Time To Revamp Archaic PIP “Utilization Review System”

On May 3, 2001, the Massachusetts Board of Registration of Chiropractors published “Peer Review Guidelines.”  Those guidelines were to be used by the Board as an “internal management tool in formulating decisions that relate to issues of chiropractic practice.”  In that very same instrument the Board stated that the profession needed to respond positively to the evolving managed health care delivery system. In that very same document, the Board highlighted that one of its responsibilities was to ensure that licensees follow appropriate protocols and criteria in all aspects of the delivery of chiropractic services, including the performance of independent medical examinations and record reviews.

The Board’s Failure to Meet its Own Published Goal Has Resulted in Numerous Complaints Against Massachusetts Chiropractors.

On May 3, 2001, the Board stated that it was responsible for ensuring that licensees followed “appropriate protocols and criteria in all aspects of the delivery of chiropractic services.”  Today, more than 5.5 years later, is it not fair to say that the Board has failed to provide licensees that guidance? Nowhere is the Board’s failure to lead more noticeable than the highly visible personal injury arena. 

In 2001, The Board expressly stated its expectation to monitor the practice of chiropractic through the use of “appropriate protocols and criteria.”  Despite this published purpose, to this day, treating chiropractors must develop care plans for accident victims without such board guidance.  Taking advantage of this “information vacuum,” IME and record review doctors render “opinions,” often generic, citing a sentence(s) from an alleged authority as rationale for terminating benefits.  Even more concerning is that such reviewers will frequently opine, without citing authority, that the patient received too much treatment. When passed to the insurer, these “opinions,” can and have led to Board complaints.

Any counsel representing chiropractors in front of this Board will tell you that it is a timely, expensive and pain-staking situation for the licensee.  The Board secures medical records, bills and reviews the same against the “complaint.” Frequently, the Board will then decide whether the medical records and bills comply with 233 CMR 4.02, and 4.05.  Since the chiropractor’s documentation regulations are comparatively so extensive, the Board, if it so desires, is able to take a typographic error, or a failure to document the time, or other detail of a supportive modality and “create” a case against a licensee.  The chiropractor 

has no “protocol or guideline” to fall back on. In these cases, the chiropractor is a victim of a system fraught with misinformation, no information, and (as promised 5.5. years ago), absolutely no “protocols or guidelines.”

Board of Registration of Chiropractors regulations are not universally applied.  A licensee, completing an IME or record review, is “practicing chiropractic.” (See Board of Registration of Chiropractor’s June 3, 2005, Advisory Opinion)  At a June 15, 2006, public hearing on IME’s and Record Reviews, the Board Chairman stated that almost half of the complaints filed against chiropractors were against chiropractors doing IME and Record Reviews.  Despite that admitted fact, a review of the Division of Professional Licensure’s web site would prove that chiropractors working for the insurance industry somehow are able to escape scrutiny unscathed.  Standards simply are not applied equally.                                                                    

Concerns Regarding Patient Safety and Utilization Review Does Not End With the Licensing Authority.

Auto Parts or Body Parts?

On the surface it would appear nonsensical to include discussion about automobile damage appraisals in a document concerning utilization review; however, one cannot ignore the weight that the current system places on one “inspection” over the other. 

On February 16, 2006, the Commissioner of Insurance approved the proposed revisions involving Section IV Voluntary/Ceded Claims Handling Differential and the Penalties Section of the Performance Standards.  Sections I, II, III and V concerning the handling of the physical damage and Property Damage Liability, No Fault Personal Injury Protection, Bodily Injury Expenses and the Measurements to reflect NAIC requirements.  These performance standards provide considerable insight into the industry and how particular matters are “valued” by the automobile insurance industry.

Section I, Paragraph 7, of the approved standards, Appraisal of Damage and Reinspections state in part that “carriers must have a plan for periodic evaluation of the quality and accuracy of independent appraisers used by carriers.”   Few would argue that this performance standard would seem to safeguard the consumer from inaccurate, or under valued appraisals. 

