll be replaced.

Healthcare Plans that cover patients, doctors, and insurers vary widely. They may assign doctors to multiple plans and keep track of so-called "production," how many patients each doctor sees and how long the average visit takes. Doctors whose "production" numbers are profitable to  the company will have a higher rate of retention providing they don't rock the corporate boat in other ways (then they're called "disruptive" and get fired anyway).  What procedures and surgeries are allowed will be a corporate decision dependent on cost-benefit ratios, not patient need.

Healthcare Plans may be narrow and include a minimal number of specialists and no highly sub-specialized surgeons. It's your  personal out-of-pocket lookout if services not included in your medical provider network are sought.

Utilization Review (UR) is already used in California for injured workers who may be denied access to specialized care by a UR doctor who is not licensed in California and who has never seen the patient. The UR doctor's judgment may nonetheless overrule the California-licensed primary treating physician's judgment even though the primary physician has spent hours with the patient.

In this way, UR in California and the ACA throughout the USA are joined -- see our previous editorials on the Independent Payment Advisory Board (IPAB) which was originally rejected for Medicare under its previous name, the Independent Medicare Advisory Board (IMAB). Some pundits assert that the ACA under the guise of Obamacare is actually a nationwide watered down HMO and that to keep it that way it's necessary to eliminate as many hospitals and specialized centers as possible, and as many doctors as possible, while making the remaining doctors act like cattle herders trying to avert a stampede.

Stay tuned. These issues have long legs.

References

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

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

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

Dear Doctor Pan,

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

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

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

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

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

Yours truly,

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

References

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

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

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

OPPOSE PROPOSED WORKERS COMP REFORM MEASURE, BRIEFLY KNOWN AS SB 863, A GUT AND AMEND VEHICLE

WHY THE PROPOSED WORKERS' COMP REFORM MEASURE WITH A SHORT HALF-LIFE AS SB 863 SHOULD  BE DEFEATED  

SB 863 was originally chosen to be the gut-and-amend vehicle for this proposed workers' comp travesty.  We have revised our own original text. Where it previously said SB 863 for a few hours, it now only says "the proposed workers' comp reform measure" albeit with a hiss and a spit every now and then.

We previously opposed SB 923 because it would shove the Medicare RBRVS down the throats of injured workers and their treating doctors. The idea of this bill was to replace the low pay Official Medical Fee Schedule (OMFS) with the still lower paying Medicare RBRVS.  The upshot would be loss of access to specialty care.  It would foist on Primary Treating Physicians (PTPs) a level of care requirement beyond their training. 

We now find that the provisions of SB 923 are hidden within 279 pages of proposed legislative language. When 279 pages of a legislative proposal are sprung at the end of session we suspect that somebody is getting ambushed. In this case it's the injured workers and their access to specialty care.

We have supported AB 1687 which would open up the Utilization Review (UR)  process a little and give injured workers a chance. The proposed workers' comp reform measure wipes that opportunity out because it proposes an Independent Medical Review (IMR) process that will protect the worst aspects of the current UR process, namely, the allowed process of letting doctors who don't interview or examine specific injured workers to overrule the decisions of the doctors who have interviewed and examined them.

The 279 pages referenced above arrogantly protect this unfair system by establishing an IMR process that will be even harder to appeal against than the current already obtuse UR system. 

One is obliged to ask how a system that alleges it'll put an additional $700 million into Permanent Disability (PD) could be bad for injured workers. The answer lies in the claim that it'll also reduce costs by $1.4 billion. We are not told who will get the left over $700 million.  We are not told that management groups of non-physicians who charge groups of treating doctors for administrative services will be allowed to raise their management fees. While they may pay the PTPs a little more, they're not obliged to do so.

Here's what else the 279 pages tell us, well, some of it, anyway:

The proposed workers' comp reform measure currently plans to impose $150 mandatory filing fees for liens. Once the doctors are then short-changed and obliged to file fees for liens anyway, they'll reconsider if they should stay in the system.

The proposed workers' comp reform language  currently plans to impose a copy service fee that will further slow down injured workers' ability to prove their workers' comp cases.

The proposed workers' comp reform measure will curtail some of the features currently allowed by the otherwise already restrictive AMA Guides to Impairment currently used to establish reimbursable impairments re Activities of Daily Living (ADLs).

Sadly, the newly proposed workers' comp reform measure  has earned the right to be disgraced before it is defeated. It also exposes how the gut-and-amend process may be abused and misused.

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) 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.

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.

YES, re AB 1687 (Fong): it gives injured workers a fair chance!

