WHAT HAPPENS WHEN MISTAKES IN LEGISLATION GET SIGNED INTO LAW? SB 1303 (Pan & Gagliani)

Physicians who accept injured workers as patients know that adverse Utilization Review (UR) decisions can devastate well planned diagnostic and therapeutic programs for injured workers. Some major facilities won't tolerate this risk and refuse to accept injured workers (this blog published a letter from Stanford saying just that -- see blog) 

Utilization Review is required in workers comp. It works like this. Doctor A interviews and examines Injured Worker B and decides that certain diagnostic tests and treatment are indicated. But in workers comp and in other insurance venues that decision gets forwarded to UR doctors who do not interview or examine the patient. Instead, they review the medical record and decide about authorization for the recommended diagnostic test and/or treatment. Absent this authorization the treatment program is stopped dead in its tracks. 

Under California law doctors who do utilization review need to be licensed physicians; however, the law does not say they must be licensed in California.This oversight has led to countless situations where  doctors not licensed in California reject treatment plans proposed by doctors who are licensed in the state. The rejections may be appealed but in the vast majority of cases the rejections are upheld. It would be simple enough to correct this oversight by amending the law so that UR has to be done by California licensed physicians. Insurance companies oppose such changes. 

California-licensed physicians are subject to discipline by the state medical board which has, as a matter of fact, recommended that all physicians doing UR on California cases be licensed by the state and be subject to discipline by the state board. By contrast, non-California licensed physicians are not subject to this state's medical board so are not subject to state board discipline in California. They are also not subject to discipline by their own state boards since California cases are out of their jurisdictions. This situation has led to frequent appeals, delayed care, further injury to untreated injured workers, and an exodus of doctors from industrial medicine (workers comp). 

Now comes SB 1303, introduced by Dr. Richard Pan to make sure that forensic autopsies are conducted by licensed physicians instead of by non-medically trained persons who've been designated or elected as coroners. However, as the bill is currently written, the requirement is for this job to be done by a "medical examiner ...  a licensed physician and surgeon duly qualified as a specialist in pathology."  No mention is made of licensure in California. At least, not yet. 

In order to avoid travesties akin to what has been happening with UR for the last several years my recommendation is that medical examiners (MEs) shall meet the qualifications as already stated in SB 1303 and to these requirements be added mandatory licensure in California with the same oversight by the medical board as is provided for physicians licensed in California. No residence requirement is sought, only medical licensure in California.

Otherwise, in highly disputed forensic cases such as we've described in previous editorials, the door is opened for interested parties  to seek out medical examiners who are not subject to the state medical board. The idea would be to secure an ME who is as malleable as some of the UR doctors have turned out to be. An ounce of prevention would be to make sure that physicians accepted as MEs are licensed in California.  

References

Senate Bill # 1303 (Pan and Galgani), 16 February 2016

Forensic Autopsy Legislation, SB 1189 and SB 1303, what happens when someone dies while in administrative custody? The Weinmann Report, 19 February 2018

SB 1303, SB 1303 (Pan & Gagliani), would replace coroners with medical examiners, The Weinmann Report, 25 Feb 2018

"Probable Drowning (SB 1189, Pan & Jackson)," The Weinmann Report, 23 May 2016 (www.politicsofhealthcare.com) 

When injured workers aren't accepted, viz,, Stanford Med Ctr, The Weinmann Report, 11/25/15

SB 1303 (Pan & Gagliani) would replace coroners with medical examiners (Part II)

Incredible as it may seem, it is still true in February of  2018 that non-medically trained persons are allowed by law to conduct autopsies including forensic autopsies where evidence that may be used at trial is being compiled. My previous post told about a particularly egregious abuse of the system, namely, the blatant political assertion of power politics to influence the collection of data to protect persons of authority who appear to have abused their authority to cover up a homicide. Now the tide is turning, or so some hope. Here's why:

State Senators Richard Pan, MD, and Cathleen Galgiani introduced SB 1303. This bill will require that counties of 500,000 or more use bona fide medical examiners for autopsies. The reliance on elected or appointed county coroners will go to the scrap heap of history. The medical examiner will have to be a liccnsed MD.