In Section III, of the same performance standards, the automobile insurance industry addressed No-Fault Personal Injury Protection Benefits Handling. These standards recommend that a “Carrier should establish a plan to maintain a continuing awareness of the disability claimed, the medical treatment, and whether the treatment and medical expenses are reasonable, necessary, and related to the auto accident.”   It continues to state that “any plan must include consideration for arranging timely independent medical examinations, medical bill reviews including but not limited to a determination of usual and customary charges, use of preferred provider organizations, managed care programs, and/or expert medical systems.”  

These standards were approved by the Insurance Commissioner.  The performance standards for the automobile insurance industry require periodic evaluation of the quality and accuracy of independent damage appraisers used by carriers.  Those same performance standards are strangely silent as to whether to evaluate the quality and accuracy of independent medical examiners and record reviewers.  How can it be said that the existing system is safeguarding consumers when assessing the quality of vehicle damage appraisals is given more weight than assessing the quality of physicians examining patients?

Auto Insurers are NOT Set Up to “Manage Care.”

Massachusetts insurance defense attorneys often point to the same standards mentioned above, in defense of their clients’ activities in the handling of Personal Injury claims.   The insurers quickly argue that they are only doing what they are mandated to do, that is, that “carriers should establish a plan to maintain a continuing awareness of the disability claimed, the medical treatment, and whether the treatment and medical expenses are reasonable, necessary and related to the auto accident.”  Defense Counsel argue that these standards require them to perform “timely independent medical examinations, medical bill reviews, including but not limited to a determination of usual and customary charges, use of preferred provider organizations, managed care programs and/or expert medical systems.”                                               

This argument is sound and is supported by language in the “PIP statute” itself.  MGL ch. 90 s.  34M, states in part:

“…The injured person shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required and shall do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due…”

And that…

“no insurer shall refuse to pay a bill for medical services submitted by a practitioner registered or licensed under the provisions of chapter one hundred and twelve, if such refusal is based solely on a medical review of the bill or of the medical services underlying the bill, which review was requested or conducted by the insurer, unless the insurer has submitted, for medical review, such bill or claim to at least one practitioner registered or licensed under the same section of chapter one hundred and twelve as the practitioner who submitted the bill for medical services…”

Well then, automobile insurance companies are correct in coordinating such reviews, right?   Right.  But, we now know that there is no requirement for monitoring the doctors assessing the reasonableness and necessity of a particular patient’s care.  In short, there is no “quality assurance monitoring” of physicians that automobile claims adjusters rely upon when deciding to “cut-off” a patient’s PIP benefits. Something must change.

Most automobile insurers, will contract with a separate, unregulated entity to assign reviewers and examiners. Most if not all of these companies are not headed up by a physician.  There is no oversight as to what physicians are placed on their panels.  Managed care in Massachusetts is markedly different.

Companies coordinating such “examination” and “peer review services” for Massachusetts automobile insurers include, at least:

Quality Medical Evaluations, Inc., 110 Turnpike Rd., Suite, 204, Westboro, Massachusetts. The President of the company is listed as Mr. Joseph M. Quaranto.  A review of the Board of Registration in Medicine and the Board of Registration of Chiropractors fails to list Mr. Quaranto. It would appear that any quality assurance or credentialing of medical doctors or chiropractors would be led by a lay person.                                                    

Scope Medical, LLC, 62J Montvale Avenue, Stoneham, Massachusetts. This company list Katherine S. Jordan and Kathleen M. D’Amore, as its Managers. Upon a review of both Board of Registration in Medicine and the Board of Registration of Chiropractors’ Web site, it appears that neither Ms. D’Amore, 

or Ms. Jordan is licensed physicians in the Commonwealth of Massachusetts.

