APPROVED MINUTES

Department of Industrial Relations

Industrial Medical Council Public Meeting

Holiday Inn - LAX, Los Angeles

Thursday, April 19, 2001

1. The meeting was called to order by Co-Chair Dr. Richard Pitts at 10:30 AM.

Members present:

Barry Halote, PhD. Michael Roback, M.D.

Robert Larsen, M.D. Patricia Sinnott, PT, MPH

Marvin Lipton, M.D. Richard Sommer, Esq.

Maria Mayoral, M.D. Lawrence Tain, D.C.

Ira Monosson, M.D. Paul E. Wakim, D.O.

Steven Nagelberg, M.D. Benjamin Yang, C.A. OMD

Glenn Ocker, DPM, MS

Richard Pitts, D.O.

Members absent:

Jonathan Ng, M.D.

Gayle Walsh, D.C.

1. Consent Agenda

a. Adoption of the Minutes and Notice of Actions: The Co-Chair, Dr. Pitts, asked for a motion on the Draft Minutes and Notice of Action of the March 15, 2001 IMC meeting.

ACTION: The Consent Agenda was approved unanimously.

b. Executive Medical Director's Report:

Dr. D. Allan MacKenzie indicated that his EMD report stood as written. Dr. MacKenzie introduced Ms. Kathy Tinios from CPS who came to give a presentation. He mentioned that the QME exam has been the IMC’s best product and was developed, administered and maintained by the Cooperative Personnel Services (CPS) of Sacramento. He stated that to date, over 9300 candidates have been examined and that there had been only two challenges to the validity of the exam. The IMC had prevailed in both cases. He stated that the Council needs to focus on the feedback from the recent exams and recent validation efforts by CPS.

Dr. MacKenzie then gave the floor to Ms. Tinios who passed out draft copies of their job analysis questionnaire. She gave an overview of her presentation which she called "Why You Do a Job Analysis." She noted that subject-matter experts helped CPS to get where they are today on completing the validation study and on completing the job analysis questionnaire. She stated that the IMC staff has spent a tremendous amount of time with CPS doing the job analysis, feedback and creating the survey. She gave further details on how CPS went about doing the job analysis.

Dr. Pitts reintroduced the two new Council Members just in case some of the public in Northern California did not meet them at the last meeting. It was noted that Dr. Glenn Ocker is the first podiatrist to be appointed to the Council and that Dr. Barry Halote is a psychologist from the Los Angeles area. He welcomed them both. Dr. MacKenzie asked Dr. Halote, a psychologist with a past history in testing, whether he had any constructive observations on Ms. Tinios’ presentation. Dr. Halote responded by asking why such a high sample rate (25%) is being used when a rate of 10 to 15% would be better. Dr. MacKenzie responded that Ms. Tinios had shown him documentary evidence as to why it should be as high as 20-25% and that he had been convinced after reading this material.

Election of Officers

Motion: Dr. Lipton: moved that the election of officers to the Executive Committee be held for the forthcoming/remainder of the year. It was seconded.

Dr. Roback nominated the current co-chairmen, vice-chairman, and secretary if they are willing to continue to serve.

It was seconded.

Action: Motion passes unanimously.

c. DWC Report:

Nothing to report.

2. Committee Reports

a. Fee Schedule Committee Report:

Mr. Richard Sommer stated that the Lewin Group will be at the May public meeting. Dr. Susan McKenzie said that three principles from the Lewin Group would attend the May meeting to discuss the RBRVS study. Handouts about the RBRVS study were distributed. The handouts provided is the study that looks at the impact of going from the current fee schedule to the RBRVS in cost-neutral transition to the new system. The study will look at the impact on the medical specialties. She requested an early Council meeting since the Lewin Group will be flying

in from the East Coast and they can return to the East Coast on Thursday. Dr. Pitts stated the meeting would begin at 9:30am. Mr. Sommer stated that they wanted to make a motion to approve.

Mr. Sommer commented on an old issue regarding whether people in the workers compensation system are getting the appropriate value for their E&M codes. Physicians spending time with patients, workers’ comp takes more time due to the elements not being in the definitions of what time constraints are. This debate has been going back and forth on whether it takes more or less time to see a workers comp patient. The Council has been trying to define whether or not the definition has all the right elements and is it being defined correctly for purposes of workers comp? In the time being included that it takes providers to deal with a workers comp patient, i.e. works stat issues, work constraint issues, talking to a variety of people that are not normal for a physician if your treating a medi-care/medi-caid patient. He further commented that it was put out for a bid, the Council voted to approve going out to find a study and could not find the right person. He stated that Dr. McKenzie and staff recommended a sole source contract and found a way to get the study running using the Lewin Group.