According to the California Professional Firefighters (CPF) website this bill to make limited reforms in workers' compensation utilization review (UR) procedures will require that "communications about a delay, modification or denial of workers comp treatment would be required to include prominently displayed alternatives for the injured worker's next steps. In addition, if a related medical treatment dispute arises, and enforcement of a future medical award is required for continuing an injured worker's medical treatment, this bill allows the Workers Compensation Appeals Board to award reasonably-incurred attorney's fees in instances where an injured worker prevails in validating the medical award." We feel this bill is a step in the right direction so we recommend a yes vote.

Previously, we've crticized the bill because we felt it didn't go far enough since it doesn't require that doctors who do UR in California be licensed in California. As matters stand now, doctors with only Texas licenses may do UR in California whereas doctors with only California licenses cannot do UR in Texas. The California policy caters to insurance companies that use non-California doctors to issue UR denials -- that saves money for the insurance companies since they don't pay for treatment that has been denied by UR.

The overall loss to California in terms of fees and taxes is about $10,000,000 per year, a total of $30,000,000 when we take into account that Schwarzenegger vetoed this legislation twice and Brown, once. Protection of the insurance industry seems to be an area where Schwarzenegger and Brown agree.

Now comes Paul Fong with AB 1687 which would not require licensure in California but which would call for reasonable explanations of denial of care and that these denials of care be in clear and concise language.

Existing law requires that workers injured in the course of employment get indicated medical treatment and that they get compensated. Unreasonable denials of care are supposed to be subject to penalties and attorney fees. The trouble is that this requirement is commonly pushed aside while the two-year disability limit runs out. The current review process is not equitable because the degree to which UR doctors especially unlicensed ones are independent is questionable. In our view, the current system has already run roughshod over the workers' comp reforms embodied in SB 899, which many now feel was a shoddily written and hastily approved backroom agreement.

It's time to try again: it's time to give AB 1687 (Fong) a chance. If that doesn't work, we'll see about running a new licensure bill unless Fong and CPF decide to include such an amendment in AB 1687.

References

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

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

"Committee Passes Bill Authorizing Attorney Fees in UR Disputes," by Greg Jones, Western Bureau Chief, workcompcentral, 4/19/12

"Bills Target UR Denial," by Greg Jones, Western Bureau Chief, 3/20/12, workcompcentral, 3/20/12

"UR Data in Bill Analysis Highlights Need for Good Data," by Greg Jones, Western Bureau Chief, workcompcentral, 5/21/2012

HOW SB 923 WILL PROTECT INJURED WORKERS OUT OF THE HEALTHCARE THEY ALREADY HAVE

THE INJURED WORKERS WHO WILL BE HARMED MOST IF SB 923 (De Leon) becomes law are those whose jobs predispose them to serious injuries, e.g., construction workers and farmers, telephone repair workers, restaurant workers, freight handlers, even health care personnel (one health care worker was killed on the job in 2011) and other maintenance workers. SB 923 should bite the dust this year just as it did last year.

Ostensibly, the reason for SB 923 is to enable use of the Medicare RBRVS to pay for physicians' services to injured workers. The idea is to reduce payment to specialists so that payment to primary treating physicians (PTPs) can be increased. The proposed mechanism is to replace the current Office Medical Fee Schedule (OMFS) with the Medicare RBRVS.

But there's a catch. While SB 923 will reduce payment to specialists, it will not necessarily increase pay to the PTPs. In fact, the bill as currently written does not guarantee this outcome. In a personal letter by this writer to Daniel Crowley, Chairman and CEO of US HealthWorks, 6/24/2011, it was pointed out that SB 923 will cause specialists to withdraw from providing services to injured workers. Speaking to one of the committees that heard the bill last year, Stuart Bussey, MD, JD, president of the Union of American Physicians and Dentists, Local 206 of the American Federation of State, County and Municipal Employees (AFSCME, AFL-CIO) acknowledged that SB 923 might give PTPs a temporary "boost." Bussey also said that it would leave him, as a PTP, "holding the bag" for malpractice when he couldn't get specialists in timely fashion for seriously injured workers. Eventually, the UAPD went "neutral" or "watch" on the bill. The bill failed when a consortium of opponents teamed up to oppose it, an unlikely coalition led by the California Society of Industrial Medicine and Surgery (CSIMS).

Opposition to SB 923 also included the California Medical Association,  the California Orthopedic Association, the California Chiropractic Association, the California Neurology Society, the Interfaith Community of Los Angeles, the League of United Latin American Citizens, Voters Injured at Work, Latino Comp, La Raza Roundtable, and numerous individuals including injured workers who understood that the bill would protect them out of the healthcare protection they already had.

