Western Occupational & Environmental Medical Association
Leading Occupational & Environmental Medicine

WOEMA Legislative Affairs Updates – 2008 and 2009

2009  2008

WOEMA Legislative Year in Review 2009
by Don Schinske, WOEMA Lobbyist

The chilly economy served to limit policymaking in 2009 as 1) many state legislatures, including California’s and others in the West, focused much their efforts on how to cut programs in the face in the huge Budget shortfalls, and 2) policymakers were reluctant to entertain proposals that might have any dampening effect on business and economic activity.

Of all the WOEMA states, Hawaii’s legislative year was the most tumultuous for Workers’ Compensation. In face of a plummet in rates – premiums have fallen by 65 percent over the past five years – a sweeping package of reforms was proposed this year, and again stalled, with most the bills pushed ahead to 2010. Hawaii legislators did override the Governor’s veto of one bill – SB695 SD1 HD 1 CD – which requires employers to continue medical services to injured worker despite disputes over whether treatment should continue, until the Director of Labor and Industrial Relations makes a determination.

In California, only bits of Workers Compensation proposals gained the Governor’s signature. These bills included:

AB 1093 (Yamada), which prohibits denial of benefits in cases where a third party injures or kills an employee based solely on the third party’s beliefs relating to the employees race, religion, color, sex, age, or other “immutable characteristic.” This bill narrowly addresses an instance in which a stranger entered a place of work and killed an employee strictly for racist motives, and employee was denied Workers Comp death benefits. WOEMA opposed a related, more-expansive bill – SB 145 (De Saulnier) – that would have disallowed the age, race, religion, etc. from being considered in apportionment and benefits decisions. WOEMA’s position was that some conditions resulting in apportionable permanent impairment are inherently directly related to age, e.g., degenerative musculoskeletal processes, and thus should not be excluded from apportionment considerations.

AB 186 (De Saulnier), which WOEMA supported, repeals the 2009 sunset date for allowing employees to predesignate a personal physician.

Otherwise, WOEMA opposed two bills that would have extended presumptions to specific types of employees. AB 586 (Huber) would have extended the presumption for hernia, blood-borne diseases, and other conditions to UC and CSU police, while AB 664 (Skinner) would have extended the presumption for back injuries and MRSA to all hospital employees. In both cases, WOEMA argued that the extension lacked a scientific basis. Both bills stalled partway through the legislative process, primarily owing to cost concerns.

WOEMA supported AB 933 (Fong), a bill to require that UR physicians be licensed in California Again, concerns about cost and familiarity with California-specific issues slowed the bill’s progress, and AB 933 was turned into a “two-year” that will be picked up again in the spring.

In the regulatory arena, the Division of Workers Compensation, after more than a year of deliberation, adopted the ACOEM elbow chapter into the Medical Treatment Utilization Schedule (MTUS), as well as the ODG-based chapter on chronic pain.

Meanwhile, the Division this fall announced plans to revise the Official Medical Fee Schedule (OMFS). For WOEMA, this has been a long-awaited event. This summer, Legislative Committee Co-Chair Steve Schumann, MD, persuaded the CMA’s Workers Compensation Technical Advisory Committee to approve a WOEMA proposal asking DWC boost in payment for 10 Evaluation and Management codes. Dr. Schumann and lobbyist Don Schinske conveyed this proposal to DWC chief counsel (and then-acting director) Destie Overpeck in September. We approach 2010 with hope that DWC will finally replace the OMFS with an RBRVS-based (non-Medicare) fee schedule that fairly reimburses Primary Treating Physicians for their cognitive services and reporting. WOEMA’s Board of Directors remains committed to participating at the center of discussions on the important area of appropriate payment for physician services.

WOEMA joined in ACOEM’s efforts to promote Occupational Medicine within the federal healthcare reform efforts. In April, Legislative Co-Chair Paul Papanek, MD, successfully moved a set of WOEMA policy planks through ACOEM’s House of Delegates. In addition, WOEMA issued a Legislative Alert to members, as well as its own letters, urging key Congressional Representatives to support OEM provisions in the reform bills, including the creation of specific funding streams for OEM residencies and other provisions elevating workforce and workplace health.

In other activity, Dr. Papanek and others have entered into discussions with Cal/OSHA around the prospect of revising the State’s outdate lead standards for general industry and construction. After discussion with Cal/OSHA officials, WOEMA has agreed to support the departments own initiative to update the standard, rather than submit our own petition. As part of WOEMA’s policymaking efforts in 2010, we will be exploring the best ways to approach the OSHA departments in other states with the same request.


WOEMA Legislative Update- WC Presses Ahead on OMFS Revision
September 28, 2009

California’s Division of Workers Compensation plans to open the formal rulemaking process for revising the Official Medical Fee Schedule early next year with the intent of adopting a new schedule next summer.

In a meeting Sept. 28 with WOEMA President Steve Schumann, MD, and lobbyist Don Schinske, DWC Chief Counsel Destie Overpeck and staff attorney Jackie Schauer explained that the Division hopes to issue a draft proposal soon after the Lewin Group completes one more update of the report it issued last year. That report calculated how various specialties would be affected by a “dollar-neutral” conversion to an RBRVS-based schedule. The new report will recalculate the values based on the most recent CMS updates.