Mr. Sommer: Motion: to get to get started with the study.

Seconded: Dr. Wakim

Action: Motion passes unanimously.

Dr. McKenzie added that the Lewin Group will be bringing their E&M proposal to the next meeting.

Dr. MacKenzie asked Dr. McKenzie to discuss her critical path plan beyond May. She stated that the plan was to stay on track with the contract. The Lewin Group will discuss the opening of the studies at the May meeting and come back in July for the RBRVS study and the second one as well to present the result of their first analysis, their deliverables one and two so that all will have an opportunity to see them and have input on that. They will come back in December to present the final report on the RBRVS study. She commented that she hoped to get the E&M study running concurrently with the RBRVS study with a completion date in the fall. Dr. MacKenzie asked a final question on the E&M study which involves a lot of surveying from the work comp community and asked who will be the subject of that survey. She stated that in very general terms, she does not have their proposal, that they may probably sample the physician community by panels and paper surveys and rely on Lewin for determining what the sampling strategy be and how people will be identified.

b. IMC/DWC Liaison Work Group Report:

Dr. Michael Roback gave an overview on the subject of changes to the Physician’s Guide. He commented that one of the IMC’s major responsibilities has to do with the education of QMEs. Terminology is an important factor in terms of the responsibilities of a QME and that by giving courses and tests that we do all we can to educate the community. He noted that at times, issues are presented to the IMC which require a definition. The most difficult to define are not medical terms but common terms. He stated that he did not feel any term used by physicians for medical context should be initially defined by anyone except by a physician but that it may then be modified by everyone else. He cited the ‘Tenet’ case in which the use of ‘words’ which had existed in the work comp community for 10 years suddenly became very important. He commented that there were common words such as "further", "continuing", and "future", all dealing with care. He noted some of these definitions had never been taught correctly – for example, that "future medical care" is not stated correctly. The term "future" (treatment) was defined by the appellate court for an odd case, in a manner which some definitions had never been taught to physicians. These need to be taught to physicians but probably first need to be defined by the IMC. Guidance was given for these words but the appellate decision did not specifically define them. He provided a handout for the definitions. For discussion are the terms: "Further Treatment," "Continuing Treatment," and "Future Treatment." Dr. Pitts stated that the goal was to define the terms and asked Dr. Roback to put it in a motion.

Motion: Dr. Roback: change the words, on "Continuing Treatment" by taking out the word "predictable." In discussion, it was decided that the term "predictably" doesn’t really add anything. "Further Treatment" needed no change. "Continuing Treatment" should now read without the word "predictable" in the second line, and "Future Treatment" we’re defining now is a form of "Further Treatment" which is not needed and take out "on a predictable manner, is not needed at the current time" and enter "but may be needed at some time in the future." The first sentence should read, "a form or further treatment which is not needed at the current time but may be needed at some time in the future." This is saying that the three terms will be defined. Separate "Continuing Treatment" verses "Future Treatment". It means ‘without interruption’ and this is how the 9785 reads.

Dr. Pitts asked for clarification - if "continuing treatment was a form of further treatment which is needed at the current time based on the patients clinical status without interruption"? One of the problems has been to use "which means" and in 10 years or 10 minutes from now, we are not clear. Also a problem is the term "without interruption." Dr. Roback clarified that the term "continuing" means "at the present time it is not being interrupted" and is a good correction. Discussion ensued on "Current Treatment" and "Future Treatment" as compared to "Continuing Treatment".

Dr. Roback: Motion: to change to "Continuing Treatment."

Seconded: Dr. Yang.

Dr. Yang requested clarification on "Future Treatment" due to the patient possibly needing treatment in the future. Dr. Roback suggested stronger language than "maybe". Discussion ensued.

Dr. Pitts repeated the three terms to be defined: Further Treatment - treatment in addition to that which has already been received. It includes both continuing and future treatment; Continuing Treatment - form of further treatment which is needed at the current time based on the patient’s clinical status; and Future Treatment - a form of further treatment which is not needed at the current time but may be needed at some time in the future.

Ms. Sinnott said that under Roberts Rules of Order, if you vote on a topic or a motion and it goes down, you are precluded from discussing it again. She asked if one was going to stand by this in case the motion is referred for further analysis by judges or Council? Discussion ensued.

Dr. Roback asked if something could be put in the Physician’s Guide as an opinion. Mr. Fisher explained that it would but not have the force or effect of law because it has not gone through the hearing process. Mr. Kizer agreed because the Physician’s Guide is an educational document. Dr. Roback sensed that for this to have the same effect and to parallel to what is used in 9785, it should be of the same legal value and legal substance. Discussion ensued.

