ALERT re AB 889 (Frazier)                                                              

AB 889 has just passed the Assembly Floor vote victoriously. The next procedural stop for this bill is the state senate. This bill is unique in that it'll remove stepwise medication requirements for patients generally but will still leave room for the insurance companies to  impose stepwise prescribing for injured workers pursuant to SB 863. In other words, it will give benefits to patients who are privately insured or who are dependent upon HMOs, PPOs, and managed care that will not be made available to injured workers who will still be subject to stepwise prescribing by dint of SB 863 since they will remain subject to the whims of MPNs (Medical Provider Networks) empowered to make their own decisions and whose power under the law has been increased by last year's passage of SB 863. If AB 889 makes it through the Senate, it'll still be subject to Gubernatorial veto -- the Governor vetoed similar legislation  last year. Proponents of AB 889 need to start now to work the state senate and also the Governor's office. Some legislators who favor AB 889 are the same legislators who voted for SB 863 -- their votes now for AB 889 may be an act of contrition or a call of conscience. Either way it's a good start. Now we need the state senate  to come on board and for the legislature to convince Gov. Brown not to veto the bill if it passes the legislature.

Proponents of this legislation are currently reported to include groups as diverse as the California Medical Association, the Union of American Physicians and Dentists, and the American Federation of State, County and Municipal Employees. We expect that Assemblyman Frazier's website will reflect a larger list.

THE 9th U.S. CIRCUIT COURT OF APPEALS LAST FRIDAY REJECTED THE ATTEMPT TO RESCIND THE 10% PROVIDER RATE CUT FOR TREATING THE POOR AND IMPOVERISHED. 

The lawsuit in favor of repealing the 10% cut would have undercut Governor Brown's austerity budget. The Brown administration believes that the state will save about $508 million over the next two years based on implementation of the 10% cut.  We are not surprised that the adnimistration is reconsidering the accuracy of this amount.  We are not as surprised as once we would have been that Governor Brown's administration delivered a kick in the butt to California's poor and impoverished and that this position, which would have done honor to Marie Antoinette of "let them eat cake" fame, has now been upheld by the Appeals Court.

SB  640 (Lara) is currently on the legislative docket and could cure the 10% cut. In its original form the bill is unlikely to pass. This bill is stalled in committee. Lara may be obliged to accept amendments that gut his bill or get nothing at all. One possible amendment is allowing the legislation to rescind the 10% cut for skilled nursing facilities while keeping the 10% cut in place for physicians and hospitals.  If the 10% cut is kept in the bill, the likelihood is that even more money will be saved as physicians drop out of the program and hospitals lay off workers. Lives will be lost, morbidity will increase, but the budget will have been balanced.

AB 900 (Alejo) has already been amended to limit the bill to restoration of the 10% to skilled nursing facilities. This ploy splits the opposition by appeasing one faction at the expense of the others.  Proponents of these two bills to date have included the California Medical Association, as sponsor, with support from the Service Employees International Union,  the Union of American Physicians and Dentists, the California Hospital Association, and the California Neurology Society, among others.

Physicians and other providers including hospitals and their Medi-Cal patients stand to lose signficantly if the bills fail because retroactive payments may be sought since the court case has already failed. The cuts are expected to include clawbacks for two years based on the delay in implementation of the cuts since 2011. Part of the current reason for amendments that agree to limit the bill to skilled nursing facilities is to allow the Governor just enough daylight  not to veto the bills should they pass. We'll see. Just don't hold your breath especially if you're a patient dependent on Medi-Cal.

MEDI-CAL PROVIDER CUTS: SB 640 AND AB 900

When does austerity mean tossing sick people under the bus?

Answer: anytime there's a government shortfall.

SB 640 (Lara) and AB 900 (Alejo) are designed to prevent the 10% Medi-Cal provider cuts that are now in the legislative hopper.  California is short of money. Apple's Tim Cook is now under the gun for sequestering money abroad in order to avoid taxes in the USA.  Last we looked, Cook was not only from America, but also from California. Not to worry. There's another way to get some money into California: cut down on the money spent on the sick and poor, especially citizens who are sick and poor at the same time.  That definition is fulfilled by Medicaid patients. In California, that program is called Medi-Cal.  

Medi-Cal has always had a sordid reputation in California. In 1981 Medi-Cal had to be coerced to  get back nearly a million dollars it carelessly overpaid to a single recipient for double-billing  (that was when a million dollars was still thought of as money).  The ante has  gone up since then but the program remains a conduit for channeling less and less money to  Medi-Cal patients. The impetus is to reduce Medi-Cal provider payments by 10% even though it's understood that such a move will drive providers out of the system.  Fewer providers plays into the hands of those who want more than the 10% cut. If enough providers opt out the cut in provider fees will considerably excced 10%.  Doctors will get blamed for not participating in a widespread system of moral bankruptcy and financial irresponsibility.

SB 640 and AB 900 will reverse the 10% cut providers and their patients suffer as a result of the 2011-2012  state budget. The California Medical Association has challenged the cuts in court and gets credit for sponsoring these bills.  We recommend support for SB 640 and AB 900.

SB 491 (Hernandez) CLEARS COMMITTEE

NURSES WIN KEY COMMITTEE VOTE

First, the facts

In a stunning victory for Nurse Practitioners SB 491 (Hernandez) cleared the Senate Appropriations Committee by a 4 to zero vote (DeLeon, Hill, Lara, and Steinberg). There were
no votes against the bill (Walters, Gaines, and Padilla were not recorded to have voted). No matter, the measure needed only the 4 votes it got.  