The DWC officials said that while the new schedule will be based on RBRVS, the methodology underlying Medicare, they have not concluded yet on how many conversion factors will be included. Nor have they concluded that the solution be dollar neutral – that is, that any boost in payment for some codes be offset by reductions in others. At issue too is how extensively to change the Medicare “ground rules” regarding how the coding is applied. However, Schauer did suggest that one rule, the “cascading” of payment downward for multiples of surgical procedures, is a possibility for inclusion.

The DWC rulemaking process will include online comment periods and public hearings. The use of the formal process means the Division will not be relying on extensive stakeholder workgroups to reach a consensus prior to issuing a draft proposal. Indeed, the inability of such workgroups to agree on a proposal helped doomed an earlier overhaul six years ago.

WOEMA requested the meeting to ask that DWC consider boosting payment for the 10 basic Evaluation & Management codes, in the event that a full overhaul was not forthcoming. In making our case for the increase, Dr. Schumann cited the increased amount of reporting required of Primary Treating Physicians since the 2004 reforms, as well as the slow but significant drift of primary care physicians and clinics to urgent care and other lines of business. WOEMA’s proposal has been substantially supported by other groups representing PTPs as well as the California Medical Association’s Workers Compensation Technical Advisory Committee.

Chief Counsel Overpeck encouraged WOEMA to identify any cost savings, either in medical services or elsewhere in the system that DWC could consider to help offset potential increases. WOEMA will solicit that input in coming weeks. Members should anticipate an announcement as to how to submit their ideas.

WOEMA Legislative Update
July 13, 2009

California Insurance Commissioner Steve Poizner rejected a request from the Workers’ Compensation Insurance Rating Bureau (WCIRB) to approve a 23.7-percent increase in the pure premium rate.

The WCIRB had asked for the large increase in the advisory rate owing to rising medical costs which, if supported, could have undermined WOEMA’s advocacy for adoption of a new, fairer physician fee schedule.

In his July 1 ruling, Poizner cited the success of self-insurers (such as Safeway) in maintaining control of medical costs, and stated he would not build “avoidable costs” into the benchmark.  He urged the WCIRB to incorporate his recommendations before it next seeks an adjustment.

Among other criticisms, he argued that insurers’ pursuit of the lowest-priced provider networks may be leading to overbilling and over-utilization.  He also questioned the efficacy of utilization review, saying that better communication and closer relationships between providers and carriers may be more cost-effective and that, pointedly, Utilization Review needs some utilization review of itself.

Regarding the Official Medical Fee Schedule specifically, Poizner noted that the OMFS is “not properly update or revised.  There is need for action by DWC to update the fee schedule and evaluate how it can be modified to be fair and effective.”

WOEMA and its allies will use the ruling to aid in our efforts to persuade DWC to proceed with a fee schedule revision.   In light of the bleak economic climate, WOEMA for the time being has been calling for an “interim boost” in payment the 10 basic E& M visit codes, a proposal supported by the CSIMS, COMP and the CMA.

The Insurance Commissioner also recommended that:

  • All insurers should implement pharmacy networks. Such networks, he said, are already permissible.
  • Regulations should be implemented regarding physician dispensing of pharmaceuticals.  Legislation may be necessary to deal with this.
  • Require the prescribing and/or dispensing of generic drug equivalents.
  • Require billing and payment at fee schedule and not below.
  • Regulations for electronic billing and a standard medical bill form need to be implemented.

The full text of Poizner’s order and supporting reports is available.

In the Legislature, the State’s financial crisis has stalled almost all legislation that would require new allocations of funding.  A couple of pieces of legislation are continuing to move through the process, including:

SB 145 (DeSaulnier), a bill to require that Work Comp benefits and apportionment decisions not be based on age, sex, race, and host of other characteristics.  The bill is almost certain to get to the Governor, who vetoed a similar bill last year based on the ambiguities it might create.

SB 186 (DeSaulnier), which would permanently allow the predesignation of a personal physician, is also likely to get to the Governor’s desk.

WOEMA Legislative Update
May 12, 2009

In a year of national healthcare reform, WOEMA successfully persuaded the ACOEM House of Delegates in April to adopt a resolution endorsing the following policies:

  • Universal health coverage for America’s workers
  • A Mechanism for Reimbursing Physicians for Workplace Preventive Services
  • A Mechanism for Financial Support of Occupational Medicine Residency Programs
  • Predictable and Fair Fee Schedules for Occupational Medicine Services, including medical services under Workers’ Compensation
  • Financial Incentives to Physicians for Use of an Electronic Health Record
  • Use of Evidence-Based Guidelines for Occupational Medicine Practice
  • Incentives to patients and other value-based health care benefits for healthy behaviors or lifestyle changes

WOEMA’s goal this spring has been to develop a set of policy planks that will guide our future legislative activity and responses, and which we also aim to inject into the national reform debates.

Legislative Co-Chair Paul Papanek, MD, and lobbyist Don Schinske have been discussing with ACOEM how to best coordinate our advocacy on these issues, as ACOEM pursues its own similar principles with the Congressional authors of healthcare reform legislation.  The immediate goal is to promote a single, coherent set of messages from occupational medicine.  Once the details are worked out, WOEMA members will be asked to directly assist in Congressional lobbying efforts.

