Tuesday, March 18, 2014


"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.


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.  


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.

Sunday, March 2, 2014


Our posts on workers compensation in California have often stirred up hornets' nests, sometimes only to disclose honey-bees. Here's the latest ruckus:

1)  In our previous post we referred to WCAB's "en banc" decision re Jose Dubon v World Restoration and SCIF as a landmark event and even as a triumph for injured workers.

2) We said WCAB stated that "a UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision."

3) We also pointed out that the WCAB decision said that the UR decision would be invalid only if the defect or defects in its processing of a claim were "material" and that just "technical or immaterial" defects would not cut the mustard.

4) So here's one of the major objections we got from a knowledgeable doctor who does workers comp: "I fail to see what's so great for the injured worker ... nothing has changed ,,, the 'burden of proof' is still on the patient to challenge the UR, which is presumed correct, by  going though IMR/Maximus UR. This just says you're only allowed to challenge ... if they don't file their report (no matter how bogus it is) on  time. Big effin' deal."

5) Maybe  so, but here's the riposte: it has always been the case that the injured worker or his representative had to carry the burden of proof. Since the provider is getting the money and the injured worker is getting access to treatment, who else would be expected to carry the burden of proof? Following the money trail has never been a bad idea. What WCAB has now done undercuts wrongful UR especially by companies known to specialize in wrongful UR by getting UR doctors who aren't licensed in the states in which they provide review or whose specialties are so far removed from the clinical challenge at hand as to make them, or that ought to  make them, irrelevant and disqualifiable on that basis alone.
Here's how UR decisions can be successfully challenged:
(a) you object because you have reason to believe that the UR doctor did not get all the relevant information from the adjuster,
(b) you  object because while you believe the adjuster submitted your information the UR doctor didn't properly review it, and
 (c) for either or both of these reasons you  believe a material breach has occurred. Your problem as a doctor taking care of patients will be how to complain effectively. If the organizations to which you pay dues are not allowed to represent you in terms of denied claims either collectively or on an individual basis, you'll be dependent on the injured worker's lawyer or your own efforts.

Not only that: take notice that SCIF is part of the WCAB decision. To our knowledge, SCIF uses only California-licensed doctors for its own UR. That means that SCIF's UR doctors are subject to the medical board in California whereas non-California licensed doctors favored by some other companies need not worry about anybody's medical board (they're not licensed in California and the medical board of the state in which they're licensed doesn't have jurisdiction in California).

Given the changes introduced by the WCAB decision in "Dubon" the PTP has a better chance of getting a case denied by UR and out of the claws of Maximus and into the hands of WCAB which will allow injured workers' cases to be heard by judges. Given Maximus' record to date, this change is a decided improvement.  It is for these reasons that we believe the case is "landmark." We'll watch with keen interest how doctors use this opening. 

Friday, February 28, 2014

WHEN UTILIZATION REVIEW DECISIONS ARE INVALID: Jose Dubon v World Restoration & SCIF "en banc" decsion

UTILIZATION REVIEW (UR) DECISIONS ARE NOW INVALID IF IT IS SHOWN THAT THE UR DECISION WAS "UNTIMELY" or suffers from material (underlining added) procedural defects "that undermine the integrity of the UR decision." This WCAB decision is "en banc" and also states that "minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination." 

This statement is derived from page two of the Workers Compensation Appeals Board (WCAB) "en banc" decision  for the State of California in Jose Dubon vs World Restoration and State Compensation Insurance Fund (SCIF) filed at San Francisco on 2/27/14.

This "en banc" decision also states that the "issue of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB."

Of keen interest is the following additional conclusion by the WCAB: "If a defendant's UR is  found invalid, the issue of medical necessity is not subject to IMR (underlining added) but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required."

Finally, WCAB also states that when UR is provided in a timely and valid manner  the issue of medical necessity shall be resolved through  the IMR process if requested by the employee (editor's note: it is the employee who must make the actual request).


This decision has major importance for injured workers and their PTPs (primary treating physicians). For injured workers unfairly treated by  the system, this decision is a decided victory; however, there are caveats, e.g., it will not always be easy to decide when wrongful steps reflect  "minor technical or immaterial defects" or "material procedural defects."

Editor's comment: The Achilles' heel in the process is UR where many of the participants are not licensed in California and are not subject to the jurisdiction of this state's medical board or even to the jurisdiction of their own state medical board since the latter board does not have jurisdiction in California. These UR decisions may often be careless in part because they're not subject to public policy review by any state medical board.


Jose Dubon vs World Restoration and State Compensation Insurance Fund, Case Nos. ADJ 4274323 (ANA 0387677) and ADJ 1601669 (ANA 0388466).