Soft Tissue Solutions, LLC, lists its address as 32 Pelican Drive, Walpole, Massachusetts. Maryann Falvey is the president of Soft Tissue Solutions, a consulting organization that provides adjuster education, risk assessment and expert opinions on soft-tissue injuries to local, regional and national automobile insurers. Maryann has served as a multi-line casualty adjuster, fraud and litigation specialist.  See Dynamic Chiropractic, May 22, 2006, Volume 24, Issue 11.  Ms. Falvey is not listed as a physician Member by either the Massachusetts Registration of Chiropractors or Medicine.

Northeast Medical Evaluations, Inc. lists its office at 83 Cambridge Street, Burlington, Massachusetts. This company lists its President as Mr. Philip M. Bibbo, and Treasurer, as Mr. Joseph S. Smalarz. Neither of these gentlemen is listed as Massachusetts physicians.             

Managed Care entities retain Medical Directors to oversee utilization and quality of care concerns.  Allen J. Hinkle, M.D., is Tufts Health Plan’s Senior Vice President and Chief Medical Officer.  Dr. Hinkle is responsible for medical management and clinical services for Tufts Health Plan. Roberta Herman, MD
is the Chief Medical Officer and Senior Vice President of Health Services, for Harvard Pilgrim Health Care. Not to be out done, John Fallon, M.D., is the Senior Vice President, Chief Physician Executive, for Blue Cross Blue Shield of Massachusetts. 

Managed care insurers all have rigid credentialing procedures for their physicians. Automobile insurers, unlike managed care insurers have no credentialing process for physicians completing IME’s and record reviews.  Automobile insurers, like managed care insurers, perform utilization and quality reviews on a case by case basis.  Unlike the aforementioned Managed Care insurers, automobile insurers have no medical oversight of such activities.

Patient Protection for Individuals involved in Car Accident?

Largely due to overwhelming public sentiment, the Massachusetts managed care industry, and its utilization review processes, are both highly developed and regulated.  Massachusetts Automobile insurance companies, and their paid, “utilization reviewers” are neither.  The Massachusetts’ Board of Registration of Chiropractors in its “Peer Review Guidelines” state that it expects that chiropractors will voluntarily follow said guidelines “in order to protect and preserve public confidence in these utilization review mechanisms.”

As more clearly described below, voluntary guidelines fail because it appears that when Board Members complete record reviews for insurance companies, they do not cite “currently accepted literature” in supporting their opinions. Evidently, “leading by example” is not monitored at the Board of Registration of Chiropractors.

Managed care is different. The Legislators, in drafting MGL ch. 176O, and, in regulating the managed care industry, actually created a separate office called, the Office of Patient Protection. See MGL ch. 111 s. 217. Patients involved in automobile accidents in Massachusetts have their initial benefits determined by unregulated and unknown “physicians.”  Victims of Massachusetts automobile accidents do not have any formal appeal process.  Victims of Massachusetts automobile accidents do not have the right to an external review of their case. The unfortunate individuals injured in automobile accidents in the Commonwealth of Massachusetts need “protection.”

The Office of Patient Protection develops regulations and implements new statutory provisions of M.G.L. Ch. 176O. The Office governs managed care carriers' internal grievance procedures, details certain guarantees of continuity of care, specialty care referral and coverage, and establishes a process for obtaining an independent external review where coverage is denied based upon a medical necessity determination. The personal injury protection system lacks such governance and oversight.

Through efforts of such leaders as Nancy Achin-Audesse, the Executive Director of the Board of Registration in Medicine, in 1996, that Board implemented the first in the Nation, physician profiling system.  This system provides the consumer the ability to access information about a provider’s malpractice history, criminal history and hospital discipline history via the internet.

Following the leadership of the Board of Registration of Medicine, the Board of Registration of Chiropractors now publishes “Board discipline” histories of individual chiropractors.  As outlined in much further detail below, public disclosure information is compromised if all cases do not receive equal scrutiny. 

In a June 15, 2006, public hearing on IME (Insurance Medical Examinations) and Peer Review/Record Reviews, the current Chairman of the Board of Registration of Chiropractors, stated that almost half of complaints received by the Board involved IME and Record Reviews. As stated earlier, it appears that chiropractors paid by the automobile insurance companies do not receive formal discipline by current Board members.

