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.

The Multiple Assassinations of Robert F. Kennedy

Most followers of the assassination of RFK know about two principal arguments that cast doubt on the official version of this event, namely, that Sirhan Bishara Sirhan, as a lone gunman, shot RFK. The first disputable evidence that any of Sirhan's shots could have done the damage is that Sirhan was in front of RFK. The second disputable evidence is that it is still claimed that more than 8 shots were fired -- important because Sirhan's gun was a revolver with a maximum of 8 shots. If there were more than 8 shots, the reasonable assumption would be that there was another shooter. We know that CNN is covering the story and have advised that their reporters study the original autopsy and pathology reports. It is no secret, in fact, it has been known for years, that the kill shot penetrated RFK's skull behind the right ear -- maybe from only inches away. We need to ask if the autopsy showed evidence of a close-up gun shot wound behind the right ear.

We have eyewitness testimony that cannot be accepted without study because so many years have passed since the shooting and since the testimony was originally offered. On the other hand, if it can be shown beyond reasonable doubt that more than 8 shots were fired, the "lone gunman" theory bites the dust and gives rise to a bona fide "conspiracy" theory -- with all of the conspirators having fled the coop, leaving Sirhan holding the bag alone.

That leaves the following question as the critical mass: does the autopsy report and any pathology reports that followed establish with reasonable medical and legal probability that the kill shot was delivered from behind and that the area of penetration was behind RFK's right ear? When the kill shot is fired from close enough, gunshot residue may be present.

If that's correct, not only is the lone gunman theory gone, but so are the other perpetrators and most of those who may've helped to curtail whatever investigation might have been appropriate at the time.

Never mind. It's never too late to learn the truth. We owe that to history.

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!

POISON PILLS AND HOT TICKETS  -- IS THE IPAB BOTH?

The Hot Ticket for health care on a national basis is the fate of the Affordable Care Act (ACA), also called Obamacare,  and its controversial arm to keep costs in check, namely, the Independent Payment Review Board (IPAB).  Congressional Representative, Anna Eshoo, D-Ca, in a recent exchange with this writer, said that demands to repeal the IPAB were ill considered because we need to control costs.

Medical historians know that the IPAB began life as the IMAB or Independent Medicare Advisory Board. When the Medicare community learned to what extent it was being targeted, cries of "death panels," exaggerated though they were, brought the IMAB to its knees, well, to one knee anyway, because it's now back on its feet as the IPAB in the ACA (Section 10320 thereof).

Meeting now in New Orleans is the American Academy of Neurology (AAN). In an official publication dated 23 March 2012, the following was stated: "The AAN strongly supports both IPAB repeal and medical malpractice reform ... with the addition of the poison pill (italics added) of liability reform, House Republicans were still able to pass IPAB repeal but lost most of the Democratic support."

For the uninitiated, a poison pill in legislation may be an element added as an amendment to a bill that causes a substantial number of legislators to pull away from the bill though they might otherwise support it. In this case, medical malpractice reform is not what the trial lawyers or their legislative allies want. So to them linking repeal of the IPAB to medical malpractice reform is a poison pill that works for their interests since it'll stop medical malpractice reform just as it's emerging again as a force.

In an earlier publication dated 14 July 2011, "Tell Congress to Eliminate the IPAB," AAN stated that the "IPAB effectively removes Medicare spending decisions from Congress  and leaves them up to an unelected, unaccountable board." Actually, the board members will be responsible to the politicians who get them appointed to the board.

If the name of the game, as Eshoo said, is to control costs, the meaning is clear -- cost control gets priority over the medical care that we as individual patients may actually get. It means that treatments favorably reviewed by professional organizations may not be approved for use by the IPAB because of obeisance to cost-control rules and regulations, not yet even codified.  Political considerations, not medical indications, now govern medical care.

In this instance, all it took to slow down IPAB repeal was to link it to medical malpractice reform. That's how poison pills work. Is there palliation for this poison pill? Yes, there could be.

Requiring Congress to be covered by the ACA and the IPAB should it survive could be palliative. Congress, knowing little about the bill, having passed it "to see what's in it," knew enough about it all along to know that they didn't want to be covered by it. So Congress exempted itself from ACA coverage. We should insist they extend the ACA, if it survives court challenge, so that Congress itself is covered by it -- that's when, and only then, will we  know with reasonable medical probability that the IPAB will either be eliminated or will conduct itself equitably.

Repeal of the IPAB or, at the least, modification of the ACA should be a top priority for any organization purportedly devoted to equitable medical care.