Senate Bill 899: The Bigger Picture

By Fred Lerner, DC, PhD, FACO

I have read the well-written articles by Brian Fennen and Connie Taylor in the July issue of Acupuncture Today. I think they did an excellent job of documenting the literal changes in the law, so I will not repeat them. This article is designed to give the reader my interpretation of what these laws mean to you and your practice.

My perspective comes from treating injured workers in private practice for 25 years. I also helped write some of the disability work restrictions from the last reforms in the early 1990s, and I was heavily involved in previous efforts of reform. I have been a provider for the now-defunct Industrial Medical Council, and I retain that position under the Division of Workers' Compensation (DWC) Medical Unit. I have taught many acupuncturists, medical doctors and chiropractors about the system and how to perform disability evaluation, and I plan to continue to do so. I have also represented acupuncture interests in the California Legislature in workers' compensation matters since 1995.

The legislature has made many attempts over the past 15 years or so to overhaul the workers' compensation system. Most have been on a reactive basis to circumstances, and Senate Bill 899 is no exception. Without a doubt, SB 899 represents the most comprehensive set of changes I have ever seen, and I find none of it in favor of acupuncture or chiropractic.

Because SB 899 was signed as "emergency legislation," some of the changes became effective immediately upon Gov. Schwarzenegger's signature. Other changes took effect July 1, and the rest go into effect in January 2005. To position yourself to participate well in this system, you should be aware of the meaning and impact of these changes.

1. Medical Provider Networks (MPNs). I believe that 100 percent (or nearly that amount) of employers and insurance carriers will form MPNs. Labor Code 4616 deals directly with MPNs, if you want the details. MPNs will commence as of Jan. 1, 2005. They will be extremely important for any health practitioner to participate in, because there isn't going to be much left outside that system for you to work with. I have provided a partial flow chart of how MPNs work below.

In the "old" system, when an employee was injured at work, he or she could see a "physician" (including an acupuncturist) of their choice after 30 days, or right away if they pre-designated a physician. Pre-designation has been removed for acupuncture, and will not exist for all physicians as of April 20, 2007.

Second, a very popular route for acupuncturists was to associate with health practitioners with large "comp" practices or with workers' compensation attorneys. Most acupuncturists functioned as secondary treating physicians (STPss) and were given referrals/prescriptions for 12 visits a month every month. This method contributed to a lot of the abuse in the workers' compensation system, and will effectively cease to exist with the advent of the MPN, because the injured worker will have to see an MPN practitioner first, and it will be very difficult for the injured worker to leave the MPN.

While the rest of the old system will remain for employers who do not have an MPN, don't count on this as part of your practice. The cost savings to employers will mainly be realized through the MPN system, so almost everyone will want to have one.

Employers and insurance carriers are forming physician MPN panels right now. Some companies will form their own, while others may "buy" a list of practitioners from an existing network.

Diagram showing medical provider networks. - Copyright – Stock Photo / Register Mark The bottom line: If you plan on seeing workers' compensation patients, you are going to have to belong to an MPN. The more networks you are in, the better off you'll be.

2. The Acupuncturist as a Primary Treating Physician (PTP). If the new law goes unchanged, you will probably not often function as a PTP. Why? According to Section 4616.3(b), an injured worker can choose a physician of his or her choice in the medical provider network after seeing an MPN provider first. The employer (insurance carrier) arranges that first appointment. While it is technically possible, a licensed acupuncturist will most likely not get to function as the PTP within an MPN. Besides the perennial "mis-belief" that acupuncturists aren't qualified to manage a case, the biggest snag is still that acupuncturists cannot address disability. That has real impact in that you can't directly address whether an injured worker can be totally disabled, partially disabled, return to work status, etc. An acupuncturist would have to refer the worker to another physician in the MPN to address that problem. In effect, the other physician would be managing the case, and would function as the PTP. Disability is a very expensive part of the system, so it will likely be closely monitored in the MPN.

The disability restriction has truly made "second-class citizens" out of acupuncturists in the workers' compensation system, and it is something I and a few others have fought to eliminate for years. For now, you will have to depend on other physicians to manage at least that aspect of the case.

The bottom line: You will probably not be able to manage your patient's case in an MPN, although according to the law, you will. Case management will likely be controlled by medical doctors, unless we can remove the disability restriction.

3. The Acupuncturist as a Qualified Medical Evaluator (QME). We have fought for years to retain the right for acupuncturists to be QMEs in the system. This was retained with SB 899, but it is unlikely that acupuncturists will get to perform QMEs that often, if at all, under the present system. Here's why:

First, virtually all of the QME evaluations will be done on a panel basis as of Jan. 1, 2005. Under the old system, panels existed as well, but attorneys and adjusters were also free to choose their own QMEs. Not anymore.

