APPROVED MINUTES

Department of Industrial Relations

Industrial Medical Council Public Meeting

Holiday Inn, LAX

Thursday, April 20, 2000

1. The meeting was called to order by Co-Chair Dr. Richard Pitts at 10:15 A.M.

A quorum was present.

Members present:

Robert Larsen, MD Richard Pitts, DO

Marvin Lipton, MD Glenn Repko, Ph.D

Maria Mayoral, MD Richard Sommer, M.Phil, JD

Ira Monosson, MD Lawrence Tain, DC

Steven Nagelberg, MD Paul E. Wakim, DO

Jonathan Ng, MD Gayle Walsh, DC

Benjamin Yang, CA, OMD

Members absent:

Robert Goldberg, MD Patricia Sinnott, PT, MPH

Hubert T. Greenway, Jr., MD Michael Roback, MD

2. Consent Agenda:

a. Adoption of the Minutes and Notice of Actions: The Co Chair, Dr. Richard Pitts asked for a motion to approve the minutes of the January 20, 2000 and February 17, 2000 IMC meetings.

ACTION: the Council approved the minutes.

b. Executive Medical Director's Report:

Dr. D. Allan MacKenzie indicated his EMD report stood as written. He then introduced and welcomed Dr. Benjamin Yang, CA, OMD, as a new Council Member appointed as the first member from the acupuncture community for a four year term by Senator John Burton. Dr. Yang, a licensed acupuncturist and Doctor of Oriental Medicine, took his oath of office last February 20th. He had extensive credentials including certification in both acupuncture and oriental medicine. He also taught acupuncture at San Francisco College of Acupuncture and Oriental Medicine in 1980's and served as the chairperson and commissioner to the State of California Acupuncture Board from 1996 to 1999.

Dr. MacKenzie also introduced Mr. James Fisher, Esq. as the new IMC Staff Counsel. Mr. Fisher was an associate in a workers' compensation defense firm in San Francisco for three and half years. Prior to this, he worked with the Dept. of Industrial Relations, Office of the Director Legal Unit for 13 years.

Dr. MacKenzie gave an update of Assembly Bill 2301 legislation which would give Cooperative Personnel Services (CPS) authority to administer the Qualified Medical Evaluation (QME) Exams. The IMC Staff wrote a letter about the impact of the legislation and was invited to present testimony on behalf of this position before the Consumer Protection Government Efficiency and Economic Development Committee on the 11th of April. This item passed unopposed and was expected to come up again before the Appropriations Committee in the last week of April. IMC's contract with CPS expires on the 30th of June and if the contract is not renewed on the first of July, the September QME's exam would be in jeopardy. Dr. MacKenzie did not foresee any major problems and if he does, the Council will be notified

He also announced that the Neuromusculoskeletal Protocol Committee would be hosting an information gathering session on May 9, 2000, at the LAX Holiday Inn. The Council had a mandate to create med-legal evaluation protocols for the lumbar and cervical spine as well as for the extremities. Previously, the Committee completed the lumbar and spine protocol which have been in existence for some two years. Now is the ideal time to move on to complete the cervical spine and extremity protocols. The goal of this session would be to hear public comments on protocols for evaluating neurological disabilities associated with injuries of the cervical spine.

Dr. MacKenzie reported that the Office of Administrative Law approved the IMC Regulations and these would become effective on the 14th of May.

c. Legislative report: Dr. Pitts stated that the report prepared by the new IMC Counselor, Mr. Fisher, was included in the packet.

d. DWC report: Dr. MacKenzie announced that the Administrative Director could not be present at today's meeting and that it was important for the Council to understand that there were difficulties in the In-Patient Hospital Fee Schedule and the AD needs assistance from the IMC.

Dr. Linda Rudolph reported the DWC had been hearing concerns about the in-patient hospital fee schedules for several months now. DWC sent letters requesting information regarding any specific areas of the fee schedules that were causing particular problems. A number of hospitals and other large hospitals' PPO networks responded. They found problem with some of the DRGs for spine surgery, that was in large part related to the costs of the hardware used in the surgery. Sometimes the costs of hardware actually exceed the total DRG reimbursement. There were also some significant problems with severe spine injury cases that in other systems were called cost outliers, where the costs of hospitalization far surpass the DRGs reimbursement rate.

