One of the most controversial elements of the California Independent Medical Review (IMR) process is that the identity of the reviewer is to remain confidential and that there is no right of appeal.
Texas has had IMR for some time, though it differs from California in that in Texas IMR decisions can be appealed. In Texas this process is known as independent review organization evaluations, or IRO. But like California, reviewers remain anonymous.
Texas Rep. Bill Zedler, R-Arlington, has filed House Bill 287 for the 2013 legislative session, which convenes Jan. 8. HB 287 would amend the law so that the identities of IRO physicians is not confidential.
HB 287 would amend Texas Insurance Code Section 4202.009 to require that following the completion of a review determination, a party that sought the review is entitled, upon a written request to the IRO, to the name and professional qualifications of any physician or other individual health care provider who made the review determination.
The bill also would amend Insurance Code Sec. 1305.355 by adding Subsection (h) to provide that after the completion of an independent review, a party to the dispute is entitled, upon written request, to the name and professional qualifications of any doctor or other health care practitioner used to perform the review.
The argument for eliminating the confidentiality of IRO physicians is to increase openness in the IRO process, including ensuring that there are no conflicts of interest on the part of IRO reviewers and that reviewers are not unfairly ruling for or against patients.
"We should be able to find out if a doctor is never ruling in favor of the patient," Zedler told WorkCompCentral.
But is it really in the interests of the injured worker patients to discover the identity of the physicians that are denying medical care?
Or is it really in the best interests of the physician whose treatment recommendation or protocol is being challenged? For after all, if a prescribing physician's treatment is denied then that physician doesn't get paid, and may have further protection against a malpractice incident.
In addition to HB 287, Zedler has also filed HB 286 relating to the investigation and resolution of complaints filed against physicians. HB 286 requires the Texas Medical Board (TMB) to reveal the identity and credentials of any expert physician that will be relied upon at a TMB hearing. HB 286 was filed 12/14/2012.
Zedler has also filed HB 305 relating to the release of complaint information by the TMB to the legislature. The bill amends the Occupations Code to provide that a single member of the Texas Legislature may request and receive all information regarding a complaint against a physician to aid in a legitimate legislative inquiry. The Occupations Code currently provides that TMB complaint information can be released to a legislative committee created under Subchapter B, Chapter 301, Government Code. The member of the Texas Legislature requesting the information would be required to sign a non-disclosure agreement.
The Texas Tribune has questioned Zedler's past relationship with doctors and it seems to me that in reality Zedler has the interests of physicians that he is seeking to protect in mind, not the interests of workers.
In a Texas Tribune article dated April 5, 2011, it states, "Zedler's critics suggest he may have another motive: Of the five physicians Zedler obtained records on from the Medical Board in 2008, at least two were campaign contributors who gave him a combined $25,000. The doctors, who weren’t his constituents, had been accused of “egregious” treatment violations such as injecting natural gas and jet fuel into patients to diagnose chemical sensitivities."
Another Texas Tribune article, dated September 16, 2010, questioned Zedler's access to confidential TMB and Texas Department of Insurance (TDI) Division of Workers' Compensation (DWC) information to help donor physicians who were the subject of TMB and DWC investigations:
"Of the five physicians whose cases Zedler took it upon himself to review, at least two were campaign contributors, campaign finance records show. In a phone interview, Zedler recalled requesting information about Houston anesthesiologist Vladimir Redko and Dallas thoracic surgeon Dr. William Rea, neither of whom were constituents. According to the board's disciplinary orders, both were ultimately sanctioned for 'egregious' treatment violations ranging from performing invasive procedures to injecting natural gas and jet fuel into the patients in order to diagnose chemical sensitivities. Records show that the doctors gave Zedler a combined total of $25,000 in the past half-decade and that some contributions were made just weeks before Zedler requested their case files."
"Zedler testified in April 2009 that he used the tactic of requesting confidential records to get the board to drop at least one case. A letter from Zedler, released by the Texas Medical Board through the Public Information Act, shows he asked for the 'immediate appeal' of one doctor’s sanction (the doctor’s name was redacted). The former executive director of the Texas Medical Board remembers hearing from Zedler frequently. 'He was very active at contacting me about issues he had,' says Dr. Donald Patrick, a neurosurgeon who led the board until 2008. 'Let me just say this: The good legislators called up and asked for information. Legislators that I didn’t regard as good called and tried to influence what we did. I knew the difference.'”
The alleged purpose of removing the confidential nature of IMO/IMR identities is to ensure that there is no conflict of interest.
But in reality it seems the conflict of interest is in reverse; the actual disclosure of that information is not for patients to know who is making decisions on their treatment, but to provide treating physicians information that would assist their professional lives.
Some Californians are actively in the process of challenging the new law's, SB 863, IMR confidentiality provisions. Texas Rep. Zedler's actions and journaled history should be reviewed by any judge or legislator brought the challenge to properly question the motives of such appeal.
And Texas legislators should also pay attention lest they unwittingly increase the risk to patients being treated by physicians who fail the Hippocratic Oath.