The message sent to the public is that it is fair and just to have different standards and expectations for treating chiropractors than for chiropractors examining patients for automobile insurance companies. It appears this way because chiropractors evidently receive far less scrutiny from the licensing authority when practicing chiropractic at the request of automobile insurance companies.

Oversight and Accountability.

In drafting and ultimately implementing MGL ch. 176O, the legislators and Governor, created a number of processes, tools and committees to oversee the adverse determinations, complaints against providers and quality of care rendered to manage care patients. The Regulations were drafted very particularly to ensure that the Office of Patient Protection, did not overlap, or duplicate efforts of the Managed Care Bureau, or the Commissioner of Insurance. Here is what the Office of Patient Protection does:

(1) administer and enforce the standards and procedures established by sections 13, 14, 15 and 16 of chapter 176O, and to promulgate regulations therefor. Such regulations shall protect the confidentiality of any information about a carrier or utilization review organization, as defined in said chapter 176O, which, in the opinion of the office, and in consultation with the division of insurance, is proprietary in nature

(2) establish a site on the internet and through other communication media in order to make managed care information collected by the office readily accessible to consumers. The internet site includes such information as a health plan report card developed pursuant to MGL ch. 118G s. 24,, and compares by health insurer, the percentage of premium dollars spent on health care services, versus “over head.”

(3) assist consumers with questions or concerns relating to managed care, including but not limited to exercising the grievance and appeals rights established by sections 13 and 14, of said chapter 176O;

(4) monitor quality-related health insurance plan information relating to managed care practices;

 (5) regulate the establishment and functions of review panels established by section 14 of chapter 176O;

 (6) periodically advise the commissioner, the managed care oversight board established by section 16D of chapter 6A, the joint committee on health care and the joint committee on insurance on actions, including legislation, which may improve the quality of managed care health insurance plans.  See MGL Ch 111 s. 217

It is time that Massachusetts citizens involved in motor vehicle accidents have a similar “safety-net.”   The existing PIP utilization review system fails to provide the patient with any information about how to assess whether the physician that is examining him/her was selected, or the actual qualifications of that doctor.  The patient has no formal appeal process, and has no right to an external review by an impartial physician.  The Massachusetts motoring public has absolutely no information on the utilization and quality care programs established by automobile insurance companies.  Such information, if made available to the public, could dramatically impact which insurance company an insured selects. 

Utilization Review in Managed Care and Personal Injury Protection Matters

Perhaps a comparison between the utilization review systems in managed care and automobile insurers might prove enlightening.

The utilization review process for managed care is highly developed.  Massachusetts law mandates that an insurer or a utilization review carrier have a written plan, under the supervision of a physician and staffed by appropriately trained and qualified personnel. The law also states that a managed care insurer shall include a documented process to (i) review and evaluate its effectiveness, (ii) ensure the consistent application of utilization review criteria, and (iii) ensure the timeliness of utilization review determinations.  See  MGL ch. 176O s. 12(a)

Massachusetts automobile insurers have: 1) no physician supervision; 2) no written utilization review plan; 3) no process to review and evaluate effectiveness; 4) no tool to ensure the consistent application of utilization review criteria.

ADVANTAGE: MANAGED CARE.

The aforementioned laws mandate that Massachusetts managed care insurers or their utilization review organization adopts utilization review criteria and conduct all utilization review activities pursuant to said criteria. The criteria shall be, to the maximum extent feasible, scientifically derived and evidence-based, and developed with the input of participating physicians, consistent with the development of medical necessity criteria pursuant to the provisions of section 16. Utilization review criteria shall be applied consistently by a carrier or a utilization review organization. See MGL ch. 176O(a)

Massachusetts automobile insurers contract with unregulated entities that contract with physicians of unknown quality to render medical decisions. Participating providers are not involved in the creation of any criteria because no consistent criteria exist.