Those wishing to see the full text of WOEMA’s Policy Planks or of ACOEM’s Health Reform Action Plan for Prevention can contact Dr. Papanek, Paul.J.Papanek@kp.org, or Don Schinske, dschinske@calcapitol.com

Meanwhile, Legislative Co-Chair Steve Schumann, MD, a member of the California Medical Association’s Workers Compensation Technical Advisory Committee, introduced a WOEMA proposal to that group that we pursue interim boost in reimbursement to 125-percent of Medicare for the 10 main visit codes, 99201-99205 and 99211-99215. For a copy of the proposal, please contact Dr. Schumann at scs211@earthlink.net, or Don at dschinske@calcapitol.com.

Previously, WOEMA had been advocating for a full overhaul of the Official Medical Fee Schedule (OMFS), a position we still support.  However, the more limited goal seems more appropriate given the poor economy, the dire state budget, and a major increase in Work Comp medical costs (which likely owes more to rising costs for utilization review and medical-legal rather than clinical services).

The CMA Work Comp TAC, which includes physicians from many specialties expressed, expressed support for the proposal including the addition of two consultation codes.  Hopefully, with support CMA and other allies, we can press for the interim increase until a full overhaul can be pursued.

One challenge, for the time being, is lack of clear direction at the Division of Workers Compensation.  OMFS issues, the ongoing work on the Medical Treatment Utilization Schedule, and proposed regulations to change the PR-2 reporting form, all seem suspended while top posts at DWC seem in flux.  No replacement has been named yet for Executive Medical Director Anne Searcy, MD, who left in December.  This was followed by the departure of Acting Administrative Director Carrie Nevans in March, for health reasons.

Legislatively and Budget problems have kept most policy proposals fairly modest.  In California, which is chronically at the brink of insolvency, a new double-digit Budget shortfall is destined to swamp all but a few bills.  Current proposals that WOEMA is lobbying in the Capitol include:

SB 145 (DeSaulnier) – WOEMA opposes this bill, would provides “Race, religious creed, color, national origin, age, gender, marital status, sex, sexual orientation, or genetic predisposition” cannot be a factor in apportionment or determination of disability.   Carried by the chair of the Senate Labor and Industrial Relations Committee, the bill pits the sponsoring applicant attorneys against employer groups.  Proponents argue that the mere existence of risk factors should not figure into causation.

SB 186 (DeSaulnier) repeals the sunset date for allowing workers to predesignate a personal physician.  WOEMA supports this bill, which has already moved through the Senate.

AB 664 (Skinner) would extend the presumption to all hospital employees for neck or back impairment, blood-borne infectious disease, or MRSA.  WOEMA opposes.  Bill is in Assembly Appropriations.

AB 933 (Fong) –  This WOEMA-supported bill would require all UR physicians to be licensed in-state.  Bill has cleared the Assembly Insurance Committee.

In addition, WOEMA’s Legislative Committee reviewed several pieces of Workers Compensation reform legislation and approved supporting one of them SB 62/HB1288, which would require that independent medical review be conducted by a physician consented to by both employer and employee.

WOEMA Legislative Update
April 2009

WOEMA’s Legislative Committee this spring is developing a set of policy planks that (with Board approval), WOEMA will work to insert in discussions of broad healthcare reform as well as in specific legislative proposals.  The Committee is drafting planks that propose to improve the healthcare system by incorporating the following:

  • A Mechanism for Reimbursing Physicians for Workplace Preventive Services
  • A Mechanism for Financial Support of Occupational Medicine Residency Programs
  • Predictable and Fair Fee Schedules for Occupational Medicine Services, including medical services under Workers’ Compensation
  • Financial Incentives to Physicians for Use of an Electronic Health Record
  • Use of Evidence-Based Guidelines for Occupational Medicine Practice
  • Incentives to patients and other value-based health care benefits for healthy behaviors or lifestyle changes

WOEMA representatives plan to advocate for these planks at the ACOEM House of Delegates meeting April 24 in San Diego, as part of this year’s American Occupational Health Conference (AOHC).  WOEMA members wishing to review the draft language and make suggestions can contact Legislative Committee Co-Chair Paul Papanek, MD, Paul.J.Papanek@kp.org, or Don Schinske, dschinske@calcapitol.com

We believe 2009 is an important year to promote the role of the Occupational Medicine physician, as momentum builds for federal healthcare reform in the first year of the Obama Administration.  Several key members of Congress who are involved in the federal reform effort represent districts in WOEMA states (including Reps. Pete Stark and Henry Waxman, both of California).  Once the planks are finalized, WOEMA will ask its members to contact their federal representatives and seek their support for the policies.

At the state level, slow economies and Budget constraints seemed to have dampened the number and ambition of legislative proposals this session.  Among WOEMA states, the lone exception is Hawaii, where similar to the last several years, the debate over Workers Comp reform has been a central focus in the Capitol.

Paula Lenny, MD, has compiled the current plate of proposals in Honolulu:

HB403/ SB63/ SB310 –  Temporary Total Disability
Requires an employer to pay temporary Total Disability benefits regardless of whether the employer controverts the rights to benefits. Specifies that the employee’s ability to return to work is to be decided by the employee’s treating physician. Convenes a working group. Effective upon approval for the convening of the working group; 7/10/10 if there is no consensus among the working group.
SB310, a Senate variation, would amend Work Comp law limiting an employer’s ability to terminate benefits, authorizes the recovery of attorney’s fees and costs by the injured employee.