The California Medical Association, opposed to the bill, said in its Hot List that "this bill gives nurse practitioners independent practice" because "nurse practitioners will no longer need to  work pursuant to standardized protocols and procedures or any supervising physician and  would basically give them a plenary license to practice medicine."

One of the arguments by Senator Hernandez that proved particularly attractive to proponents was his assertion that allowing Nurse Practitioners to practice medicine "can reduce the cost of medical care by allowing lower-cost workers to  do more routine tasks in place of higher-paid MDs." In this blog, we have already asserted why this fanciful concept may well prove to be illusory. The nurses are well organized and have a strong union. In the opinion of this author the nurses' unions would be asleep at the switch were they to stand idly by while their colleagues got paid less than physicians for doing the same work.

Milton Lorig, MD, Union of American Physicians and Dentists, wrote in the Sacramento Bee that "physicians like myself have undergone far more rigorous training" and that he doubted that a mid-level practitioner "would have made the diagnosis of NMDA-Receptor Autoimmune Encephalitis" that he recently treated. Lorig argued that "patients deserve ready access to providers who are adequately trained." He did not, however, persuade DeLeon, Hill, Lara, or Steinberg -- just one would have been sufficient to save the day for optimal care.

Author's amendments may still be introduced, for instance, a provision to delete the authority for nurse practitioners to make diagnoses of patients and to perform procedures. Allowing expanded use of skilled nurses should not be done by lowering practice standards that physicians, nurses, and scientists have worked centuries to develop.
 

SB 494 REDUCES PHYSICIANS' ABILITY TO PROVIDE OPTIMAL CARE AND COUNSELING

LEGISLATION ALERT

SB 494 DILUTES ACCESS TO QUALITY  HEALTH CARE

SB 494 was introduced by Senator Monning and enjoys having Senator Ed Hernandez as the principal co-author. Their bill was heard in Sacramento this morning.

SB 494 would increase the number of health plan enrollees or insureds to primary care physicians. The original bill was introduced on 2/21/13 and was amended on 4/03/13 to allow "the assignment of up to 2,000 enrollees or insureds to each full-time equivalent primary care physician and would authorize the assignment of an additional 1,750 enrollees or insureds" to each primary care physician if that physician supervises one or more nonphysician medical practitioners.

The bill threatens that "willful violation ... would be a crime."

Senator Hernandez has also proposed enlarging the scope of practice for nurses, optometrists, and pharmacists (SBs 491, 492, 493). Diluting the quality of health care, Hernandez evidently feels, will improve access to health care generally. SB 494 is a companion bill that will make it impossible to do anything else but reduce the quality of physician-time spent with patients. Physicians will be penalized for having assistants by having their workloads increased. That maneuver by itself will chop down the amount of time physicians can spend counseling patients. If this bill is signed into law, patients will yearn for the day then they were allowed a whole ten or fifteen minutes with their doctors.

SB 494 is intended to bully physicians because it makes willful violation a crime. Physicians may not be in charge of whether or not they have assistants since assistants may be hired by HMOs, Accountable Care organizations, Foundations, hospitals, and managed care plans generally. This proposed legislation damages physicians' chances to provide optimal diagnostic and counseling efforts. 

At the hearing today, no testimony was offered by physicians' organizations.  

IF THE WORK IS EQUAL, SHOULDN'T THE PAY BE EQUAL?

Senate Bills 491, 492, and 493 (Hernandez) would allow RNs with advanced training, optometrists, and pharmacists to practice medical care without the pesky obligation of going to medical school, doing internships, or submitting to residency programs under the supervision of faculty. Indeed, most surgery would remain out ot bounds (not all surgery, mind you!).  The nurses, optometrists, and pharmacists would be allowed to undertake primary care. The RNs with advanced training would be qualified as Nurse Practitioners.  Proponents argue that this largesse will reduce medical costs because lower-cost workers would take over some of the tasks done by physicians. Just where to draw the line is one of the problems. For instance, how does one "draw the line" when the differential diagnosis of, say, "numbness" is the chief complaint?  Should an evaluation  for multiple sclerosis be considered? The patient who is misdirected to the lower level diagnostician will find out the hard way.

The San Jose Mercury News, in an editorial on April 12, 2013, said "these bills ... would allow nurse practitioners to establish indpendent practices and deliver limited care without a doctor's oversight." It has also been argued that the lesser-level practitioner would be paid less. Herein lies a problem: if the NP, optometrist, or pharmacist is delivering medical care equal to or on a par with physicians, shouldn't the lesser level practitioners be paid at the same level?

The Affordable Care Act is supposed to expand access to care, not to water it down.

Recently, we learned that the Union of American Physicians and Dentists negotiated a raise for physicians by showing that a  group of nurses was being paid more than their physician counterparts. The opportunities in Hernandez's  legislation make it worthwhile for physicians, nurses, optometrists, and pharmacists to organize into collective bargaining units lest the Hernandez package be used to create equal work with unequal pay. 

If the Hernandez  package is passed,  the nurses' unions would be asleep at the switch if they did not seek equal pay for equal work.

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

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

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

Similar legislation, AB 369 (Huffman) was vetoed last year by Governor Brown. Here's what the Governor said about AB 369 in his veto message: "this bill would prohibit a health plan or insurer from requiring a patient to try and 'fail' more than two medications before allowing a patient to have the pain medication prescribed by his or her doctor."

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

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

Governor Brown should be interviewed about these comments repeatedly.

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

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