APPROVED MINUTES

Department of Industrial Relations

Industrial Medical Council Public Meeting

Best Western - Grosvenor Hotel, So. San Francisco

Thursday, September 21, 2000

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

Members present:

Robert Larsen, M.D. Glenn Repko, Ph.D.

Marvin Lipton, M.D. Patricia Sinnott, PT, MPH

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

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

Steven Nagelberg, M.D. Gayle Walsh, D.C.

Jonathan Ng, M.D. Benjamin Yang, C.A. OMD

Richard Pitts, D.O.

Members absent:

Michael Roback, M.D.

Richard Sommer, Esq.

Dr. Pitts asked that everyone introduce themselves beginning with the Council Members and then the public.

    1. Consent Agenda

a. Adoption of the Minutes and Notice of Actions: The Co-Chair, Dr. Pitts, asked for a motion to approve the minutes of the July 20, 2000 IMC meeting.

ACTION: The Consent Agenda was approved unanimously with one correction.

b. Executive Medical Director's Report:

Dr. D. Allan MacKenzie's EMD report stands as written. He then highlighted several developments. 1) the letter of resignation of Dr. Hubert Greenway, Dermatologist of Scripps Institute. Dr. MacKenzie stated that Dr. Greenway cited a number of past and future difficulties which he had with time and time management. Dr. Greenway was recently appointed the CEO of the Scripps Institute and foresaw significant conflict in trying to attend the meetings and therefor submitted his resignation to the Co-chairs. Dr. MacKenzie reported that Dr. Greenway graciously offered to help the Council in any way he could and asked if there were any specifics. Dr. MacKenzie suggested he could try to interest the Governor to make the appointments to the Industrial Medical Council that weíve been waiting for. He graciously did that as indicated in his letter. Also, he proposed to do everything that he could as the new CEO of Scripps to help us to fill our ranks.

Dr. MacKenzie went on to say the Council has been through an administrative exercise and that the Council will hear a great deal from the Director and the Business Manager of the Department of Industrial Relations. He reported that he had met with Director Smith back in May and discussed mission and vision issues and informed him about things the Council was doing and proposing to do. The Director suggested that this all sounded like the subject matter for a BCP. Accordingly, IMC submitted a BCP which was for three positions to fulfill the mandate imposed by AB 776, to revise the materials used to train and educate physicians, and to monitor and critique physician performance in workersí compensation. Mr. Smith was told that the Council was in the process of learning that the work comp community was critical of the fact that IMC appeared to be stuck on regulatory issues in report writing and not paying sufficient attention to ratability issues. Dr. MacKenzie explained that IMCís mission was to regulate Qualified Medical Evaluators (QMEs) which is what the IMC was doing with the QME Report Survey. Dr. MacKenzie further explained that in the past five years, the IMC had scrutinized over 5,000 QME reports under the leadership of Dr. Anne Searcy and resolved to examine 1,000 reports in the year 2000. The report will be on Mr. Richard Gannon, the Administrative Directorís desk on January 1, 2001. In subsequent reports, the IMC will start looking more closely at some of the factors of ratability. This was discussed with Blair Megowan, Chief of DEU, who has given the IMC his blessing and has offered to help the IMC in any way he can.

Dr. Pitts asked if anyone had any questions for Dr. MacKenzie. There being none, he invited Director Smith to come and join the table.

c. DIR/IMC Update:

Mr. Stephen Smith greeted and thanked the Council for inviting him to speak. He informed the Council that he wanted to talk briefly about three things: 1) the exercise in vacancies that they went through in recent months, 2) what he saw as an increasing role for the IMC, 3) and finally, where he thinks workers' comp is headed in the near future.

Mr. Smith reported that on the vacancy issue, there was a lot of consternation about the fact that the IMC was hit disproportionately in the recent elimination of vacant positions in the State of California. He informed the Council that this Administration, Department, and Governor have no interest in perpetuating the previous Administrationís modus operandi with the Council. What essentially triggered this exercise began early in the last legislative session. He continued that the Legislature, especially the Republican leadership, interested the Governor in eliminating as many vacant positions in State services as they could. The Governor decided to target the top nineteen departments with the highest vacancy rate in California.

Director Smith stated that DIR was targeted right away and he started to make some arguments inside the Administration about how DIR did not want to perpetuate the policy. DIR lost only 31 positions because the Governor's office recognized that DIR was a special circumstance. The problem was compounded by two facts: DIR was told it could not cut any positions in Labor Standards or Occupational Health & Safety Enforcement because these two places had been decimated by the former administration. Also, they were advised not to cut any judgesí positions in the Division of Workers' Compensation. The cuts became particularly focused. This is first part of the internal dynamic and the second part is whether you like it or not, the IMC had the highest vacancy rate of any sub-division within DIR. The IMC then took a disproportionate cut. The main point Mr. Smith wanted to make to the IMC is that it was not an effort to weaken the IMC, that it was not directed against the IMC and there was no bad intention in doing this. He then stated that as the Department Director he and the Administration valued the work that both the Council and IMC staff are doing.