HB1279/ SB695 – Ongoing Medical Treatment
Requires the employer to continue medical services to an injured employee despite disputes over whether treatment should be continued, until the Director of Labor and Industrial Relations decides whether treatment should be continued.

HB1288/ SB62/ SB307- IME by Mutual Consent
Requires IME and permanent impairment rating examinations to be performed by physicians mutually agree upon by employers and employees or appointed by the Director of Labor and Industrial Relations.

SB307, a Senate variation, requires that an independent physician be selected by mutual agreement between injured employee and employer to conduct medical examinations in cases where major and elective surgery, or either, is contemplated or in cases where an employee or employer is dissatisfied with the medical progress.

HB1390 – Medical Fee Schedule
Increases the fee schedule of compensation for medical care in WC cases from a ceiling of 110% to a ceiling of 150% of the Medicare RBRVS system applicable to Hawaii (many codes already at 125-136%).

SB305- Injured Workers Bill of Rights
Enacts the WC injured workers bill of rights as guidelines for handling WC claims
http://www.capitol.hawaii.gov/session2009/Bills/SB305.HTM for full text

HB1363/ SB692 – Workers’ rights, pension benefits
Requires private employers who provide pension plans to their employees to allow an employee who has vested to receive pension payments upon becoming disabled, regardless of age. Allows Director to reopen WC cases after settlement if settlement was obtained by exerting undo influence over any party or as a result of the disability or mental incompetence of the employee.

Notes: Dr. Lenny – In this session, the majority of legislators are considered pro-labor. Insurers are concerned these bills are being “fast-tracked” through committee hearings, to conference and to the Governor so even though she is expected to veto, the vetoes can be overridden before the end of the legislative session. As in previous sessions, not much common ground between stakeholders.

Current legislative proposals in California include:

SB 145 (DeSaulnier) ” Race, religious creed, color, national origin, age, gender, marital status, sex, sexual orientation, or genetic predisposition” cannot be a factor in apportionment or determination of disability.  WOEMA will be meeting the author to request amendments that recognize the role that age and gender can play in causation and therefore apportionment.

SB 156 (Wright) is a bill seemingly aimed at reducing billing fraud.  It would require employers to provide injured workers with a statement of the amounts billed, and amounts paid, for all medical services approved for the worker.

Also, the Legislative Committee is reviewing SB 294 (Negrete McLeod), a scope of practice bill which in its original form would have allowed nurse practitioners to admit patients to hospitals along with other new duties.  The latest version of the bill (see link above) provides for more limited duties.

On California’s regulatory front, a lack of clarity seems to apply at the moment to the Division of Workers’ Compensation plans to revise the Official Medical Fee Schedule, the ongoing review of the Medical Treatment Utilization Schedule (MTUS), and proposed regulations to change the PR-2 reporting form.  No replacement has been named to serve as Executive Medical Director since the departure of Dr. Anne Searcy in December.  And just last week, Acting Administrative Director Carrie Nevans left on unannounced leave.

WOEMA Legislative Update
March 2009

For the moment, California’s ongoing Budget impasse has overwhelmed almost all activity in the State’s Capitol.  February 27 was the last day for legislators to submit new bills for the 2009 session.  While the number of bills will pile up in advance of the deadline, we may see fewer legislative proposals overall this year.  And we would expect to see very few that would require expenditure of new state money.

That noted, several bills have already surfaced that WOEMA’s Legislative Committee will review for positions. These include:

AB 128 (Coto) would extend the cancer presumption for public safety workers who have been terminated.  Under existing law, the presumption is in effect for three months for every year of service, with a limit of five years.  AB 128 would extend that to one year for every year of service, with no maximum limit.

SB 145 (DeSaulnier)  “Race, religious creed, color, national origin, age, gender, marital status, sex, sexual orientation, or genetic predisposition” cannot be a factor in apportionment or determination of disability.

SB 156 (Wright) is a bill seemingly aimed at reducing billing fraud.  It would require employers to provide injured workers with a statement of the amounts billed, and amounts paid, for all medical services approved for the worker.

WOEMA will be monitoring and participating in policymaking in other states as well.  In Arizona, WOEMA representive  Bob Orford, MD, has provided input to the Arizona Medical Association on SCR 1042, a newly proposed amendment to the state constitution that would allow an injured worker to sue an employer for damages within two years of the injury.  Such a provision would seem to undermine the foundation of Workers’ Compensation as a “no fault” system.

In Hawaii, no fewer than 18 Workers Compensation bills have been proposed, representing the latest efforts by labor, insurers, employers, and the medical community to reform the system.  Some of the bills – such as SB 62, which require independent medical review to be done by a physician agreed upon by both employer and employee – would tilt the system in the worker’s direction.

Other bills, such HB 1308 and SB 1063, which exempt the self-employed and owners of limited-liability companies from the system, are supported by the business committee.

WOEMA, which as policy supports fair compensation for physician services within Workers Compensation, will be tracking HB 1390, which would boost the ceiling on reimbursement from 110 percent to 150 percent of Medicare.

There’s also HB 314, a bill of perhaps singular relevance to Hawaii, that would require the State to develop rules on claims related to “vog,” the sulfur dioxide-laden haze emitted by volcanoes. WOEMA’s Hawaii representative, Paula Lenny, MD, notes that higher vog levels boost the number of ER visits for asthma and COPD.