Dr. Rudolph and the representatives of the payor and hospital providers' community met and talked about these issues. She said the proposals were to: a) exempt the spine DRGs altogether or; b) exempt from the fee schedules and actually cut from the DRG, the actual costs of hardware used in surgery that probably pertains not just the spine hardware but also hardware used in knee, hip and other orthopedic surgery. Thus, instead of being counted as a part of the global reimbursement, the hardware could be considered and reimbursed as durable medical equipment or; c) create some kind of cost outliers mechanism. Probably we have the only hospital fee schedule that has no cost outlier mechanism built in to it. DWC did not feel they had a completely adequate data base to make a final decision for a long term fix. Dr. Rudolph would like to move to a short term fix for some of the problems that seemed most acute, even before they proceed to do some analysis of a larger data base.

CWCI offered to have an independent researcher access their ICIS data base that had information from workers' comp. insurers in California. This data base included hospital payments

charge data and also access to a data base of non workers' compensation insurance company data. Dr. Rudolph thought in terms of doing a major fine tuning of the hospital fee schedule and that having some assistance in analyzing that data would be very useful.

Dr. MacKenzie asked Dr. Rudolph if there were two different areas to move in: 1) to analyze this data from CWCI which could be a long term task, and 2) a short term task of doing something more immediate with the fee schedule or did Dr. Rudolph see that one could be sequential to the other?

Dr. Rudolph responded that she was not positive about these choices. The DWC is still working with the data that they have and will make a determination about which is the best way to proceed.

Dr. MacKenzie stated that during the Executive Committee Meeting, the Members felt that what we need to do was to go out and survey the hospitals and try to corroborate or deny this anecdotal evidence, however, he now understands that DWC had already done this.

Dr. Rudolph responded that they have the relevant data from individual hospitals and part of the problem was that the data was in different formats. They received very extensive data from one of the large PPO networks and that they are still analyzing this material. She thought that it would be helpful for a more permanent fix to the problem of the hospital fee schedule if they were able to access this larger data base and have an independent researcher evaluate it.

Lastly, Dr. Rudolph announced that the DWC is about to start a billing dispute resolution pilot project. This project would be limited to two counties and would last for a finite period of time. A notice with all the details will be mailed out soon. The intent was to see whether or not we can set up an alternative to the lien process as a mechanism to resolve disputes over billing issues, i.e. Were things being paid in accord with the Fee Schedule or was there a problem with the way that things were being quoted? They would not be looking at any treatments that were accepted on medical necessity or medical reasonableness. If the pilot suggests that this is a reasonable solution, DWC would be able to institute the process on a broader basis and would be doing a structured evaluation of how all the various parties involved in the pilot feel about it, in order to determine whether it works or not.

Dr. Rudolph invited the Council Members to attend a Quality of Medical Care for Injured Workers workshop on May 24th and 25th. The Agency for Health Care Research and Quality, a Federal agency responsible for issues related to quality of medical care, will co-sponsor this event with DWC.

Dr. Pitts briefly suspended the Consent Agenda and asked Dr. Marvin Lipton to give a report on the Presentation of New Procedures and Protocols.

3. Presentation on New Procedures and Protocols:

Dr. Marvin Lipton reported that the IMC was probably the only major singular source of medical information that is objectively available to the workers' comp community. In the past, the Medical Director of the Workers' Compensation Appeals Board, was the major source of medical information as far as judges and attorneys were concerned in regards to what was appropriate recommended treatment for an injured worker. Up to now there had been no committee assigned to the tasks of assuring the injured worker that the care he or she was receiving was medically justifiable and financially reasonable. The needs of the injured workers must be met as new advances in medicine are developed. Medical care not deemed to be appropriate must also be

recognized as well as those procedures and modalities that include the highly experimental and/or unproven. A reasonable remuneration must also be formulated for these new modalities of medical care.

Dr. Lipton said that he had been requested to head up a sub-committee comprised of physicians who are recognized for their knowledge and excellence in treatment and who are familiar with the nuances of workers' compensation. He had spoken to and received assurances from the following individuals that they would serve as consultant to the committee when called upon and would do all necessary investigative background and research on items as they come up. They were Dr. Peter Mandell, an orthopedic surgeon and currently president of the Committee on Injured Workers' for the American Academy of Orthopedic Surgeons; Dr. Andrew Slauckey, a spine surgeon and recently appointed chief of spine surgery at Summit Hospital, and Dr. David Kneapler, board certified internist and rheumatologist and former president of California Society of Industrial Medicine and Surgery, to help address the questions that would come up regarding such conditions as fibromalygia, chronic fatigue syndrome and repetitive stress injuries, etc.