Thursday, February 27, 2014



The WCRI said that the new fee schedule could change utilization patterns because it would increase pay to primary care providers. In the same breath WCRI admitted that "the institute does not expect that to be the case in California." The workcompcentral story by Greg Jones, 2014-02-21, stated that "a 2012 WCRI study  concluded that prices paid for office visits in California were 30% below the median of the 25 states that were reviewed, with only North Carolina and New York paying less."

By eliminating independent payment for reports under 99080 and by eliminating independent payment for review of boxes and crates of medical records under 99358, harm has been done that cannot be repaired by raising an office fee by $8. THAT is what was done in 2007 in California when office visits for CPT 99213 were raised from $45 to $53. The new codes under the RBRVS make similar smidgens of adjustment. THAT may be enough to fool WCRI, but it won't fool even the most junior accountant or office manager in any medical or surgical office.

The workcompcentral story by Greg Jones said that "there are some who think that California's payment rules prohibiting payment for record review ... will impede the ability of injured workers to receive treatment." It is then noted that "Medicare doesn't reimburse record review." That's because "The Centers for Medicare and Medicaid Services considers the cost of reviewing records to be bundled with the office visit payment." What utter and complete nonsense! Now that that miserly process has been shoved into Workers Comp, it is still somehow expected that after an hour or so with a patient another few or several hours will be devoted gratis to review of records. The treating doctor will be obliged to spend less time with the patient to allow time for review of records. In most cases, that adjustment will not suffice.


"New Fee Schedule Could Improve Access, WCRI Says," workcompcentral.com, 2014-02-21.

"CWCI and WCIRB: SB 863 lowered surgical center payments in California," Insurance Journal, 2014-02-26  (this article points out that facility fees were brought down by 26% and that procedure fees were brought down by 28%. An argument for the WCRI position is that if these centers are still in business despite across-the-board fee reductions then the fee reductions are viable despite the squawks of providers)

Saturday, February 22, 2014


"The best decision I ever made was coming to the USA for advanced training. The worst mistake I ever made was deciding to stay."

So sayeth a respected physician, a department chairman in his specialty, whose name is being withheld since he didn't give us permission to use it. The point is that this doctor's doctor expected to spend his life caring for people, healing the sick, the force behind the profession for so many neophytes in medicine. They did not expect to become nursemaids to insurance companies or to the Affordable Care Act.  But that has become their fate because taking care of patients, actually comforting them, has taken second place to the requirements of paperwork without which neither doctor nor hospital can be paid. Today after  interviewing  a bevy of doctors who spent about an hour each on computerized hospital discharge orders (it used to take 10 minutes if you wrote legibly) it became clear how disillusioned they were.

In our previous column we described how the internists found a way to mega-wealth by opting out of clinical practice and opting into the rarified world of industrialized and corporate billing ($800,000 for the board chair according to that year's IRS 990 form). But here's the other side of that coin: according to Kathy Kristof's report in MONEYWATCH,  internists see one patient every 30 minutes, put in 54 hours per week, but waste 23 percent of their time doing paperwork for insurance companies. Take home pay is around $185,000 (about a half-million less than the board chair's 800 grand). The lesson is learned: income has shifted away from clinical medicine and patient care and towards control of capital just as in business.

The new motto is "profits before patients." Keep that in mind as your doctor rushes out the door from your clinical visit. You are important, yes, but the paper trail is crucial. That's where the money is. By the way, Kristof's article is entitled "$ 1 million mistake: Becoming a doctor."


$1 million mistake: Becoming a doctor, MONEYWATCH, by Kathy Kristof, 9/10/13 (my editorial comment-- insurance companies are increasingly forcing hospitals and their doctors to process patients as though they were produce, get 'em in,et 'em out, and bill 'em quickly)

Obamacare enrollees hit snags at doctor's offices, LOS ANGELES TIMES, by Chad Terhune, 2/04/14 ("people are having trouble finding doctors")

LifeForSale.com,  documentary movie, Evelyn Li, MD, Medical Consultant ("Life For Sale explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view" -- RLW, Editor, www.politicsofhealthcare.com)

Late addition to post, 2/24/2014: "Doctors, insurers face off over pay," SAN JOSE MERCURY NEWS, by Tracy Seipel, 2/14/14,  ("... insurers are often caving in to the doctors ... medical costs are the largest component of a health insurance premium ..."  What this otherwise well researched story doesn't tell is that physicians' share of the health care policy premium is from 17 to 18% and that the insurers get the last word in the 'face off' when they use Utilization Review to deny specialty services, e.g., consultations, or refusing to cover physical therapy or to approve expensive diagnostic studies)


Wednesday, February 12, 2014

How Physicians Eat their Young

"Dear Colleague," begins the 5 February 2014 issue of the American College of Physicians newsletter just before it tells the recipient that "our records indicate that you earned your ABIM certification prior to 1990 and therefore hold a time-unlimited certificate." The newsletter then reminds internists in this category that they're sometimes  referred to as "grandfathered" because they don't have to recertify every ten years. Next comes the financially self-serving bombshell with the newsletter's announcements of the "ABIM Maintenance of Certification Changes" and the disclosure that "as of March 31, 2014, ABIM will begin reporting whether or not board-certified internists (including those with time-unlimited certification) are meeting 'Meeting MOC Requirements.' "

In other words, starting on 3/31/14 some internists will be more equal than others (see George Orwell's 1984).