Once the bill-introduction deadlines pass in the various states, WOEMA’s Legislative Committee will prioritize bills for active lobbying and continue reporting on all bills of interest.  Members who hear of legislative or regulatory developments in their own states should contact the Legislative Committee Co-Chairs Steve Schumann, MD and Paul Papanek, MD, as well as WOEMA lobbyist Don Schinske,dschinske@calcapitol.com

WOEMA Legislative Update
February 2009

Already, with California’s Legislature hopelessly stalemated in addressing its largest budget, WOEMA’s Legislative Committee and staff have been at work in a number of areas.

I.  Medical Treatment Utilization Schedule (MTUS) – In December, WOEMA commented on the latest draft DWC regulations to incorporate the ODG-based chronic pain chapter into the MTUS.  Clearly, after 18 months of work, DWC is showing no inclination to use ACOEM’s chronic pain chapter instead.  However, we urged that DWC, in going forward, should 1) follow the ACOEM strength of evidence rating methodology (as already contained in regulation) to evaluate the merits of proposed chapters, 2) add language to the regulations about what, exactly, is supposed to happen when a treating physician and a UR physician cite different guidelines, and 3) when the Medical Evidence Evaluation Advisory Committee (MEEAC) deliberates over chapters from various sources, that it invite the authors of the chapters a chance to make a formal presentation and answer questions.

Early in January, ACOEM expressed their concerns to us about the transparency of  DWC’s guidelines process and the uncertainty around the status of ACOEM’s more recent low-back chapter.  ACOEM asked our help in setting up meetings with key legislators in Sacramento for ACOEM lobbyist Pat O’Connor.  Before the Capitol meetings, Dr. Schumann and Schinske hosted a conference call that included Bernyce Peplowski, DO, the Occ Med representative to the MEEAC, O’Connor, and ACOEM Business Manager Chris Wolkfiel. On January 15, Schinske and O’Connor met with legislators and staff in the Capitol, including Senator Mark DeSaulnier (D-Concord), new chair of the Senate Labor and Industrial Relations Committee; staff of Senator Mark Wyland (R- Carlsbad), the committee’s new vice chair; staff of Assembly Insurance Committee Chair Joe Coto (D- San Jose), and staff for Senate Minority Leader Dave Cogdill (R- Modesto).

At the meetings, O’Connor and Schinske explained the DWC guidelines adoption process, the merits of ACOEM’s process for developing guidelines, and offered to serve as resource on MTUS when related bills came before their committees.

II. Official Medical Fee Schedule (OMFS) – Following the departure of Medical Director Anne Searcy, MD, the process of an OMFS overhaul will likely slow until there is a new medical director.  Even so, a new schedule – particularly one that raises the cost of medical services in the Work Comp system – will be a challenging goal in the current deep recession.  We have lowered our expectations for a total make-over of the schedule, and will be pressing instead for a boost in the reimbursement for the 10 Evaluation and Management (E & M) visit codes, and perhaps a few others.

To help build our case, WOEMA conducted a practice survey for its California members who work in the Workers Compensation program.  Response was good, with 49 physicians participating.  (Results attached).  We will compile the results into a report that we can send to members, to DWC, and our allied physician organizations, who have been awaiting the polls’ results.

III.  Legislation – The legislatures of the various states have all just started for their sessions, and so the Legislative Committee has yet to review bills for policy positions this year.  Owing to California’s financial crisis, there are likely to be very few, if any, bills advanced this year that have costs attached.  Paula Lenny, MD, has told the Committee that she and other physicians in Hawaii may try to work together on some Workers Compensation proposals, following several years of pitched battle over system reform.  The Committee will be formally reviewing the new bills in all WOEMA states on its next Legislative call, which is tentatively set for mid-March.  Later in the spring, Schinske will be speaking on legislative and regulatory developments in Workers Compensation at an Occ Med conference at UC Davis Medical Center.

IV. WOEMA Organizational Policy Development – The Legislative Committee will be developing organizational policy on various issues, with the intent that WOEMA promote those policies in the context on healthcare reform and the policymaking arena generally.  This will allow WOEMA to sense opportunities to engage earlier and more proactively in certain types of policymaking, since we would not be creating policy only in reaction to specific proposals. Legislative Co-Chairs Dr. Schumann and Dr. Papanek have identified several areas on which the Legislative Committee will recommend formal policy.  These include:

  1. Scope of physician care – would clarify that we are talking about the typical scope of practice issues, historically addressed by the House of Medicine, emphasizing that when laws or regs call for a “treating physician” we are talking about MDs and DOs
  2. Primacy of the OEM physician in issues of OEM – point out areas where the OccDoc is the best doc:  disability management, fitness for duty including FMCSA evals, workplace preventive services, and others
  3. Payment for services, OMFS and other – we want a fair fee schedule
  4. Primacy of Evidence Based Medicine
  5. Reasonable occupational and environmental health regulation

WOEMA Legislative Update
November 20, 2008

This week a key committee of the California Medical Association began discussing the prospect of consensus physician proposal for a new fee Workers’ Compensation fee schedule.

The CMA Workers’ Compensation Technical Advisory Committee on Monday reviewed a shared statement by WOEMA and the California Society for Industrial Medicine and Surgery (CSIMS) around the need for a new fee schedule that boosts payment for medical services in the system overall while correcting particularly for the underpayment of cognitive services.  WOEMA Legislative Committee Chair Steve Schumann, MD, a member of the Work Comp TAC, had submitted the statement to TAC members, who represent many of the specialties working in the system.