The Other Catch is how SB 923 is sponsored and how US Health Works gets paid. When USHW gets paid for providing care to injured workers, a portion of the money goes to the non-physician management company and to the investors who own the USHW clinics. Not all the money that the Medicare RBRVS conversion raises would go to the PTPs. Payment for management services is paid by the physicians, the PTPs. SB 923 as written doesn't preclude USHW from increasing its management fees to the PTPs. Once the doctors' group has received this  pay increase thanks to passage of SB 923 the next step will be to share it with the management group. Some pundits think that this factor is the real reason USHW executives are pushing for passage of SB 923.

Does the OMFS pay too much? The OMFS was set up in  1975 as a market-based mechanism (the Medicare RBRVS is not). Specialists are paid 5% less for specialty procedures now than they were in 1986. By contrast, the Evaluation and Management codes (E & M codes) for PTPs have been increased three times since 1986.

Unpredicted consequences of SB 923 are likely to include loss of Medical Provider Networks (MPNs) when the MPNs lose enough specialists such that they no longer meet the standards of the Labor Code pursuant to the reforms implemented during the Schwarzenegger years since 2004 and passage into law of SB 899. Some states such as Hawaii and Texas had to revise their Medicare-based fee schedules to bring the specialists back in -- thereby defeating the very purpose of having voted in the Medicare RBRVS. The anticipated reductions in pay to the specialists would be from 20 to 48% under SB 923 -- at that rate many specialists would be obliged to quit the program. Robbing Peter to pay Paul is not sound economic policy.

Conclusion: SB 923 qualifies for our "bite the dust" recommendation. The OMFS is already low cost. Updating it is recommended. Getting rid of it would endanger the provision of care to injured workers.

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!

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.

Utilization Review in Workers Comp by Non-licensed Doctors

Utilization Review by doctors without California licenses continues to bedevil California physicians and rob injured workers of indicated care.

Here's what happened recently to an orthopedist in San Jose and his patient. The orthopedist found that his patient had evidence of an osteoid osteoma or similar lesion. The orthopedist stated in his report that "there is clear-cut pathology ... with a dye leak from the mid-carpal joint to the radiocarpal joint through the scapholunate and triquetro-hamate intervals."

The treating orthopedic surgeon sought authorization for left wrist arthroscopy and excision of the lesion in the distal radius. The insurance company handed over this request for authorization to a doctor without a California license. The proposed medical treatment was then deemed "not certified" and denied.

In a formal affirmation of the denied authorization, the Utilization Review doctor asserted he'd had "peer-to-peer discussion" with the treating orthopedist. This description stretches the truth. The out-of-state doctor may call himself a peer but, truth is, the California-licensed orthopedist completed a 12 hour course in pain management as required by the Medical Board of California whereas the out-of-state doctors isn't required to meet this requirement. He is exempt. But he is useful to insurance companies that want surgery delayed or denied.

When the treating orthopedist reviewed the non-California licensed doctor's negative report, he found that the non-California licensed doctor had not reviewed the X-rays. Nonetheless, the non-California licensed doctor turned a patient away from needed and indicated arthroscopy.

The treating orthopedist, duly licensed to practice medicine in California, stated in his own rebuttal, that "it is reasonable to proceed with a surgical arthroscopy " and, "prior to a final decision regarding surgery, to proceed with a limited bone scan to evaluate the bone lesion seen on CT."

This effort was initially thwarted by the Schwarzenegger administration's application of law. A non-California licensed doctor was allowed to overrule a licensed California doctor. In this case, harm was done because necessary and needed surgical intervention was delayed and initially denied. The treating doctor had to take on an insurance company and their non-California licensed doctor. Readers will be glad to know the arthroscopy was eventually done thanks to the fighting spirit of the treating doctor. The lesion was excised and the patient is a happy camper (no thanks to the Schwarzenegger administration and its distortion of Utilization Review).

The fault lies with the Office of Administrative Law and the Schwarzenegger administration. Both have cow-towed to insurance company interests. Both have made it possible for carpetbaggers to practice medicine in California. AB 933 (Fong) would put a stop to this nonsense. AB 933 (Fong) will require that doctors who do Utilization Review for injured workers in California be licensed in California.

The latest amendments to AB 933 (Fong) include provisions to govern how Medical Provider Networks function so that the perception that MPNs drop physicians from their rosters on an arbitrary basis can be corrected.

AB 933 (Fong) is up for hearing in Senate Appropriations on Monday, August 2nd. E-mail your concerns to committee staff, bob.franzoia@sen.ca.gov, and copy to assemblymember.fong@asm.ca.gov