One of the big controversies that has surrounded utilization review (UR), and now independent medical review (IMR) is whether the physicians conducting these reviews were engaged in the "practice of medicine" and thus subject to review, and possible discipline, from the medical board in the state where the case originates.
At least in California, the Medical Board has recently opined that UR and by extension IMR is the practice of medicine subject to review by the board.
The California Medical Board has been under review by the legislature recently on allegations of lax enforcement against physicians.
As part of the review legislators specifically asked the board whether it felt it had powers over UR and IMR physicians.
As a consequence of a treating doctor's complaint to Assemblyman Henry Perea, D-Fresno, the legislator initiated an inquiry into the board's position on the issue.
After informal discussion failed, Perea sent a letter to Dr. Sharon Levine, president of the Medical Board at the time, asking whether the board considers UR the practice of medicine and how it arrived at its conclusion that it has no oversight of UR doctors.
The letter in addition asked whether contracts with insurance carriers, specifically in this case the State Compensation Insurance Fund's (State Fund) letter to its medical provider network physicians (MPN) requiring physicians to agree not to prescribe more than a 60-day supply of compound drugs or opioids without prior approval as a condition of enrolling in its network.
Medical board staff counsel issued an internal memo opining that historically the board did not investigate complaints that are “not based upon an attempt to leverage the outcome of a UR treatment decision or compensation claim, but rather to ascertain whether the standard of care is being followed.” The April 10 memo says the board classifies such complaints as “non-jurisdictional.”
The memo also details how the Labor Code trumps other law and that the Workers’ Compensation Appeals Board “has exclusive jurisdiction over any controversy relating to or arising out of the medical treatment of an injured employee.”
The Medical Board's response to Perea was that it considers utilization review to be practicing medicine and also states that it will “not automatically deem UR complaints non-jurisdictional” and that “a physician is not insulated from potential discipline from the board simply because he or she is under contract to a (workers’ compensation) insurer, private or otherwise.”
There is renewed interest in requiring UR and IMR physicians to be licensed in the state as a consequence because then the Medical Board would then have disciplinary jurisdiction over such physicians.
In 2011, Gov. Jerry Brown vetoed AB 584, which would have required work comp UR physicians to be licensed by the Medical Board of California.
This year, Sen. Jim Beall, D-Campbell, introduced SB 626, which included provisions requiring all doctors doing utilization review and independent medical review be licensed in California. Beall pulled his bill in April and plans to pursue it again in 2014.
But in the meantime, while the Medical Board undergoes its review, Sen. Curren D. Price, D-Los Angeles, who is chairman of the Senate Business, Professions and Economic Development Committee, has filed SB 304, a bill that would transfer medical board investigators to the state Department of Justice and give the department the authority to investigate and discipline doctors.
Price has been critical of the Medical Board's investigation, enforcement and discipline record.
The question is whether the Medical Board's current position, that it will investigate complaints that a utilization-review physician has fallen short of established standards of care, something it has previously not done, is in response only to attacks on its survival, or because the board truly feels it has a duty to the public to do so.
Either way, the board is in a tough position. It is basically admitting ipsa loquitur to a failure in the recognition of its duties in the past.
Sometimes workers' compensation drama occurs outside the direct workers' compensation world but can have far reaching impact. How the Medical Board review drama plays out will steer how the industry conducts UR and IMR going forward.
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