The discussion resumes again in the coming week, with Dr. Schumann, advocate Don Schinske set for further discussions on Tuesday with the CMA and specialty representatives.

In the meantime, the California Division of Workers’ Compensation is now conducting a formal search for a new medical executive medical director. For those who might be interested in applying for the post, below is the DWC’s job announcement.  No deadline for submitting materials is given:

The Division of Workers’ Compensation (DWC) is seeking an executive medical director to head the DWC Medical Unit. The executive medical director manages the DWC Medical Unit and reports to the division’s administrative director. The DWC is soliciting resumes and curriculum vitaes (CVs) from physicians who may be interested in the position. The DWC’s current medical director, Dr. Anne Searcy, will retire from state service in December.

The executive medical director advises and assists the DWC administrative director in the formulation and analysis of policies related to provision of medical treatment and reimbursement for medical treatment. This includes the medical treatment utilization schedule, the official medical fee schedule, the physician fee schedule, medical provider networks, and certified health care organizations.
The position provides medical expertise and policy guidance to ensure medical services are provided to injured workers as required by law.  The medical director also oversees the qualified medical evaluator (QME) program, including issuing QME panels to resolve medical treatment disputes.

The medical director represents DWC at legislative hearings, meetings, conferences, and before other agencies and public organizations on issues related to medical and health issues in the workers’ compensation system, as well as supervising physicians, attorneys, managers, investigators and other personnel in the DWC Medical Unit.

The medical director is appointed by the governor. A thorough background check is required. DWC is screening initial applicants and determining which should be interviewed.

Interested candidates should send their resume or CV to:

Dawn Bailey, executive secretary
Division of Workers’ Compensation
Office of the Administrative Director
1515 Clay Street, 17th floor
Oakland CA 94612

WOEMA Update
November 4, 2008

The California Division of Workers’ Compensation is losing its medical director, Dr. Anne Searcy, who in December will become senior vice president and assistant chief medical officer at Zenith Insurance.

Dr. Searcy, who has been with DWC since 1995, will be working with Zenith chief medical officer Bernyce Peplowski, DO, who serves as the Occupation Medicine representative on DWC’s Medical Evidence Evaluation Advisory Committee (MEEAC), a group led by Dr. Searcy that advises DWC on treatment guidelines.

Dr. Searcy, a speaker at the September WOHC, is respected and well-liked among the physician community, and her departure may present WOEMA with a challenge as the DWC pursues its efforts to overhaul the Official Medical Fee Schedule (OMFS). Dr. Searcy, who practiced occupational medicine before going into state service, had a keen handle on the issues related to the fee schedule, and navigated the DWC to its current policies and practices for adopting and implementing treatment guidelines.

To aid WOEMA’s efforts to educate state policymakers and regulators on fee schedule issues, we will be circulating a survey to its California members in the coming weeks. WOEMA members will be asked how their practices would be affected at various levels of reimbursement for the Evaluation and Management (E & M) codes, and to provide examples of how continued low reimbursement might compromises their ability to provide high quality care.

In other news, the Governor has reappointed Carried Nevans to continue serving as DWC deputy director. The DWC has been without a permanent Administrative Director since the departure of Andrea Hoch in 2005. Nevans’ reappointment does not require confirmation by the Senate, where the Administration’s 2004 Workers Compensation reforms remain unpopular with Democratic legislators and which may or may not figure in the Administration’s decision to leave the top title at DWC unfilled.

On the legislative front, state lawmakers this month will report for Special Session to make further cuts to the current Budget, at the same as they brace for a January Budget proposal from the Governor that will try to close another shortfall of at least $10 billion.

One effect of the continuous Budget wrangling is that it crowds out discussion on other policymaking, and ultimately, the legislation session ended this fall with the Governor vetoing most of the few remaining significant bills. The Governor did, however, sign some minor bills pertaining to Workers Compensation. These included:

AB 2091 (Fuentes) — Requires DWC’s annual medical treatment access study to include an analysis of access to pharmacy services. If access is found to be inadequate, DWC can increase the fee schedule above the current rate of 100-percent of Medi-Cal.

AB 1389 (Budget trailer bill) – Imposes an estimated $18.9 million in new surcharges on employers, which would be deposited into an Occupational Safety and Health Fund to implement and enforce occupational health and safety laws. The bill also extends to January 1, 2010 the repeal of DWC’s Return-to-Work Program, which reimburses employers up to $2,500 for technology and workplace improvements to promote injured workers’ return to work. The bill reinstates the Franchise Tax Board’s authority to collect delinquent assessments and penalties from employers for violation of labor and occupational health and safety laws.

AB 2754 (Bass) – Adds any methicillin-resistant Staphylococcus aureus
(MRSA) skin infection to the list of presumptions for public safety workers, and extends the presumption to 90 days after termination of employment.

SB 1271 (Cedillo) – Extends the cancer presumption that applies to firefighters to firefighters who working under contract to a department.