Dr. Lipton stated that the question before the Council at this time was a newer technology called Intra Discal Electro Thermal Coagulation (IDET). The problems facing the community were to determine the indications for and the cost of the procedure. There are a great number of these cases being done and yet no relative value schedule (RVS) has been assigned to it. The prices submitted range anywhere from $5000 to $15,000. The task was to determine what were the indications for IDET and what was a reasonable level of reimbursement.

Dr. Lipton said that he had a discussion with the inventors of the procedure, Drs. Jeffrey and Joel Saal. It was determined that a reasonable fee for a one level IDET would be $1900. That was 50% over what Medicare pays and just under what AETNA and HMO are paying. AETNA was paying $2000 so $1900 would be more acceptable and if a second level was done, that would be paid at 50% less. The goal would be to educate the judges, attorneys and doctors, so that when a request for such procedure is made to a judge, he has a medical resource. As far as IDET was concerned, there are now perhaps two to three thousands procedures that have been performed. The procedure has a very short-term follow-up of six months to a year and the results look good. He said that the important issue is this would be the first time that IMC had put forth a recommendation on newer technology as far as an indications and the costs are concerned. This may be a forerunner of a process that the IMC would be responsible for, as an adjunct to the AD as regards the new technology.

Dr. Jonathan Ng asked if there were any peer review studies, articles or references about these procedure. Dr. Lipton responded there were about 60 such articles.

Dr. Pitts responded to Dr. Lipton that the Council would not be able to work and take any action on these issues today, but instead he would work with Dr. Lipton on trying to get a format that could be used for other issues.

On the issue of the Disability Evaluation Unit, Dr. MacKenzie stated that nothing had happened since Dr. Michael Roback reported to the Council that he had met with Mr. Blair Megowan, who expressed interest and extended an invitation to the Council Members to sit down with DEU and discuss what the problems were and where the Council could help them. Mr. Megowan identified the problem of incontinence (both bowel and urinary incontinence) and the fact that they desperately needed guidelines to help them in some of their rating tasks. Dr. Roback had identified four or five different specialty areas which should sit on this Committee. Dr. Roback intended to stand back and let them meet and see: a) if there was a problem, and b) if they

could help with and make recommendations to the Council and if that would be helpful to the Disability Evaluation Unit.

Returning to the Consent Agenda

MOTION: Dr. Pitts asked whether there was any opposition to adoption of the consent agenda. There was none.

ACTION: The consent agenda was adopted.

4. Education Committee Report: Dr. Gayle Walsh reported that the first item discussed during the Committee meeting was the draft IMC Accreditation Program on Continuing Education. for QMEs that Dr. Susan McKenzie put together. Dr. Walsh asked the Council to review this and give their recommendations to Dr. McKenzie.

The second item was the continuing education course providers that the Committee recommended for approval. There were two new providers: Resolutions Association and Current Compensation Seminars, and three providers for renewals: Michael Bronshvag, M.D., Inc.; CA Orthopedic Association, and the CA Society of Industrial Medicine and Surgery.

MOTION: To approve the two new providers and the renewals of three providers of QME continuing education courses. Motion: Dr. Walsh, Seconded: Dr. Paul Wakim.

ACTION: Adopted.

Mr. David Kizer announced that the class dates were listed on the Councils' packet for those who were interested in auditing or attending any courses.

Dr. Walsh reported that the third item for discussion was the QME test given on March 18th. There were 28 acupuncturist QMEs and 257 general QMEs who took the test. CPS did their standard evaluation and cost analysis and recommended a pass point of 70% for both exams. This would be the same percent pass point that IMC had in all the previous tests. This test fell within the same standard deviations and fiscal analysis of all previous exams.

Mr. Kizer briefly discussed matrix from CPS explaining how they set up the Angoff Analysis to justify the 70% pass rate. The memo with the matrix also explained how the pass point may vary up or down with each test administration

Discussion ensued regarding the concern as to why the percentage of candidates passing the exam keeps on dropping.

Dr. Walsh explained that the test itself and the questions presented to the candidates were reviewed for statistical validity. CPS made sure that the test was valid and equally fair from time period to time period. Looking at the change in the percentage of pass rate, it was more likely a problem with the candidates and not the test. Dr. Walsh thought that some of the concerns raised were: the candidates were simply the same candidates who just could not pass this test; the materials given were not adequate, and the courses that prepared them were inadequate. The IMC recommended for everybody to look at the Treating Physician’s Guide for materials that they need to understand and would help them pass the test. Hopefully, a preparatory course such as the proposed 12 hour report writing course maybe incorporated with this material that would prepare the candidates do better for the test.