Dr. Pitts reminded everyone that there was a motion on the floor to define the terms. What effect it has and where they go is a separate issue. He read the three definitions again. Dr. Pitts asked for a show of hands in favor of the motion. Vote: Ten in favor. The motion was to define the three terms only.

Dr. Roback: Motion #2: that the definitions will be sent to the QMEs, WCABs, AD, DEU, other involved parties and approved providers of continuing medical education.

Seconded: Dr. Larson.

Action: Motion passes.

Discussion was opened and ensued.

Dr. Roback withdrew the motion: based on the discussion. New Motion: put the definition in regulation form and take to public hearing. Mr. Kizer clarified that 9785 is an AD regulation and that it can not be rewritten nor amended just as the AD can not rewrite and amend the IMC QME eligibility regulations. Discussion ensued.

It was suggested to write a letter to the AD to consider these definitions.

Dr. Roback: Motion: In IMC’s advisory capacity to the AD, the Council is suggesting a revision of 9785, since the current form is not in compliance with our definitions of further treatment, continuing treatment and future treatment.

It was seconded.

Mr. Fisher expressed his concern if this matter was appropriately noticed that this type of action. If the IMC tells the Administrative Director to change their regulation it may put in motion a formal procedure whereby the AD has to formally respond to the request that the regulation be changed under the Administrative Procedure Act.

Dr. Pitts clarified that the discussion is to draft a letter to the AD to request him to reconsider 9785 in light of these definitions. Discussion ensued.

Ms. Sinnott: Motion: that the co-chairs and the Executive Medical Director initiate a discussion with the AD regarding re-adoption of these definitional changes in 9785 3 (g) and report back to the May 2001 IMC Public Meeting.

Seconded: Dr. Larson. Discussion ensued.

Ms. Sinnott clarified her motion stating that her motion is to substitute the motion to write a letter which was a motion to substitute for or to edit for content. She stated that in Roberts, the procedure is to clarify each substitution and then vote on one or the other. Dr. Pitts summarized the intent of the motion is to give the AD a heads up on reconsidering 9785 in the context of these definitions. It was acceptable.

Dr. Roback stated that the Council should communicate through the IMC office on what has been done, establish a time to meet and discuss with the AD and to then return to the Council with a formal report which will go through Committee, and come back for a potential vote. Everyone was in agreement.

Dr. MacKenzie informed that the final definitions will be drafted then sent to the AD, then either set up a telephone conference or a visit or meet before the next Council meeting.

    1. Education Committee Report/Subcommittee Meeting:

Dr. Wakim informed the Council that he was laying out groundwork for the educational material for urinary incontinence and the disabilities associated with it. Then discussed was the recommendation for membership in the subcommittee. He thanked Mr. Bill Hutchins who assisted in providing a manuscript from Department of Health, and Drs. Anne Searcy and Susan McKenzie in regards to the literature search. He also requested another subcommittee meeting in May to invite knowledgeable members pertaining to urinary incontinence in order to come up with a reasonable definition of work restrictions associated with this.

d. Discipline Committee Report:

Nothing to report.

Miscellaneous

Dr. Lipton reported on behalf of his committee – New Surgical Procedures and Medical Protocols. Specifically, they’re looking into the efficacy of IDET procedures which are now being done very frequently. There is a question on what the results are, how useful it is, etc. He stated that he had gone to the carriers asked them how many patients have had the procedure and afterwards, how many went back to work, and how many went back to the same job versus some other type of job. Discussion ensued.

4. Announcements

Dr. Pitts announced that the next meeting will be on May 17, 2001 in South San Francisco.

Meeting adjourned at 11:55am.

IMC Staff present:

Lety Buenviaje Sylvia Martell

Gerry Evans Susan McKenzie, M.D.

James Fisher Anne Searcy, M.D

Elizabeth Ignacio Larry Williams

David Kizer, Esq.

Allan MacKenzie, M.D.

Members of the public present:

Steven Becker, CCA Sheri Nolen, HNC Insurance Solutions

Carl Brakensiek, CSIMS Jan Nguyen, CCN

Jennifer Brockway, Intercommunity Med. Grp. Jennifer Orosz, HNC Insurance Solution

Linda Coltrin, CA Chiropractic Assoc. Steve Papinchak, Workers’ Comp Adv

Benita Gagne, Intercommunity Med. Grp. Diane Przepiorski, COA

Vern Goldschmid, CAAA Brenda Ramirez, State Fund

Doug Hikawa, Priority CompNet Joe Solancho, Care Solutions

B. Stanfield, CCA