Panels work with either the patient, the patient's attorney (if they have one) or the adjuster requesting a QME. That party gets to pick the specialty of the QME. How often will that party will pick an acupuncturist? Probably not very often.

Second, when the chosen specialty is acupuncture, a three-member panel is issued and sent to both parties. Both sides can veto one of the three panel member, with the remaining member being the QME who does the evaluation, or one side can veto a member, and the other side gets their choice of the remaining two members.

In my opinion, if you manage to get through that and become the QME, it is roughly equivalent to winning a lottery ticket. When it is time for you to address disability in the QME, guess what - you can't! The IMC promulgated a poor fix for this: Under Rule 32(d), when an acupuncturist performs a QME, he or she must refer out for a consult to another QME, who will address the disability issue. This would suggest that insurance company now has to pay for two QMEs, but there are no laws that require the insurer to pay for the second QME. I know of one case in which the insurance company complained, and a judge instructed the worker to obtain a new panel from a different specialty, thus negating the utility of an acupuncture QME. This is a poor and dangerous precedent for the acupuncture profession, should it be allowed to continue - all brought on because acupuncturists can't address disability.

4. The ACOEM Guidelines. If you are treating injured workers, no doubt your practice has greatly suffered from these guidelines. Based on several new laws from SB 899, treatment is based solely on ACOEM. In fact, the ACOEM Guidelines were never intended to serve as a blueprint for utilization review. This was disclosed in a letter to Sen. Richard Alarcon from ACAOM Executive Director Barry S. Eisenberg, CAE, on March 22, 2004. I quote: "... our guidelines are not intended to serve as mandates or decrees." Yet that is precisely what has happened. Some acupuncturists have shut down their practices completely, and almost everyone is feeling a significant pinch.

5. The California Workers' Compensation Institute (CWCI) Study. I just received a study summary regarding CWCI on acupuncture. The Commission on Health and Safety and Workers' Compensation asked CWCI to provide an analysis comparing pre-ACOEM acupuncture utilization to a six-visit cap on acupuncture services - as if things weren't bad enough! If introduced by a bill and passed into law, this would mean six visits for the life of an injury claim. Right now, due to our efforts the past two years, we have held off a cap on services, whereas chiropractic and physical therapy have a 24-visit cap. One would seriously have to question the utility of six acupuncture visits for an injured worker.

Solutions We absolutely need to come together as a team. This means several things:

Politically: If you want to retain your patients' rights to have access to you for work injuries, it's time to commit. You need to contribute time and money. Regarding money, you must contribute to a political action committee (PAC). Acupuncture associations who have a registered PAC include CSOMA and CCAA (the California Certified Acupuncture Association). AIMS (Acupuncture and Integrated Medicine Specialists) is working on the formation of a PAC. A few other organizations may follow. I apologize if I have left anyone off the list. This is not tax-deductible, but you must invest in your own future through political action. SB 899 legislation affects all practitioners, whether or not you treat workers' compensation patients. You must invest in effective political action now.

Regarding time, you will need to write letters to key legislators, find the assembly member and senator in your district, go to a "rubber chicken" dinner/fundraiser and/or meet these people in their offices. These activities are best done in a coordinated manner, hence the team approach. Acupuncturists must protect, promote and integrate themselves with other health providers in order to advance the profession.

Acupuncturists must fight against some very powerful groups in the current climate, such as the California Medical Association and the insurance lobby. These groups are well-financed and well-represented in Sacramento. Acupuncturists are not. You must organize yourselves and fund legislative representation as well as grassroots lobbying.

Academically: Right now, ACOEM is determining treatment parameters. The administrative director, Andrea Hoch, will have to form new guidelines, per Labor Code 5307.27. We must work with ACOEM to update its guidelines with all the research evidence we can gather, and submit it to Ms. Hoch for her consideration. To this end, I emphatically support the work of the Foundation for Acupuncture Research (FAR), under the leadership of Richard Esquivel, LAc. They are working very hard to accomplish this, and they can use all the support they can get, both time-wise and financially. To reach Richard, please e-mail him at .

Professionally: If you are happy being relegated to the role of a secondary provider, that's your choice; however, the Business & Professions Code states that you are a primary health care profession, and many acupuncturists would like that to remain. As a profession, acupuncture needs to continue to upgrade itself and remain primary care. Many are divided in their opinions, which surfaced at the Little Hoover Commission hearings, but that perception proved very costly with SB 899 and will continue to be so unless and until acupuncture upgrades.

We must all work hard to reacquire the injured worker's rights to utilize Chinese medicine. We are all on the verge of being rather peripheral participants if you read the intent behind SB 899. Your authorization for treatment is being denied right now. Patient access to acupuncture and Oriental medicine treatment is being denied right now. You are being discriminated against. Get involved right now. Your actions now will determine your tomorrow. Let's all help each other, as much as we can and more than we ever have.

Click here for previous articles by Fred Lerner, DC, PhD, FACO.

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