Mr. Smith then went into his second point on the increasing role for the IMC. It has come to his attention repeatedly around the workers' comp community that there is general complaining about the poor quality of medical reports. He stated that the best solution to this problem is the type of program proposed by AB 776 which was passed by the Legislature and signed by the Governor. He reported he was quite ecstatic when it came to him several months ago and he stated that he we would like to expand here on why we got a Budget Change Proposal (BCP) into the Department of Finance (DOF). He felt that this BCP needs to go to DOF and hopefully it will end up in the State Governor's Proposed State Budget in January and he will ask the Legislature to consider it carefully.

He informed the Council that DIR had a fairly successful record of getting BCPs approved. This year has been tougher. DIR has been told in the Cabinet meetings that no new PYs would be authorized in the State. DIR has been more modest - it submitted 20% of what it had usually submitted for new PY proposals. This year the DOF received the IMCís BCP for three new PYs. We will fight for it. DIR will get this through the Administration, the Governor and the Legislature. He stated how important it is that DIR needs to do more training for QMEs writing better reports, and better treating physiciansí training.

Mr. Smithís third point was to talk about what DIR is going to do about workers' comp. The Governor intends to veto AB 996. The Governor made clear that he wants an early bill next year. The Director does not believe there has ever been a workers' comp reform bill that has been done before the State budget process. The Governor is making his Administration, a number of departments inside, and some of his senior staff available to help process research issues and move agenda items. Also, they need to figure out what DIR is going to do and how DIR is going to get a bill that is best for the system, best for the injured workers, and the State of California. Finally, he encouraged the Council to think about how it can participate in the process. He concluded by stating the one mistake DIR made in the past six months on the vacancy issue was that he didn't communicate sufficiently with the Council and staff as well as he should have. He assured better communication both ways. He introduced Marisa Duek, Chief of Administration with DIR.

Ms. Marisa Duek greeted the Council and introduced herself and gave some background on her position. She commented that she was familiar with the changes that have occurred within IMC in the past nine years. She stated it was important to know two things in order to understand the vacancy issues with IMC. The first was what Mr. Smith touched on earlier, which is an issue that the Legislature brought up mid spring last year and something that we have to react to. The second was the environment in the IMC that occurred during the last nine/ten years since the 1989 Reform, when the IMC split off from the Division of Workers' Comp. She touched on the State policy that Mr. Smith mentioned the Legislature brought up about concerns about vacant position. The 2000 Budget Act contains a control section that required DIR and 17 other State Agencies to eliminate a total of 1,736 positions. For DIR it was 31. Subsequent to this, DOF issued budget letters to indicate that in addition to eliminating vacant positions and taking that review, originally it was the larger departments identified by a thousand or more employees and DIR has about 2,800. DOF now changed the scope to look at departments with 300 or more positions.

This year DOF said they are not only going to eliminate positions that they looked at last year, but that they are going to continue to look at positions. They just finished a drill where they identified positions in most of the State's departments that should be eliminated or could be eliminated or identified as excess positions. In addition to this, a Government Code Section was changed this year to require (previously) Government Code Section 12439, to enforce that if a position was vacant from October 1st through June 30th of any fiscal year, it would be automatically eliminated by the State Controller. That has been changed to where if any position is vacant for any six months, any six pay periods, the position will be eliminated by the State Controller's office and it becomes effective July 1, 2001. However, since it talks about prior years, it is effective now. Ms. Duek talked about this with Dr. Allan McKenzie because DIR and all State Agencies will have to keep a close watch of all vacant positions.

She stated that as far as the IMC is concerned, it is a fairly small organization within DIR. Currently, with the changes in the authorized position, we are standing with 36 authorized positions out of 2,800 that DIR has. During this time frame that she talked about (nine to ten years), there had been four significant pieces of Legislation, including the 1989 Reform, the 1993 Reform, the Workers' Comp. Fraud Bill that required the IMC to do some regulations and enforcement on advertising for doctors. In some cases, instead of filling positions, they had to hire consultants to do some of the work because they had deadlines and complex requirements.

Two years ago, the IMC did a BCP to eliminate 12 positions. The number of QMEs and panels and the changes in the Legislation that occurred since then have reduced the number of staff that was required and increased the number of studies that the Council was required to do. It was a significant reduction going down from 53 positions to 41. The latest reduction brought IMC down to 36.