The wording of the bill needs to be more precise  -- it should say that the Medical Examiner shall be an M.D. licensed in California. There is a reason: when California's Utilization Review (UR) Guidelines were developed, licensed physicians were required to do UR. It was not felt necessary to say licensed in California since all the patients were treated in California  -- that led to a clever tactic by medical provider networks and insurance companies that then scoured the country for doctors who they felt would be willing to deny care to injured workers and others.

It helped insurance companies to use doctors not licensed in California because those doctors could not be held accountable to the California Medical Board for wrongful denials of care. In turn these denials of care enabled insurance companies to avoid paying for medical services. To avoid this quagmire in SB 1303 the bill should be amended to state that Medical Examiners shall be Medical Doctors (MDs) licensed in California. 

In Decmber of 2016 Chief Medical Examiner Bennet Omalu, MD, and Susan Parson, MD, resigned from their jobs in forensic pathology in San Joaquin County. Their complaint was "routine interference" from the Sheriff-Coroner in death investigations. The assertion was that political power was routinely asserted to impede  investigations where law enforcement personnel were involved, for instance, when a detained person died while in custody.

Loss of confidence in government has occurred as a result -- years of ignoring wrongful use of power under cover of authority has always required watchful eyes and is not a popular job. In the medical legal world, replacing elected or appointed coroners with Medical Examiners who are California licensed MDs is overdue.  

SB 1303 is sponsored by the Union of American Physicians and Dentists (UAPD) and by the California Medical Association (CMA). 

Note: Although this blog is independent, not supported by any corporate or union entity, this writer is a member of both UAPD and CMA.  

PART ONE: FORENSIC AUTOPSY LEGISLATION, SB 1189 & SB 1303: what happens when someone dies while in administrative custody?

The first hint that something was wrong in the way forensic autopsies were handled occurred after a psychiatric technician at Patton State Hospital found a decedent with "his head and torso in the trashcan, with his legs across the top of the hamper ... a cloth bag over head and face." The psych tech "pulled (the decedent) out of the trashcan." The man was dead.

A forensic autopsy showed a "a single small petechial hemohrrage in the upper outer quadrant of the left sclerae and conjunctivae, consistent with a head down position." There was also an "acute hemorrhage of the tongue."

Subsequently certain conclusions were drawn including that the psych tech had discovered a "probable drowning" -- not exactly a daring conclusion given the evidence. Official investigation and forensic autopsy followed. The physician's official findings seemed surprisingly tentative given the evidence. The diagnosis was recorded as a "probable drowning (italics added)." It was also stated that the decedent's "manner" of death was "undetermined."  Homicide was not discussed.

In this case the actual forensic autopsy was done by a licensed M.D. Witnesses present included an investigator from Patton State Hospital, one other MD, two detectives, and a forensic specialist from the San Bernardino Police Department. Why were witnesses associated with the decedent's detention present along with a preponderance of law enforcement personnel? The answer is that homicide was a consideration and so was possible mishandling of the case by law enforcement. The forensic autopsy became contentious

As a consequence of this case Senator Pan authored SB 1189 of which one of the provisions was to prevent law enforcement involved in or responsible for the custody of a decedent from being present at a forensic autopsy where their own actions or dereliction may have contributed to the decedent's demise.

The bill stated that the cause and manner of death must be determined by a licensed physician (this issue comes up again in SB 1303). One part of the bill that raised hackles was the section allowing law enforcement personnel to be present in the autopsy suite at the discretion of the pathologist and then only upon completion of pertinent education and training. That's when the sparks started flying. In due course, the bill got amended (some assert it was watered down), but was eventually signed into law on 28 September 2016 and became effective on 1 January 2017.

So now, we ask, why do we need another bill, SB 1303 (Pan)? Stay tuned for Part II. 

