Some teaching hospitals have been pushing for the U.S. healthcare reform bills to include an expansion of monies to fund as many as 15% more doctor residency programs.

Is America underserved with medical doctors? What kinds of doctors do we need? Will more doctors fuel more demand for procedures and services, adding to the overall expense of our national healthcare system?

An answer to this question must start with an acknowledgement that some rural areas and some parts of urban areas are woefully underserved.

And most experts believe that we need more primary care doctors. Those doctors are in short supply, as new medical graduates tend to seek higher paying specialty positions. Those medical specialties are procedure driven, generating higher incomes.

In the California workers' comp world, medical treatment costs are a critical cost driver of system costs. Some might argue that we'd be better off to have more generalists treating California workers. In effect we already have many primary care doctors who practice "occupational medicine" in various industrial clinics. I'm not aware of any studies comparing the costs and outcomes of "occ med" treatments versus specialist treatments in California workers comp. Maybe there is such a study, but if not it would be interesting to see one.

Proponents of "occ med" believe that its good to have a gatekeeper who can provide needed care without the incentive to do lots of procedures or unnecessary tests.

But in some comp cases occ med doctors are slow to investigate conditions. Delaying ordering an MRI which eventually reveals a herniated disc requiring surgery is a delay which can have drastic economic impact on the worker.

The comp system aside, it's clear we need more primary care docs in the system overall. But is expanding residency programs the answer?

In a New York Times Op-ed piece "Doctors No One Needs" Shannon Brownlee and David Goodman argue that expanding doctor residency programs is not the answer:
http://www.nytimes.com/2009/12/23/opini ... ee.html?em

Stay tuned for my next post, commentary on the 2009 CHSWC report on Californa workers comp.

Julius Young
www.boxerlaw.com

Political junkies love ads that highlight the machinations of politicians who reverse field.

You know, the " I was against it before I was for it before I decided to oppose it" variety.

Sometimes the politician has truly seen the light in a thoughtful way. But sometimes naked hypocrisy is exposed.

As a lawyer I savor watching courts reverse field. While it can be sparked by a change in the political complexion of the court, more often it's an exercise of intellectual integrity.

So it is in Cervantes v. El Aquila Food Products Inc, an en banc decision of the California Workers' Compensation Appeals Board (2009). A link to the decision can be found below.

At issue is the "spinal surgery second opinion" procedure of California Labor Code 4062(b). That section is part of the 2004 comp reforms.

The drafting of the 2004 was not uniformly stellar, and procedures under the 04 reforms have been the subject of much appellate litigation.

The WCAB en banc decision in Cervantes reverses field, rejecting procedural interpretations set forth in an earlier significant panel decision, Deanna Brasher vs. Nationwide Studio Fund and SCIF (2006).

The WCAB notes in Cervantes that when a treating doctor requests spinal surgery in writing the employer must:
-undertake utilization review (as noted by the California Supreme Court in the Sandhagen case)
-authorize the surgery if UR approves the surgery
-or authorize the surgery if UR is not done in a timely fashion

But what happens if a timely utilization review is done and UR disapproves of the surgery? Can the employer stand on its UR denial?
Must the injured worker then pick up the ball, requesting a spinal second opinion?

No.

Even if a timely UR review has refused to certify the requested spinal surgery, the employer/insurer must request a spinal second opinion under 4062(b).

Given the utilization review timeframe and the 10 day objection timeframe under 4062(b), the employer/insurer essentially must do a concurrent 4062(b) objection within the time it is doing its UR review.

The en banc opinion in Cervantes notes the following:
"We are cognizant that section 4610(g)(5) allows the deadlines of section 4610(g0(1) to be exceeded in some circumstances. Nevertheless, for the reasons above, we construe the statutory scheme to mean that, in spinal surgery cases only, the UR determination always must be made within 10 days of receipt of the treating physician's report, so that the defendant may still timely object under section 4062(b) if there is a UR denial."

In the Cervantes case, a timely UR review rejected the spinal surgery request. But Mr. Cervantes' employer failed to initiate a spinal surgery second opinion objection. The Brasher case had held that it was the worker's responsibility to file a timely request for a second spinal opinion.

That's no longer required of workers.

Employers will probably be unhappy with the strict time frames, but the WCAB has done an admirable job in reconciling somewhat complicated and overlapping procedural provisions.

Adjusters who want to preserve their denial options will need to track the time frames carefully to preserve their objections.

But a significant side issue in the case was the issue of whether the surgical request was properly formatted under California workers' comp regulations. Those regs require that requests for authorization either be on specific forms (including the "PR-2") or, under AD Rule 9792.6(o)
"If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization". More on that in another post.

Cervantes is an important decision that will affect many workers who seek spinal surgery. It may be appealed, but if so I predict that it will be upheld.