She reported that DIR will continue to monitor vacant positions. There will be an automatic reduction and it will be very difficult to get those positions back if you are unable to justify them and based on whether one is a hard to recruit position or late enactment of the budget. Those are the only two specific reasons why DOF would allow DIR to re-establish positions that are vacant for more than six months. Ms. Duek commented that DIR is familiar with what they have to do. She believed the 36 positions is appropriate for the work that is now being done and if the three positions are acquired, that 39 positions will be the level that the IMC needs to get its work done with the new mandate.

Dr. Richard Pitts asked if anyone had questions for Mr. Smith or Ms. Duek.

Dr. Marvin Lipton wanted clarification that if a vacant spot is not filled for X number of months, the spot is eliminated. He expressed concern that when filling a position, the right salary and security have to be considered, and if we are not in the position to give them a reason to take the job due to circumstances, then we will lose the position and cannot hire for the spot.

Ms. Duek responded that if it is a "hard to recruit position", DIR will have to develop a policy on how they will document that. She stated the position will not be lost until the subsequent year. She continued stating that if itís been vacant for six months and itís filled on the seventh month, they will try to eliminate it on July 1. If itís filled and we can document that it was hard to recruit, she did not feel it would be a problem keeping the position.

Dr. Allan MacKenzie asked whether the IMC can assume that once you requested the position and itís held up in Personnel for weeks and months, which had been a problem in the past, that the six-month meter would not be ticking at that time.

Ms. Duek clarified that it is ticking because the State Controller is not looking at DIR's operation but rather the payroll. What we have to do is find a way to move the paperwork faster so that it does not delay people being hired. She commented that if you have a candidate and the person is qualified for the job, it should be filled without paperwork being the reason for losing the position.

Mr. Carl Brakensiek suggested to Mr. Smith he use his influence with the Governor to urge him to fill the four or five gubernatorial vacancies as soon as possible.

Mr. Smith responded that a meeting is scheduled with the Appointment Unit.

Ms. Rebecca Cohn asked about additional workers' comp reform in the next Legislative session and the impact that might have on both the IMC and DIR and how it is going to impact positions. Ms. Duek responded that when the 1993 Reform passed, there was additional workload for a lot of divisions within the DIR and that it was allowed to put in a BCP that addressed that workload.

Dr. Lipton asked if the Administration recognized the quality of QMEs being questioned, that perhaps the problems may be that presuming treating physician being correct and accurate, and the physician not having real knowledge of a QME that may be an explanation or cause the perpetuation of some of the problems.

Dr. Pitts stated that the Council has a number of mandates that are articulated well by Ms. Patsi Sinnott. They are education and qualifications of QMEs, QA functions, monitor changes as new mandates are given, and an effort for the IMC to take on the bigger role of educating treating physicians which means our role is going from 4,500 physicians to doing something for maybe 100,000 physicians. He said that in his experience when a BCP is submitted by this group, that it is submitted in good faith and honesty and when there are others factors, the vacancy is approved. He gave the example of the Council having vacant positions but not being able to get the paperwork out of Personnel because of mechanical issues such as duty statements. He informed Mr. Smith that there was some confusion about IMCís relationship in terms of what the IMC could do for the Administrator of DIR and asked him to discuss what he sees that the relationship is and what he wants from IMC and how he would support the IMC.

Mr. Smith felt that the fundamental problem is residual from the last Administration where for a number of years the Council was under attack. He stated that it was no longer true but that it will take priority at an administrative level inside DIR to correct that. Dr. Pitts stated that our organization is committed to streamlining things such as using the web for interactive education and registrations. It is frustrating that the IMC would like to do its job and get approvals but then nothing happens. Mr. Smith responded that DIR will try to resolve the problem with an interactive website on which transactions can be made.

Dr. MacKenzie re-enforced what Director Smith said about IMCís darkest hour when it was under the gun. It was difficult getting the information IMC needed from the last Administration but Ms.  Duek helped by showing IMC where it stood financially and what needed to be done. She not only helped us to understand IMC's budget but showed where the dollars really were.