ADVANTAGE:  MANAGED CARE

Managed Care law states that adverse determinations rendered by a program of utilization review, or other denials of requests for health services, shall be made by a person licensed in the appropriate specialty related to such health service and, where applicable, by a provider in the same licensure category as the ordering provider. See MGL ch. 176O(a)

In this area, MGL Ch. 34M, has proven challenging because a Courts have been unable to reach consensus as to whether it is proper for physicians licensed under different sections of MGL ch. 112, are permitted to rendered decisions as to medical necessity, reasonableness of care, and other such determinations.

ADVANTAGE:  NEITHER.  (As an aside, why have both the managed care and automobile industries fought so strongly against “actual peer review?”   It would seem logical that a practitioner similarly trained and educated would be most qualified to question decisions made by a treating “physician.” Perhaps, MGL ch. 152, and the Workers Compensation laws’ “same school” standards should be applied to all)

In Managed care, a carrier or utilization review organization makes an initial determination regarding a proposed admission, procedure or service that requires such a determination within two working days of obtaining all necessary information. In the case of a determination to approve an admission, procedure or service, the carrier or utilization review organization notifies the provider rendering the service by telephone within 24 hours, and provides written or electronic confirmation of the telephone notification to the insured and the provider within two working days thereafter. In the case of an adverse determination, the carrier or utilization review organization notifies the provider rendering the service by telephone within 24 hours, and provides confirm ation of the telephone notification to the insured and the provider within one working day thereafter. See MGL ch. 176O(a)

In the automobile insurance “system,” even when IME’s are performed, there can be a lapse of time between examination and notification..  Perhaps even more concerning is that insurers frequently feel compelled not to send the results of the IME to the treating physician.  Automobile insurers, oftentimes, will inappropriately cite “confidentiality laws” as the reason for not doing the same.  This ill-advised refusal (since even HIPAA, the often misunderstood, Federal Law governing “protected health information” permits disclosure for “payment, treatment, and health care operations.”) has added to the adversarial relationship between automobile insurers and health care providers because the provider has no direct source to obtain information to refute allegations made about his/her treatment, i.e., his or her practice.

Even when time limits are expressly mandated in law, the Courts have been reluctant to enforce the same.  MGL ch. 90 s. 34A,M, Bohorquez v. Metropolitan Prop and Cas. Insr. Co., 2000 Mass App Div 226  Armed with such decisions, it would appear that insurers frequently proceed slowly in investigations.  The cynic might suggest that the process, at times taking as long as several months, and years in the extreme, permits funds (and interests) to be retained in the insurance company’s accounts longer then actually the should.

ADVANTAGE:  MANAGED CARE

Managed care law mandates that a written notification of an adverse determination include a substantive clinical justification consistent with generally accepted principles of professional medical practice, and shall, at a minimum: (1) identify the specific information upon which the adverse determination was based; (2) discuss the insured's presenting symptoms or condition, diagnosis and treatment interventions and the specific reasons such medical evidence fails to meet the relevant medical review criteria; (3) specify any alternative treatment option offered by the carrier, if any; and (4) reference and include applicable clinical practice guidelines and review criteria See MGL ch 76O(a)                           

Personal Injury Protection (PIP) patients and providers have never been afforded any “relevant medical review criteria.”  Patients and their treating providers, when faced with coverage denials, often face completely different and seemingly arbitrary rulings by insurance doctors. (As an example, one well-known, “peer reviewer” will almost universally permit only “12 safe and effective chiropractic treatments. Not once, to this author’s knowledge has that physician ever supplied any supportive authority, i.e., evidenced-based studies to support his “opinion.”) Simply put, there are no clinical practice guidelines or review criteria.

ADVANTAGE:  MANAGED CARE 

The Massachusetts managed care law affords consumers very real and substantive appeal rights.  The managed care law affords the provider to “step in” and pursue the case on behalf of his/her patient. The managed care law affords a “reconsideration” process that is not contingent upon use of the managed care entity’s own internal grievance process, and is outside of the managed care entity’s control. See MGL ch. 176O(a)(b).