The hammer falls on the next page where the newsletter tells its readers that "If you do not complete the ABIM MOC program requirements, you  will be reported as 'Certified, not Meeting MOC Requirements.' You will NOT be reported as "Not Certified" for failing to meet MOC requirements." Internists who don't measure up can count their lucky stars for ACP's largesse and also for the advice of its lawyers about what ACP needed to do to avoid individual and class action lawsuits.

This article from ACP does not disclose costs to prospective participants but it does mention that passing the MOC exam by 12/31/23 "is in addition to continuing to meeting the point requirements of the MOC program (including the two- and five-year milestones."

The first comment we've received by one of the board-certified internists with a time-unlimited certificate is this wry remark : "So ... they are going to allow those of us that do not have to recertify to continue to be listed as certified but will list us in a way that sounds LESS CERTIFIED than those that pay them (underlining added)."

We looked up some of the information that we think all physicians should be interested in, boarded or not, recertified or not. We relied on IRS Form 990, a public document few physicians ever see.

As of 2011, total assets of the American Board of Internal Medicine were $57,586,843. Internists should ask themselves why ABIM needs total assets of nearly $60 million. ABIM's Chairman of the Board's pay package was about $800,000 -- not bad, eh?  Recertification costs for an allergist were $2,700 while MOC costs for allergists were $2,850. Why shouldn't ACP want to get in on the action if there's a ready contingent eager to pay?

In fact, the door is open, not so much for complainants, but for competitors who can identify a possible need and a probable payer (the latter is the crucial element!). It's part of physicians' flight or fight response from the practice of medicine, unfortunately, with the focus on flight.


Journal  of American Physicians and Dentists, V. 16, #2, Summer, 2011, "Board Certification -- a Malignant Growth," Dubravic, Martin, MD

www.politicsofhealthcare.com, Saturday, 7/21/12, "Money and Medicine," Weinmann, Robert, MD

Journal of American Physicians and Dentists, V. 18, # 3, Fall, 2013, "Maintenance of Certification (MOC): the Elite Agenda for  Medicine," Christman, Kenneth, MD ("the elite medical establishment correctly foresaw that there was a huge treasure in the medical certification business")


Thursday, January 30, 2014


While this  report is aimed at doctors who are asked to do consultations for injured workers, its comments should be of interest to attorneys on both sides, insurance companies, adjusters, and injured workers. Most of the consultants who interview and examine  injured workers know by  now that Dr. Das, speaking for the administration at the workers comp hearing in Oakland earlier this month, told the audience that the doctors who do consultations should be "advocates" for their patients and should prepare their consultation reports free of charge. While well meaning, the remarks showed a lack of knowledge about how the system works. To begin with, consultations may also be requested by insurance companies, defense attorneys,  and adjusters, not just by injured workers, applicants, and their lawyers. Das' remarks would put the defense consultant in the position of  "advocating" for the insurance companies. In fact,, the consultant is supposed to provide an expert opinion as part of a search for truth. The consultant is  not supposed to "advocate" for anything but the truth as it is believed by the consultant.

As to the free-of-charge remark, Dr. Das didn't acknowledge that the transcription fee for these reports is often in excess of one hundred dollars. Providing such reports free-of-charge amounts to a subsidy for the insurance companies which works against injured workers' interests. More to the point, medical offices would find that shelling out a hundred bucks to provide "free" reports is the  straw that breaks the camel's back. The answer would be to stop doing consultations.  

Here's how the money part worked under the OMFS or Official Medical Fee Schedule with reference to consultations requiring review of records which would be billed under  Code 99358, now deleted as a billable code since January 1st.

99358  is, or was, the code number used to identify review of records, as in prolonged E & M services before and/or after patient care. Its standard reimbursement was $33.80 per unit. But the consultant would not be paid this amount because the insurance company would deduct $2.54 for what it called a "network" reduction, in other words, a payback to the MPN or Medical Provider Network which retained the consultant in the first place. Now that the code has been rescinded, the entire reimbursement to the consultant under 99358 has also been rescinded. Review of records may now enter a dark age of reduced enthusiasm. 

Readers should ask the workers comp division of the Department of Industrial Relations to provide transcripts of Dr. Das' remarks to determine whether or not her remarks were accurately presented in this column. Doctor Das is Medical Director of the California Division of Workers Compensation.