References

"Probable drowning (SB 1189, Pan & Jackson)," The Weinmann Report, www.politicsofhealthcare.com, 23 May 2016

"When is Death by Drowning Described as 'Undetermined?' How SB 1189 (Pan) Could Bring Clarity, The Weinmann Report, www.politicsofhealthcare.com, 30 May 2016

"Forensic Autopsy Bill, SB 1189, Clears Senate, Moves to Assembly," The Weinmann Report, www.politicsofhealthcare.com, 2 June 2016

News & Information, Vol. 31 No. 27 Senate Bill 1189 Amends Requirements Relating to Autopsies, www.jones-mayer.com/news/2017/01/03 

AB 72 (Bonta): Surprise! Network contraction is the new big bad wolf

Network Contraction, protected by AB 72,  deserves to be obliterated 

In healthcare plans including workers' compensation medical provider networks or MPNs the sick or injured person is at a distinct disadvantage. The reasons include legislation that was intended to help but which missed the mark. 

For review: "surprise billing" means the method by which out-of-network providers were allowed to bill patients more for services than their in-network counterparts. Assemblyman Bonta sought to correct this situation with Assembly Bill 72 which Governor Brown signed into law on 9/23/16. Unfortunately, the bill didn't go far enough because it left "network contraction" intact.

"Network contraction" means the method by which Medical Provider Networks (MPNs) or healthcare plans generally go about making sure they are not fully staffed with specialists. It is how the plans enable "out-of-network (OON) providers." This mechanism allows the plans to keep more of the premium dollar by deflecting costs out-of-network.  This technique, known as "in-network cost sharing," opens the door to non-network providers. This method allows healthcare networks, private plans as well as workers' comp, to understaff their networks -- then when the need arises they're obliged to call in outside consultants or OON providers. In private plans the extra cost is paid by the patient. In workers comp plans the patient is obliged to find the necessary specialist and pay the piper unless by legal means the workers comp entity can be made to pay.

Our recommendation is that AB 72 be expanded, either by amendment or by newly proposed legislation. The legislative language this publication recommends for legislative year 2018 is as follows:

"Healthcare plans and workers' compensation MPN plans shall be required to maintain full provider lists covering all specialties. The plans shall provide these lists to their in-network providers and to all of their subscribers and customers. Networks that fail in this requirement shall be penalized by fines and disciplinary action to be decided by further legislative action against the managers and officers found to be or to have been non-compliant." 

References

Physicians Advocacy Council, "We're on your side!," 08/07/17

"AB 72 (Bonta) targets physicians but leaves insurance companies and MPNs unscathed," The Weinmann Report, 10/06/16

"Veto or Amend AB 72 (Bonta)," The Weinmann Report, 09/16/16

"AAPS vs. Brown - Protecting Physicians and Patients from AB 72," Association of American Physicians & Surgeons," 10/20/17

"AAPS Files in 'Surprise Billing' Case, AAPS News, 09/2017

MOC's (Maintenance of Certification) update from the American Academy of Neurology (AAN) deserves review.

AAN President Ralph L. Sacco, MD, reported in his President's Column, December 2017, that "AAN is Working Hard to Modify ABPN Maintenance of Certification (MOC)" -- not, in my opinion, hard enough and not with the enthusiasm necessary to get the job done. Here's why:

1) In The Weinmann Report (www.politicsofhealthcare.com), Friday, April 17, 2015, it was disclosed that IRS Form 990 for 2012 had reported that Larry R. Faulkner, MD, president and CEO of ABPN (American Board of Psychiatry and Neurology) was paid $843,591 for base compensation, retirement, and non-taxable benefits.

2) If we now compare that with Schedule J (Form 990) for 2015, we see that Dr. Faulkner's total compensation reportedly was $936,000. Six other ABPN persons were also paid above $250,000 including three whose compensation was well above $300,000.