Massachusetts automobile insurers have no appeal process.  A provider can always draft a “rebuttal” to the insurer/reviewer; however, any treating provider will emphasis that the response back is almost universal, (i.e., no change in original decision) and frequently will not even address concerns highlighted by the treating physician. 

The lack of any internal review process, or appeal process, leaves treating chiropractors with two options,: 1) accept the decision of the insurance doctor and not get paid for services rendered; or 2) spend considerable time and resources fighting the insurer in court. Judging by the extreme delays in securing even small claims hearing dates, it would seem evident that the judiciary would be a strong advocate for the creation of  any external system of appeal for PIP medical disputes.

ADVANTAGE:  MANAGED CARE.

Managed care law requires that insurance companies compile and submit pre-determined and universal data sets.  This law mandates that the data be sent to the Division of Health Care Finance and Policy, and the Office of Patient Protection.  As stated above, the Massachusetts automobile insurer’s standards are seemingly more stringent for reporting and monitoring vehicle damage appraisers than medical quality.

ADVANTAGE:  MANAGED CARE.

It Can Not Possibly Be This Bad… Can it?

Unfortunately, the answer to that question is in the affirmative.  Treating chiropractors have actually faced discipline when bringing complaints against IME doctors.  In one case, a chiropractor faced discipline when the treating chiropractor brought an IME doctor to the attention of the Board who concluded that a patient was at an end result.  In that case, the treating chiropractor noted that the IME report did not include documentation of all areas the patient complained of injury.  In that case, the insurance doctor, without fully assessing the patient’s injury was able to determine that the patient was at an end result. The licensing authority asked for all medical records. When received, the Board thought it proper to not proceed against the IME doctor, but then disciplined the treating doctor because the medical records forwarded did not meet all the specific mandates of 233 CMR 4.02, 4.05. 

The Board of Registration of Chiropractors’ Mission states that it is established to “protect the public.” Is it accomplishing that goal when it fails to discipline insurance doctors? The effect that such conduct by the Board has on its Members is “chilling.”

By acting in the manner described above, the Board of Registration of Chiropractors has in fact discovered a rather ingenious way to ignore the IME/RR problem in the state The Board can simply dismiss such complaints without prejudice because treating providers, scared of retaliation often refuse to provide the Board copies of their medical records.  The Board can “justify” its ruling because it simply did not have all the information it “needed” to determine whether the IME/RR doctor acted properly.   Given the above, can one blame a treating chiropractor for “cowering in fear” of the licensing authority?

It does not end here.  More egregious examples of the Board’s failures to correct

Disingenuous practices by insurance IME/RR doctors include:

a) A chiropractic physician completing inconsistent IME’s and Record Reviews.  In this particular case, the Board was presented with numerous examples of an IME doctor who documented completing “provocative orthopedic maneuvers, range of motion tests, palpation examination, assessing for myospasms, and documenting the presence (or lack thereof) of subluxations.”  However, when this very same insurance chiropractor “reviewed” his peers’ medical records for automobile insurance carriers; he was able to introduce, “evidenced-based” literature discrediting each and every one of the above tests/findings.  This conduct is the height of hypocrisy. It would appear that this particu lar chiropractor forgot the fact that each “claim” represents a patient. The Board failed to do anything to correct this reprehensible conduct.  The Board of Registration of Chiropractors is not protecting the Massachusetts citizenry.  Docket No. CH-05-006, CH-05-007.

b) On or about June 24, 2006, cases where numerous “canned text” IME reports were presented to the Board of Registration of Chiropractors. These reports showed identical findings.  In the extreme, all tests and ranges of motion were exactly the same.  Once again, no action was taken against such devious conduct.  Protecting the public?