WOEMA Legislative Update
August 15, 2008

WOEMA and ACOEM Testify on Chronic Pain Guidelines
WOEMA Legislative Chair Steve Schumann, MD and the Editor-in-Chief of the ACOEM Practice Guidelines Kurt Hegmann, MD, PMH testified Tuesday at a regulatory hearing in Oakland, where they raised concerns about the Division of Workers’ Compensation proposed adoption of chronic pain treatment guidelines that lack the scientific rigor of ACOEM’s.

The doctors did, however, support DWC’s proposed adoption of the ACOEM chapter on Elbow Disorders. The pair assured DWC Executive Medical Director Anne Searcy that our two organizations wanted to work closely with the Division in its systematic updating of Medical Treatment Utilization Scheduled (MTUS) regulations.

Last year, as ACOEM was completing the update of its own chronic pain recommendations, DWC’s Medical Evidence Evaluation Advisory Committee developed its own pain guidelines based on guidelines published by ODG. Drs. Schumann and Hegmann noted how the inconsistency between ACOEM and ODG in the evaluation of evidence would set different standards within the MTUS regulations, which includes many chapters from the ACOEM guidelines but a few from other sources.

The California Workers’ Compensation Institute, which is funded by insurers and self-insurers, echoed those sentiments. Arguing that the proposed guidelines could ‘compromise the standard of care set by the existing MTUS, it urged DWC in a letter to hold off on adopting chronic pain guidelines until formal publication of the updated ACOEM chapter. CWCI noted that statute clearly specifies the use of the ACOEM guidelines unless a particular treatment area receives no mention. The Legislature already made the social policy decision, writes CWCI Claims and Medical Director Brenda Ramirez, the Legislature chose the ACOEM guidelines.

In separate comments, WOEMA also urged the Division to include language that provides clear guidance on how physicians in the clinic or conducting UR should use of strength of evidence rating system that is already in regulation. Specifically, if there is a dispute over treatment, who assigns the score to the supporting evidence, and what is the process for doing so? And how does that process affect the prescribed UR timeframes?

OMFS Discussions Begins
WOEMA is actively engaging with other provider organizations this summer in hopes to create provider consensus around a proposal for overhauling California’s Official Medical Fee Schedule. WOEMA’s Dr. Schumann and lobbyist Don Schinske have been working with representatives from the California Society for Industrial Medicine and Surgery (CSIMS) on a joint position paper asserting that reimbursement under a new RBRVS-based schedule should be set at a level sufficient to:

  • Provide for an increase in Evaluation and Management payments that corrects the historic underpayment for E&M and which reflects the increasing administrative work associated with Workers’ Comp cases.
  • Does not reduce reimbursement for procedural and surgical codes.

By arguing for increased overall dollars for physician services, WOEMA and others are hoping to head-off a potential battle among specialties that scuttled an overhaul four years ago. The joint WOEMA/CSIMS letter is now circulating among both primary care and procedural specialty organizations. These discussions include the CMA, where Dr. Schumann will be participating in discussions on the fee schedule as part of the CMA’s Workers’ Compensation Technical Advisory Committee.

Status of Legislation
In California, two pieces of public health legislation that WOEMA supports have advanced through the summer:

AB 2658 (Horton), which was signed by the Governor on August 1, requires laboratories to submit disease reports to local public health officers, and authorizes the Dept. of Public Health to set standards around timeliness and reporting mechanisms.

AB 2996 (De La Torre) requires the Department of Public Health (DPH) and local health departments, when conducting emergency or disaster preparedness exercises related to an infectious disease outbreak, to establish a process for identifying deficiencies in preparedness plans and procedures and tracking the implementation of corrective measures.

In Hawaii, Governor Linda Lingle has vetoed HB 2929, a WOEMA-supported bill to require that independent medical review be performed by physician agreed upon by both employer and worker. Under current law, the employer picks the reviewer. Although modest in scope, HB 2929 fell aground along Hawaii’s entrenched Work Comp battle lines, with reforms proposed by a pro-labor Legislature being vetoed by the moderate pro-employer governor.

WOEMA Legislative Update
July 22, 2008

WOEMA Legislative Chair Dr. Steven Schumann, Legislative Committee member Dr. Hong Zhang, and advocate Don Schinske met July 11 with staff for Congresswoman Doris Matsui (D-CA), author of ambitious piece of federal legislation to build the public health workforce.

HR 5496 proposes to spend $265 annually for five years to fund:

  • A public health workforce scholarship program, in which students seeking a health professional degree in epidemiology, laboratory science, environmental health, health communication, health education and behavioral science, information sciences or public administration could receive up to $1,200 per month if they agree to work for up to 2 years for public health agency.
  • Loan repayment program: Public health professionals could receive $35,000 per year for 3 years in loan repayment.
  • Grants for mid-career training in public-health preparedness or biodefense.
  • Academic grants : Academic public health departments could receive $250,000 grants to improve curricula, add instruction, recruit students, etc.

The WOEMA contingent explained to field representative Kari Lacosta that we would be inclined to support the bill, but noted our concern that the sheer size and scale of HR 5496 has us also considering the more modest approach of a different bill, HR 3404 (Green, D-TX) which provides for stipends for residents in Preventive Medicine and Public Health.

WOEMA will contact Rep. Matsui’s legislative office in Washington to determine whether HR 5496 is expected to move this year, with a just few weeks left in the federal session. We will also inquire about the prospect of suggesting language specific to physician stipends for consideration in the Congresswoman’s bill.