Dr. MacKenzie said that CPS was going to develop a post test analysis and to identify and make available to the unsuccessful candidates those areas in which they had not performed well.

MOTION: To accept the CPS recommendation of 70% pass point for acupuncturists and general QMEs. Motion: Dr. Walsh, Seconded: Dr. Mayoral.

ACTION: Adopted.

Dr. Walsh: said the last item was a list of 10 most common errors in report writing that Dr. Anne Searcy put together. The Committee would recommend these list of 10 items to be given to the course providers so they know what to include in their courses so that candidates would write better reports.

Dr. Searcy reported that every year IMC Staff reviewed about thousand (1000) reports from QMEs and AMEs. She extended her gratitude to the Disability Evaluation Units, who copied and send these reports to the IMC and also to Julie Okimura for all the effort that was put into the med-legal report reviews.

Dr. Searcy stated this was an opportunity for continuous quality improvement where we report back to the physician’s after looking at their reports very critically to give them input on how they can improve these reports. The overall quality of the reports were excellent. About twenty five (25) items were received. The majority of the reports have missed two or fewer items which would translate to 92% or an A if we are grading them. We can not find any mistakes on approximately 26% of the reports and that was up from 10% two years ago.

She listed the most frequent errors found: The omission of a statement about face to face time continued to be the number one problem, it was down 34% down from 50% two years ago. Physicians who received letters from IMC previously were down to 17%; The county or date of declaration was missing at 23%. Most of these things were not needed for rating. The report could go through the system whether they were missing this or not.

The IMC Staff looked at two types of reports: 1) those received randomly from the DEU and, 2) those sent as a problem reports. On the random reports, only 80% had problems with properly expressive work restrictions compared to 23% in the problem reports. The IMC Staff would like to obtain more reports from the community, especially those that they saw as being poorly written. Mr. David Kizer had also helped physicians on issue such as apportionment and we are very receptive to having physicians send us reports or talk to us about the problems. Dr. Searcy said that the rest of the list would be fairly self explanatory.

Dr. Pitts thanked Dr. Searcy and then he recognized the members of the IMC Staff present at today's meeting

Dr. Wakim wanted to recommend that physicians include the estimated grip measurements on bilateral injuries. DEU evaluators were rejecting reports that do not include this.

MOTION: To send the list to QMEs and to course providers and to recommend that they include these areas in their courses so that the people taking their courses understand these are important areas needed to be included in their reports. Motion: Dr. Walsh, Seconded:

ACTION: Adopted.

5. Fee Schedule Committee report:

Mr. Sommer reported that the Fee Schedule Committee met today. He gave a little background of the Fee Schedule Committee for the benefit of the new members so they would have some idea where are today and where we had came from.

The Fee Schedule Committee deals with everything from the medical legal fee schedule to the treatment fee schedule. Several years ago, the Council conducted an all inclusive review of the fee schedules for which it had tremendous participation from the payor community. At the end of this process, it became quite evident that there were some fundamental problems with the original treatment fee schedule that was adopted many years ago before the IMC existed. We were now moving in a direction of a slow but steady movement towards an RBRVS based system. Mr. Sommer strongly encouraged any new council members to read the report of Professor Gerald Kominski from UCLA, who was hired as a consultant. His report deals on the background of RBRVS system, issues and concerns.

Mr. Sommer continued that today we now have an RFP for a study of the E&M Codes. This was finally approved by other governmental agencies after two months of review.

Dr. Susan McKenzie discussed the RFP, which is basically a study that will be done to look at the relative values for physician reimbursement for the evaluation and management codes. Since we were proposing to go to the RBRVS, we would be looking at the Medicare Relative Values for the E & M services and then at the workers’ comp load that comes under the evaluation & management codes to make a determination about whether those were comparable or not. The RFP process itself requires that bidders bid to do this study for the IMC. The RFP is open ended in that we are going to ask bidders to submit their methodology and do this on a time line set out for them. They will receive a score for these written proposals. If the written proposals achieve a certain score, they will give an oral presentation to a committee and then the victorious bidder will be the one with the highest score. We are hoping that the study would be completed by the end of the year. Simultaneously, we will be doing some of the other parts of the fee schedule that we need to do before DWC can put this through Rulemaking.

Mr. Sommer and Dr. Pitts recognized and commended Dr. McKenzie's expertise and works done especially in the Fee Schedule.