c) The Board was presented with an example of a relationship between a Massachusetts automobile insurer, a “peer review entity,” and a licensed, Massachusetts Chiropractor.  The information provided to the Board was also depicted in two different district court law suits naming both the automobile insurer and the peer review entity, (one of the two also named the chiropractor peer reviewer as a defendant). The facts were as followed: The insurance company’s agent forwards a letter to the provider stating that its computer system has completed an assessment of the case.  The insurer represents that its advanced software program “has evolved to the point where it thinks like a peer reviewer.”   The total bill is then cut and the provider is told that if it does not accept the reduced rate than the “offer” would be retracted and the case referred to a peer reviewer.  The original letters were even so brazen to warn that if that occurred, it was “likely” that the peer reviewer would cut even more money from the provider’s payment.

Boldly, some providers actually challenged the findings of their “computer peer.”  When this occurred, the insurance company retracted the offer and forwarded the case to a chiropractor for review.  In most cases, the “independent peer review” concluded that the treating chiropractor should be paid less.  Unbeknownst to many chiropractors, the “peer” who performed the record review was actually the President and Owner of the software company that rendered the “initial opinion!”  CH-05-009.

Egregious?  Apparently not.  The Board of Registration of Chiropractors took no action on this complaint.  The Division of Insurance did not see that it had any authority to assess the situation.  The “peer reviewer” in that case, you ask? 

He has since been appointed by the Board of Registration of Chiropractors as a “Compliance Monitor” for chiropractors who have encountered disciplinary problems with the Board.  Protecting the Public?

When unchecked, the process worsens.  Chiropractors in the western part of the State have provided this Office with IME’s performed on patients by a doctor not even licensed to practice in the Commonwealth of Massachusetts. Unfortunately, but perhaps, not surprisingly, the chiropractor who treated the patient does not  wish to bring the matter to the licensing authority’s attention. The famous British historian of the late nineteenth and early twentieth centuries, Lord Acton once said: “Power corrupts, and absolute power corrupts absolutely.” Unfortunately, thanks in large part to Massachusetts automobile insurance companies and their paid “experts,” these words resonate true in modern day Massachusetts health care.

Are There Recourses Against Such Conduct?

To date, at least two different District Court Judges, have dismissed actions against IME/Record Review physicians for their conduct in specific cases.  At this time, it would appear that the Courts are not eager to bring these deceptive insurance doctors to justice. As stated above, the Massachusetts Board of Registration of Chiropractors has done precious little to reel-in such outrageous conduct.

If the licensing authority and courts do not act, where else can the public turn to protect itself from such aberrant conduct?  One certainly could look towards the legislators; however, these legislators recently drafted and Governor Romney signed into law, MGL ch. 175 s. 113V.  This law would seemingly provide almost universal protection to those advancing the automobile insurance industry’s position of denying care to automobile accident victims. MGL ch. 175 s. 113V (3)(f) reads:

“… In the absence of fraud or bad faith, an insurer or employee or agent thereof, member of said insurance fraud bureau or an employee or an agent thereof, member of said medical licensing boards or an employee or agent thereof, member of said Automobile Insurers Bureau of Massachusetts or an employee or agent thereof, or other person subject to this section, shall not be subject to criminal or civil liability, and no civil cause of action of any nature shall arise against such person for any information relating to suspected over-treatment or fraudulent insurance transactions furnished to medical provider licensing boards or the insurance fraud bureau, their agents and employees pursuant to this section. Nothing herein is intended to abrogate or modify in any way common law privilege of immunity heretofore enjoyed by any person.”

It would seem that neither the Court, nor the licensing authorities, nor even the legislators have taken a position to support the Massachusetts consumer. Considering the above stated facts, does anyone truly believe that such

conduct deserves protection?

What Next?