Here's the decision in pdf format:
http://www.dir.ca.gov/wcab/EnBancdecisi ... cedures%20(11-19-09%20final%20draft).pdf

Stay tuned.

Julius Young
www.boxerlaw.com



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The Governor has signed AB 361.

AB 361, carried by Bonnie Lowenthal (D-Long Beach), prohibits an employer from refusing to pay for medical treatment if the employer authorized it before the service was rendered. Authorized treatments must be paid, even if the treater is not an MPN member. An employer can, however, withdraw or revise an authorization for treatments not yet provided.

Here's a link to the section:
http://leginfo.ca.gov/pub/09-10/bill/as ... rolled.pdf

The bill was introduced at the request of the California Chiropractic Association, whose member had experienced problems with refusal to pay for services that were authorized.

This caps the workers' comp bills for this session. Scroll down to read my posts on the bills the Governor has signed: Taneka's law, the predesignation bill, a bill to expand 4850 coverage, and a bill to require insurance coverage be posted online.

Stay tuned.

Julius Young
www.boxerlaw.com

In coming months we'll probably be seeing attempts to control growth of treatment costs in California's workers comp system.

Some of this may be on the regulatory front. An agenda item for the October 22 CHSWC meeting at the auditorium at Oakland's State Building is "Regulatory Actions That Could Reduce Unnecessary Medical Expenses Under California's Workers' Compensation Program".

And various stakeholder groups may be meeting to consider legislative fixes to the problem of escalating medical costs. Applicant attorneys
and medical providers who pooh-pooh the problem do so at their own risk. It's a theme that's not going away.

Within the last month, the CWCI (the industry-sponsored California Workers Compensation Institute) has posted studies on medical and pharmaceutical costs in the system:
http://www.cwci.org/research.html

On the national level, controlling escalating costs is a major goal of the Obama reform, of course. There's great concern that the current Baucus committee plan may do little to "bend the cost curve". Some are criticizing it as a big, sloppy kiss for Pharma and the health insurers.
There's concern among some on the left that it does not bring healthcare costs down to the affordable level for the middle class:
http://campaignsilo.firedoglake.com/200 ... -is-awful/

Is there a right to "affordable housing" and "affordable healthcare"?
Maybe not, but our current system leaves too many either uninsured or woefully underinsured.

It's an issue I'll be covering as the national debate intensifies.

Meanwhile, just how are we doing? How does California rank in various measures of healthcare?

Today I came across a study that was just released by The Commonwealth Fund, comparing healthcare in various states by a number of key measure:
http://www.commonwealthfund.org/Content ... ecard.aspx

The Commonwealth Study is interactive, so you can compare the Golden State with rankings of other states.

California's populace scores well on behavioral health issues (such as non-smoking and exercise etc). But the state scores poorly in many
areas such as access to care. These scores will undoubtedly get worse in the short run as state and county budget woes force closure of community health clinics and squeeze health funding generally. California has a high number of illegal immigrants in comparison to most states, adding an additional burden on the state's health resources since a relatively high number of illegal immigrants are uninsured. That in itself is a hot button issue beyond the scope of this blog,

For those of us in the comp system, it's no big surprise to see that California lags behind many states in various indicators. Comp benefits here are lower in many measures, particularly for compensating permanently disabled workers.

As the federal health debate comes to a conclusion and the 2009 state budget consequences take hold, it's worth considering how we're doing. It's clear that we could be doing a whole lot better. The question is how we can get to where we need to be, given the challenges we face.

Stay tuned.

Julius Young
www.boxerlaw.com

A bill to extend the right to predesignate a physician is headed to Governor Schwarzenegger's desk.

The bill SB 186, carried by State Senator Mark DeSaulnier, would extend the right to predesignate, which otherwise sunsets at the end of 2009.
A copy of the bill can be seen here:
http://www.leginfo.ca.gov/pub/09-10/bil ... rolled.pdf

Among the many losses incurred by working people in the 2004 California workers' comp reforms was the eventual loss of the right to predesignate.

Predesignation has been very popular with many union members.

Workers whose employer adopted an MPN (medical provider network) no longer have "free choice" to pick their own doctor. The MPN regulations do contain many specific requirements which, if not observed, may allow workers to circumvent the MPN.

But workers who have a valid predesignation on file are not subject to the MPNs in the event of an injury.

Unless there is a compromise that trades signature on this bill for something else Schwarzenegger wants, it's unlikely that this bill will be signed.

Workers who meet the criteria (i.e. the employer must offer group health coverage) still have several months to predesignate.
A predesignation form can be found here:
http://www.dir.ca.gov/dwc/forms/dwcform_9783.pdf

Stay tuned.

Julius Young
www.boxerlaw.com