WOEMA offered to serve as a resource to the Congresswoman, and upon learning that Rep. Matsui is assembling advisors in healthcare, proposed to recommend several WOEMA physicians to provide input to the office on public health issues.

Also on Friday, the WOEMA team met with Carl Brakensiek and Steve Cattolica, the Executive Vice President and Director of Government Relations respectively for the California Society of Industrial Medicine and Surgery (CSIMS). The subject was the impending revision of the Workers’ Compensation Official Medical Fee Schedule (OMFS), and the prospect of agreeing to a set shared principles on the revision that both Primary Treating Physicians and specialists could embrace.

Such principles would include agreement that administrative burdens for all physicians in the system have increased faster than the reimbursement, and a recommendation that that the fee schedule revision include an increase in the overall dollar amount spent on medical services.

WOEMA and CSIMS are starting to draft a shared statement for review by their respective as well as other interested organizations. The idea behind such an agreement is to pursue, to the extent possible, the development of a single proposal on the OMFS revision from the primary and specialty physician communities, with the hope of avoiding the infighting between primary and specialty care that helped scuttle an OMFS revision in 2002.

WOEMA Update 5.23.08

Lewin Group releases OMFS model that would boost E & M 20 percent 

California’s Division of Workers’ Compensation has released its update from the Lewin Group that reports on changes in reimbursement expected from a switch from the Official Medical Fee Schedule (OMFS) to an RBRVS-based payment system. Under the Lewin Group modeling, the adoption of a single-modifier, RBRVS-based schedule with no new dollars added to the system would boost payments for Evaluation & Management (E & M) codes by 20 percent.

Payments for the surgical codes, on the other hand, would drop 25.9 percent. This dynamic set the stage for debate among the physician specialties in the coming months. WOEMA and its primary care allies will fight for the long-overdue increase in E & M payments while other specialties will aim to protect existing reimbursement levels.

Those tensions surfaced May 19 and 20, at two informational hearings on the Lewin update in Los Angeles and Oakland. The authors noted that their work, so far, has been based on a dollar-neutral assumption, and that more modeling will be forthcoming based on various levels of expanded overall expenditures. The question of new dollars is important: the easiest path politically for WOEMA and its allies is one in which E & M reimbursement can be raised with little or no effect on surgical payments. DWC Medical Director Dr. Anne Searcy explained that the Division has made no decision yet about expanding the pool of available dollars. She noted that DWC is already starting to informally calculate some possible increases, and that the Lewin Group will now crunch out several alternatives.

At the May 20 hearing in Oakland, WOEMA advocate Don Schinske pressed DWC and the Lewin authors on two points:

  •  That all additional modeling done by the Lewin Group incorporate the 28 percent increase in physician work and practice costs associated with the practice of occupational medicine relative to the similar code payments in Medicare. This disparity was noted in the original 2002 Lewin Group report on the fee schedule, but was not incorporated in the update. WOEMA noted that this component of the RBRVS payment calculation has likely increased under the system reforms of 2004, and continues to rise owing to such regulatory changes as the newly proposed PR-2 form, which requires additional reporting and assembly time.
  • That the discussions on RBRVS conversion include information from other states about any changes in utilization, patient satisfaction, and return-to-work measures that occurred after their own switch to an RBRVS system. That is, are there other things besides making physician pay more equitable to recommend the RBRVS switch?

For their part, representatives from the surgical specialties argued that the fee schedule should not reduce payment for the procedural codes to the point where patient access to care is affected. The Lewin authors  Al Dobson and Pete Welch, chiefly noted that the use of multiple conversion factors is frequently used to “soften” the blow of an RBRVS conversion. However, WOEMA and its allies will continue to argue that the use of multiple conversions would serve only to lock in the existing disparities.

And so the debate, as the process begins in earnest over the next couple of months, will focus on several factors in the fee schedule:

  • Whether the new schedule will come with new dollars overall, or will simply reallocate the current reimbursement pie.
  • The number of conversion factors
  •  The so-called “ground rules,” meaning the specific payment rules for particular codes (i.e., the cascading downward of payments for multiple similar procedures).
  • Effects of the changes on patient access (i.e., potential decline in participation by surgeons, versus the potential increase in participation by psychologists and psychiatrists).

Dr. Searcy did make one point clear at the meeting: DWC has no plans to adopt the Medicare modifier for the schedule, both because the Medicare modifier does not translate well to occupational health, and because of political vicissitudes of Medicare funding.

The Medical Director did urge stakeholders to submit comments on the Lewin Report, suggestions for additional modeling, their own office data, and other comments to herself and Administrative Director Carrie Nevans.

At the hearing WOEMA spoke directly with representatives from the other specialties, offering to work together toward a common recommendation. Such discussions will occur as well within the CMA’s Workers Compensation Technical Advisory Committee, where WOEMA Legislative Chair Steve Schumann, MD, holds a seat.

Also on the regulatory front, WOEMA issued an alert to members urging them to contact DWC and oppose the Division’s proposed changes to the PR-2 form. The new form includes a discussion section in which the provider must explain why the particular treatment was ordered, as well as a requirement that all prior treatment orders for that injury be attached. WOEMA has no issue with the intent of the change which is to ensure a sound basis for treatment but is opposed to the extra work required absent any adjustment in the fee schedule. Indeed, the basic problem with the proposed change, as well as the adoption of the restrictive pharmacy fee schedule last year, is that even rational