MGL ch 175 s. 113V, mandates that “medical licensing boards” receiving funds, as outlined by that law, shall meet at least annually with the Automobile Insurers Bureau of Massachusetts and that “where overutilization of practice or fraud is suspected, the board shall conduct an investigation.”  The law further mandates that if overutilization of practice or professional misconduct exists, disciplinary proceedings shall be initiated. Not only does the law mandate action against fraudulent providers, it would seemingly mandate discipline for “professional misconduct.” In essence, that law goes far beyond legislating against “insurance fraud.”

Mandating such a meeting is not necessarily bad, except, if one uses history as a predictor for the future.  Each year, the Commissioner of Insurance initiates a hearing process to determine the following year’s automobile rates and criteria for categorizing drivers.  Representatives from the Automobile Insurer’s Bureau, the Attorney General’s Office and the State Rating Board present markedly different information.  The striking thing about this entire process is that these three entities all get their figures from the same source, the aforementioned, Commonwealth Automobile Reinsurers, (CARS) It would seem that each entity is able to take information and “slant it” to favor their view point.

Given what has been permitted in the past, who is to ensure that the CARS data presented by the AIB to the licensing boards will be accurate? Who in that mandated process will question the data?  Who in that process will stand up and fight for the unpaid providers? Who in that process will realize that the “utilization review system” used to forge such “numbers” is broken?  Who will finally turn their eyes towards the insurance industry and their paid “experts” and realize that tactics used are intimidating, coercive and misleading, who in that mandated process will stand up for the patient?

Conclusion:

In May, 2001, the Board of Registration of Chiropractors publicly stated its expectation that licensees would follow appropriate protocols and criteria in all aspects of the delivery of chiropractic services, including the performance of independent medical examinations and record reviews.  To this very date, the Board has failed to foster, develop, or adopt any such criteria, or protocol.  Over the years, bolstered by the vacuum created by the Board’s failure to lead, the automobile insurance industry, through their paid “experts” have taken highly suspect steps to deny hundreds, if not thousands, if not tens of thousands of cases, through unregulated, and highly suspect “utilization review” tactics.

Recently, automobile insurers, implemented specific standards to ensure that vehicle damage appraisers were current, accurate and issuing legitimate findings.  Placing the value of metal higher than people, the automobile insurance industry has not implemented a similar system for medical “experts” retained to examine and render opinions on patients injured in motor vehicle accidents. This failure, coupled with the Board’s failure to advance protocols or guidelines, has ultimately led to some of the egregious claims review processes described above. 

The health care system has many problems. In search for solutions and improvements, one must always remember to focus on, and not forget, the most important element in health care, the patient. I would suggest our State, led by the financing of the efforts of the Massachusetts automobile insurance industry and their lobbyist, has lost that focus.

Can the legislators and the incoming administration implement a system to monitor the automobile insurance industry and its paid medical/chiropractic experts?  The answer is, of course, yes. The more germane question is will the legislators and the incoming administration implement new laws and regulations putting an end to such improper conduct by insurers and its medical and chiropractic experts?

The managed care system has created a system of patient safeguards. Managed Care insurers have universally retained Medical Directors to oversee medical coverage issues.  The Workers’ Compensation system (MGL ch. 152) uses “impartial” physicians, from the “same school” to assist administrative judges in rendering coverage/medical decisions.   There are many steps that could be taken to improve the unregulated Massachusetts automobile utilization review system. As in many things in life, the first step, no matter how painful is actually admitting that there is a problem.

On the way to my office this morning, I noticed an old campaign sign by the side of the road, just before an intersection. The intersection, not surprisingly,  permits drivers to go in a number of different directions.  The sign had a very catchy, and evidently, a well received slogan. It simply said: “Together, we can.”  Together, the road to an improved system of review for patient’s injured in accidents can be taken.  Together, we can, the time must be now.

The above comments and material is the sole opinion of Frank E. Biedak, Esq.  Attorney Biedak is a health law attorney, representing numerous Massachusetts health care providers.  For questions related to this instrument, you are encouraged to write to Attorney Biedak, c/o of the Law Office of Frank E. Biedak, P.C., 534 New State Highway, Suite 1, Raynham, MA  02767

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