3) If we study the AAN Schedule J, Form 990, for 2015 we see Executive Director Rydell's total compensation listed as $765,415. Five other persons are listed between $312,000 and $397,000.

The point to shout from rooftops loud enough for IRS and FTC to hear is that these financial figures are what motivates and drives MOC --- there's no way this kind of money will come from ordinary rank and file dues alone.The MOC gimmick is needed to make this pot boil. ABMS boards, along with their collegial societies and academies, are generating more generous self-payments from tax-exempt structures than they would were they for-profit companies. IRS should have investigated long ago -- what has held them back?  

Sacco said in his editorial that AAN's goals are to develop strategies to further understanding of health care disparities among individuals suffering with neurological conditions, that AAN wants to identify an approach to reduce these disparities, and to develop methods to improve our awareness re bias in health care outcomes of the neurological patient. He did not disclose financial disparities such as MOC fees that enrich ABPN and its enablers. 

In his November 2017 editorial Sacco talked about the December 4th meeting wherein he said "the societies will host a summit with representatives from ABMS and specialty boards, the Accreditation Council for Graduate Medical Education, Federation of State Medical Boards, Council of Medical Specialty Societies, and American Medical Association ... AAN recognizes these hassles of recertification ...  " 

Sacco mentions how these hassles "can contribute to burnout... " and says that AAN wants "to help you prepare for MOC." Actually, it appears more likely than not that all of the post-graduate organizations that sponsor MOC are doing so for self-serving financial purposes -- never in the history of medicine have administrative fees generated as much income as now. MOC proponents cannot afford to water down the fees that rank-and-file physicians will pay. If they did that then the hefty remunerations listed above would be severely trimmed. 

Our conclusion: MOC is a financially slick and clever maneuver on the brink of implosion. It should be replaced with more friendly methods of continuing medical education -- as matters stand now MOC proponents are treating physician colleagues as cannon fodder to be milked in support of narrow self-serving financial and power-driven interests.

"Trickle Down" economics

Questions have come our way about "trickle down" economics. i.e., will it work if companies invest, expand their businesses, and hire more workers. In theory, were it to follow this format, it would. The problem is that there is no way to enforce "trickle down," previously tried and sold to the public by at least one previous administration. Here's why: employers and owners are free to skim off the profit and invest it either in the USA or abroad. There is no requirement to expand the local factory, increase production, or allow increased profits to "trickle down" anywhere other than to  corporate owners personal use. In the debate and reconciliation process we await in Congress we'll listen carefully to whatever details about "trickle down" either side cares to reveal. We suggest that our readers e-mail or write their Members of Congress to ask how they expect to enforce "trickle down" to make sure that the concept isn't siphoned off and translated into personal emolument to feed CFCs  (corporate fat cats) at the top. 

"MY STROKE OF LUCK" by and starring DIANE BARNES, MD

Today's post is not a political piece: it is a theatre review of a remarkable one woman show. Here's the scoop: a few years ago, Diane Barnes, MD, San Rafael, California, was working comfortably as a radiologist until, suddenly and unpredictably, she suffered a brain hemorrhage from a ruptured aneurysm. Although she sustained considerable damage to speech, she eventually recovered without paralysis and regained linguistic competence. The show dramatizes her story and at the same time provides astonishing insight into neurological recovery, e.g., how at one time while fighting her way through dysphasic speech she'd find herself thinking she was speaking while instead she was uttering gibberish ("word salad," in technical neurological speak). She was able to return to radiology but in due course found she had thespian talent. The show depicts her transference to her new life. She'll appear through December 9, 2017, at The Marsh, 1062 Valencia Street, San Francisco (tickets are available via themarsh.org or 415-282-3055). 

UPDATE: The run for Diane Barnes' show, My Stroke of Luck,  has been extended: same place, same time, shows will resume 1/4 to 2/3 Thurs 8 PM, Sat 5 PM and Sun 1/21 and 1/28 at 2 PM. Don't miss it especially if you're involved in neuroscience either as a clinician or researcher.