Dr. Ira Monosson thanked Mr. Smith and Ms. Duek for coming and for the expressions of assistance that they put forth this morning.

d. Legislative Update:

Mr. David Kizer gave an update of the Legislative bills for which a list was included in the packet. The bills were: AB 1759 was vetoed 9-10-00. SB 2027, no action as of 9-12-00. AB 2799, no action as of 9-7-00. AB 2357 signed by the Governor (not on list), Victims of Domestic Violence Leave Act, for companies with 25 or more employees, employee can not be terminated if a victim of domestic violence if they request or seek medical attention. AB 1785 (Figueroa) was signed by the Governor which pertained to the ADís date of collection standards. SB 1903 (Speier), no action as of 9-19-00, the Medical Information Privacy bill. SB 129, the Personal Information Collection, no action as of 9-18-00. AB 2797, Medical Information Confidentiality, signed 8-31-00 by the Governor. AB 1822, no action as of 9-6-00. SB 32 was passed and signed by the Governor.

    1. DWC Report:

Dr. Linda Rudolph reported that there will be future hearings on the judicial process. She mentioned that the Division is working on a study that is being done by RAND looking at judicial workload and the judicial process to address long standing issues.

3. Education Committee Meeting:

Dr. Walsh thanked Council Members and others for attending the special meeting in August and thanked Dr. Susan McKenzie for her hard work in putting the document together that is in the packet. She commented that they tried to come up with the strongest document that they could put out. The document contains significant changes to how continuing education courses will be evaluated and also has new language on the 12-hour course that QMEs will have to take.

Motion: To approve the draft education programs for qualified medical evaluators and that the regulatory changes be put out for public hearing. Motion: Dr. Walsh. It was seconded.

Action: Motion passes unanimously.

Dr. Walsh stated that there were a couple of renewals for continuing education programs and one new program. The renewal was for the Disability Evaluation Program for Doctors of Chiropractic. The California Chiropractic Association has been giving a program for chiropractic physicians to become QMEs and are renewing their program. The Committee reviewed this and approved.

Motion: To approve the renewal of the California Chiropractic Associationís program for Disability Evaluation. Motion: Dr. Walsh. It was seconded.

Action: Motion passes unanimously.

Dr. Walsh stated there were renewals for continuing education courses by AFIC, CSIMS (taped program), University of California Occupational Health Department, and the American Academy of Disability Evaluating Physicians.

Motion: To approve the renewal for continuing education courses on AFIC, CSIMS, University of California Occupational Health Department, and American Academy of Disability Evaluating Physicians. Motion: Dr. Walsh. It was seconded.

Action: Motion passes unanimously.

Dr. Walsh stated there was a new provider: Northern California Neuropsychology Forum.

Motion: To recommend approval of the new program as a provider. Motion: Dr. Walsh. It was seconded.

Action: Passed unanimously.

4. Fee Schedule Committee Report

Dr. Susan McKenzie stated that the Fee Schedule Committee had an update of the progress of the RFP. The RFP for the data analysis to go to an RBRVS-based fee schedule was posted in August. Written questions were submitted by the bidders on September 11 and she responded to those questions and distributed the Q&A to interested parties. A Bidders Conference was scheduled for September 29. Dr. Pitts asked Dr. McKenzie for the difference between this and the E&M RFP. Dr. McKenzie explained that the first RFP was the E&M, which looked at doing a study of physician work in the workers comp system under the E&M codes. The second RFP is larger in scope and asks for a significant amount of data analysis. Bidders will need to be able to come up with the data to look at modeling and what it means to go to RBRVS and know what the impact will be on various provider groups and payers. The latter is necessary before we can go to RBRVS been of greater interest. Discussion ensued.

    1. Discipline Committee Report

Dr. Ng stated there was nothing to report.

6. Announcements

Dr. Pitts announced that the next meeting will be on October 19, 2000 in Los Angeles.

    1. Adjournment: Meeting adjourned at 11:10 A.M.

Thursday, September 21, 2000

IMC Staff present:

Sandra Abranches Sylvia Martinez

Gerry Evans Julie Okimura

Elizabeth Ignacio Teidi Padua

David Kizer, Esq. Anne Searcy, M.D

Allan MacKenzie, M.D. Larry Williams

Susan McKenzie, M.D.

DWC Staff present: DIR Staff present:

Suzanne Honor, WCC Steve Smith, Director

James M. Robbins Marisa Duek

Linda Rudolph

CHSWC

C.L. Swezey

Members of the public present:

Carl Brakensiek, CSIMS Michael Pulley, Workersí Comp Adv

Rebecca Cohn Donald Prold, MD, CA Assoc. Neuro. Surg.

Linda Coltrin, CA Chiropractic Assoc. Ron Nassif, Fremont Comp. Insurance Group

Diane Harroun, EOS/ReviewCo Jennifer Orosz, HNC Insurance Solution

Bill Hutchins, e-Rehab Peggy Sugerman, CAAA

Doug Hikawa, Priority CompNet David Willit, DC CCA

Richard Knet Ken Young, OPSC