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 -- that's the program that had to refund nearly a million dollars for double-billing circa 1981 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.

A BONANZA OF MALPRACTICE LITIGATION IS IN THE OFFING

STATE SENATE BILLS 491, 492, AND 493 ARE BILATERAL TRIPLE MALPRACTICE BONANZAS FOR TRIAL LAWYERS -- ON BOTH SIDES.

Senator Ed Hernandez's bills to promote expanded scope of practice for nurses, optometrists, and pharmacists,  scheduled for hearing on April 22nd, got pulled from committee just hours before the hearing.

In our previous post on this topic we pointed out, as did others, that these bills lower the level of education and training for healthcare professionals especially with reference to  differential diagnosis and selection of diagnostic and treatment modalities. If it is determined that a lower level of education and training is acceptable, then the same level of reduced education and training should also be acceptable for physicians. Since these bills allow reduced levels of required education for the same or similar services, we should expect increasing levels of malpractice litigation should any of these bills get voted into law -- a boon to  both plaintiffs' and defense bars, a veritable bonanza of malpractice litigation.

Late notice: we're advised that the Hernandez bills will be brought up in committee on April 29th.

NO, NO, NO ON SB 491, 492, AND 493!

Do we as citizens agree to reduce the level of education and training of our physicians while increasing the number of healthcare providers by expanding the healthcare pool to include nurses and others? Some say the Hernandez Trio, SB 491, 492, and 493 would do just that. The critical question is whether so doing  would be advantageous or detrimental to the provision of healthcare generally.

SB 491 would let Nurse Practitioners (NPs) practice medicine on their own, just as physicians do. The argument for so doing is that there is a dearth of physicians especially in rural areas that NPs could fill.
The counter argument is that physicians are better educated and trained in terms of diagnostics, differential diagnosis, and therapeutics, that is, how to distinguish what may seem to be an inocuous illness as opposed to the harbinger of a medical catastrophe. The issue is whether or not the exchange is worth the candle. The probable result of passage of SB 491 is that NPs, once licensed, will skedaddle from rural practice as fast as their physician colleagues and will set up shop where the money is and compete with their more advanced and more highly trained counterparts. THAT'S the underlying issue. The rest is window-dressing.

SB 492 would allow optometrists to act as ophthalmologists without the pesky interval of real honest-to-gosh medical education and training. Under SB 492 optometrists would be allowed to administer and prescribe drugs including controlled substances. Never mind that right now at the same time various task forces are trying to make it increasingly difficult even for well trained physicians to prescribe narcotics. SB 492 implies that full blown medical education is not necessary for safe ophthalmology practice. If one believes that then SB 492 isn't a problem.

SB 493 would allow pharmacists to dispense medications. In some cases, as when a renewal isn't attended to promptly by a physician, pharmacists already do just that. Their argument is that their training in pharmacology is actually more than most physicians get. On the other hand, conveniently ignored is that pharmacists aren't educated or trained in physical diagnosis and often are not equipped to deal with the adverse consequences of medications. The upshot is that they may prescribe and leave it to some physician somewhere to deal with the complications.

Commentary

"Nurse practitioners battle for right to treat patients" is the title of a piece by Shannon Pettypiece, Bloomberg Businessweek reporter. She describes the predicament of Christy Blanco, Nurse Practitioner in El Paso, who has a doctorate degree in nursing practice. Blanco asserts competence in treating diabetes, asthma, high blood pressure, and other conditions. Blanco's problem is that in Texas she is required to contract with a doctor to sign off on medical charts. By contrast no such requirement  exists in New Mexico so Blanco is considering moving there. In her suboptimally used El Paso office she states she is "spending money and making no profit." Ruefully, she adds, "it is a business."

Yessirree, "it is a business," one that has been learned by managed care organizations and corporate American generally and is about to be upgraded by Accountable Care Organizations and pharmacies that are opening their own clinics to be staffed by nurse practitioners and, maybe, even by some physicians (we don't say "even by some doctors" since in due course the NPs will have doctorate degrees in nursing practice).

Competition is not precluded by Hernandez' three bills. Physicians usually leave Nursing Plans in the hands of nurses. They're not required by law to do so. So if competition is the name of the game, one possibility is for physicians to add nursing practice to their own armamentaria. So doing makes more sense than trying to maintain the status quo. We can expect that universities, ever on the prowl for profitability, just like corporate America anywhere, will hire physicians to teach the nurses and then award them "Equivalency Certifications" suitable for framing and display. Physicians can also construct practices entitled to collective bargaining so they can be on equal footing with the nurses who've developed significant enough clout to be direct members of the AFL-CIO (meanwhile, not far behind, is the Union of American Physicians and Dentists, otherwise known as the UAPD or Local 206 of AFSCME, the largest union within the AFL-CIO).

A little known fact, recently revealed by Stuart Bussey, MD, JD, president of the UAPD is that in 2012 the doctors' union was obliged to negotiate with San Francisco County to raise the salaries of the doctors to equal the salaries of the FNPs. The predicament was a kudo for union power on both sides. Unfortunately for the doctors, their preferred professional associations and societies are not unions and are not allowed to negotiate collectively. The nurses don't suffer from this form of erudite elitism.

Professional education has always been considered the democratic equivalent of royal titledom.  We defer to titles, e.g., "doctor. " The nurses' and optometrists' answer is to upgrade alternative forms of education so that the "doctor" title can be bestowed.  Pushing the fact that the higher education and training that physicians get has intrinisic worth is held to be an elitist argument. The answer is to downgrade elitisim. That's where we're headed: less education, less training, equivalency certification, upgraded titles, and a race to the bottom where money lies in tempting repose.

The Affordable Care Act is supposed to upgrade healthcare for all. The expanded application of SB 491, 492, and 493 will downgrade healthcare for all but will expand access to some form of care. This triumverate of bills allows otherwise well trained professionals to work beyond their levels of training. We anticipate in the long run malpractice premiums will increase to accommodate the addition of suboptimally trained new professionals. We recommend a no vote on SBs 491, 492, and 493.