Dr. MacKenzie reported that AB 776 was moving forward. The Council Members and Staff had been working with Mr. Carl Brakensiek to polish the amendments to the initial Bill such that it would be helpful to the Council and the injured workers and their providers.

Mr. Kizer announced for general information that Dr. Lurid sued the Medical Board for posting his address on the web site. The Medical Board prevailed and the Court held that the MDs are required an address of records posted on the web site, obviously, one is not required to use home address but can use a P.O. Box.

Dr. Larsen stated that on this month's American Journal for Public Health, there was an article written by doctors for the World Health Organization about global burden of injuries, a follow up to what the WHO, World Bank and Harvard School of Public Health begun in recent years, a study of major causes of morbidity and mortality across the world. When they looked at industrialized and high income countries versus low and middle income countries, they focused on the major causes of death worldwide. Now they were focusing on what causes disability of various

sort around the world. The article discussed the burden placed on young adults and their societies to injuries. What this article concluded was that physicians and public health professionals need to, in the 21st centuries, put efforts into education prevention and health and safety issues. They also discussed, aside from primary type prevention, secondary and tertiary prevention, pre hospital measures, hospital measures and rehabilitation following hospitalization to reduce the extensive disability. Dr. Larsen thought that it could be within the IMC's charge to work with some other agencies, as medical and health providers, to look at the secondary and tertiary type preventive measures to reduce the extensive disability. He suggested that we might have an ad hoc committee to look at this.

Dr. Rudolph agreed with Dr. Larsen. She said that DWC is doing is a series of formal focus groups with different groups in workers' comp. community. They discussed what people thought of the medical care in the workers' comp. system; how people perceived quality; what were the aspects of quality of care. One of the things that came out of the session with injured workers was the extent to which our system foster disability instead of preventing it. Dr. Rudolph is pleased to see the Council make a statement about the importance of return to work but it would be worth while to go beyond making a statement. There will be a lot of work to be done in the medical community on the whole issue of disability prevention that we have not paid adequate attention to and she urged the Council to take on Dr. Larsen's suggestion.

Dr. Pitts requested Dr. Rudolph to expend on the DWC workshop in May. Dr. Rudolph said it will be a smaller group to encourage discussion and will have cross sections of the workers comp. community represented, as a way to engage discussion on what the community can do to improve the quality of care for injured workers.

6. Discipline Committee Report: Dr. Pitts announced that there would be a closed meeting to discuss disciplinary legal matters. He indicated that any action taken during the closed session would be announced when the open session resumed.

The room was cleared and the closed session began at 11:45 a.m.

The open session resumed at 12:00 p.m.

Dr. Pitts stated that during the closed session, the Council heard recommendations from the Discipline Committee regarding Dr. Blount.

MOTION: Per settlement agreement with Dr. Blount, it was recommended that he resign his appointment as QME for six months, be put probation for six months and complete 12 hours ethics training. Motion: Dr. Ng., Seconded:

ACTION: Adopted.

7. Announcement:

Dr. Pitts announced that the next meeting would be on May 18, 2000, in South San Francisco. He also mentioned some request to meet in August instead of July. This would be discussed at the May meeting.

9. Meeting adjourned at 12:15 P.M.

Thursday, April 20, 2000

IMC Staff present:

Tom Brannon Allan MacKenzie, M.D.

Diana Cornell David A. Kizer, Esq.

Mila Diadula James D. Fisher, Esq.

Gerry Evans Susan McKenzie, M.D.

Elizabeth Ignacio

Anne Searcy, M.D.

Larry Williams

DWC Staff present:

Linda Rudolph, M.D.

Suzanne Honor, WCC

Members of the public present:

Linda Cotrin, CCA Mike Sackett, LACC

Rea Crane, CWCI Philipp Lippe, MD, CMA, CANS

Carl Brakensiek, CSIMS Doug Hikawa, Priority CompNet

Ken Young, Pres. OPSC James Spivey, Care Solutions

Cheryl Harger, Intracorp Benita Gagne, InterCommunity MG

Barbara Wallner, Western Growers Valerie Pere, SCIF

Wendy Hardy, Business Info. Consult. Christina Munguia, SCIF

Ronena Summers, Claimrelief Advocary Network Bill Hutchins, eRehab

Vern Goldschmid, CAAA Kim Wiswell, Kaiser Permanente

Craig Morris, AFICC Brenda Ramires, SCIF

Barry Adelman, USHMG