BILL ANALYSIS Ó AB 2086 Page 1 Date of Hearing: April 6, 2016 ASSEMBLY COMMITTEE ON INSURANCE Tom Daly, Chair AB 2086 (Cooley) - As Amended March 30, 2016 SUBJECT: Workers' compensation: neuropsychologists SUMMARY: Provides a statutory authorization for neuropsychologists to perform the services of a qualified medical examiner (QME) in the workers' compensation system. Specifically, this bill: 1)Contains Legislative findings and declarations concerning the role and importance of neuropsychologists in evaluating permanent disability for injured workers who have experienced brain trauma. 2)Provides that neuropsychologists are among the specialty workers' compensation physicians, as defined in the Labor Code, who may be appointed as QMEs for purposes of evaluating medical-legal issues in the workers compensation system. 3)Specifies that, in order to qualify, the neuropsychologist: a) must be board certified by the American Board of AB 2086 Page 2 Clinical Neuropsychology, the American Board of Professional Neuropsychology, or another certifying board recognized by the Administrative Director (AD) of the Division of Workers' Compensation (DWC), or b) if not certified by a board listed above, must meet specified training and experience requirements, and have served as a neuropsychologist in the capacity of an agreed medical evaluator (AME) at least 5 times. 4)Clarifies that a physician and surgeon can be appointed as a QME is he or she is either board certified by a specialty board recognized by the American Board of Medical Specialties (ABMS), or completed a residency program accredited by the Accreditation Council for Graduate Medical Education (ACGME). 5)Provides that a physician and surgeon who completed a residency training program accredited by a predecessor certifying organization to the ACGME is also eligible to be appointed as a QME. 6)Provides that the bill is an urgency measure, to take effect immediately. EXISTING LAW: 1)Establishes a comprehensive system to provide workers' compensation benefits to employees who suffer injuries or conditions that arise out of or in the course of employment. Benefits include medical care to cure and relieve the effects AB 2086 Page 3 of the injury or condition, temporary disability benefits for injured employees who are unable to work during the period of recovery, permanent disability benefits for injured employees who suffer permanent disabilities as a consequence of the injury or condition, among other benefits. 2)Provides for a formal system of administrative dispute resolution for cases where the employer and employee are not in agreement over any issue associated with the delivery of workers' compensation benefits. 3)Provides for the appointment of a QME to evaluate the injured employee whenever disputed medical-legal issues arise. 4)Specifies the qualifications necessary for workers' compensation physicians to be appointed as QMEs, including with respect to physicians and surgeons, that they successfully completed a residency program accredited by ACGME - the body recognized as the accrediting organization for medical specialty training programs. 5)Authorized, until the adoption by DWC of a regulation in 2015, neuropsychologists to perform the function of a QME is appropriate brain trauma cases. 6)Provides for AMEs, who perform essentially the same functions as QMEs, but who are not selected randomly from DWC-generated lists and instead are selected by mutual agreement of the parties. AB 2086 Page 4 FISCAL EFFECT: Undetermined COMMENTS: 1)Purpose . According to the author, AB 2086 is necessary because neuropsychologists provide valuable input in serious brain injury cases in the workers' compensation system. Neuropsychologists appointed as QMEs have been providing this input in workers' compensation cases for the last 22 years. However, the DWC has recently adopted regulations that repealed the authorization for neuropsychologists to perform QME functions. The bill is intended to override that regulation, and reinstate the opportunity for neuropsychologists to perform QME functions. 2)QME process . When a medical-legal dispute arises, a QME is appointed to evaluate the injured employee. "Medical-legal" does not refer to whether or not a treatment at issue is legally required. There is a separate medical treatment dispute resolution process. "Medical- legal" relates to the legal consequences of medical conditions, frequently the extent to which an injured employee's injuries or conditions are disabling, or whether the injuries or conditions have become permanent and stationary. When there is a dispute on an issue of this nature, a party can request appointment of a QME. The requesting party specifies what sort of expertise is needed to resolve the dispute, and the DWC appoints a panel, from which a single QME is selected. If a neuropsychologist is the expertise required, but only general psychologists are on the QME lists, there is no guarantee that a person with the proper expertise will be the QME. In that case, the under-qualified QME will be forced, with additional expense and delay, to "consult" with a neuropsychologist. No stakeholder group involved in the workers' compensation system has suggested that this would be a desirable result. AB 2086 Page 5 3)ACGME . Currently, ACGME is the accepted entity that accredits medical specialty training programs, and as a consequence the Labor Code refers to completion of ACGME-accredited programs as a basis to qualify to perform QME functions. However, there are practicing physicians and surgeons who completed their residency prior to the establishment of ACGME in the early 1980's, and who could otherwise qualify as QMEs. The bill also seeks to authorize the AD to accept as QMEs those physicians who obtained their specialty training from a predecessor accrediting organization. 4)Prior legislation . Last year, AB 1542 (Mathis and Cooley) was substantially similar to AB 2086, and was unanimously approved by the Legislature. However, the Governor vetoed AB 1542. The Governor's veto message stated: "This bill requires the Division of Worker's Compensation to appoint qualified clinical neuropsychologists as Qualified Medical Examiners. This bill undermines the Division of Workers' Compensation's authority to apply consistent standards when it determines eligible medical specialties for the Qualified Medical Evaluator panel. The Division is not in the position to determine the validity of a physician's qualifications. That power resides with the physician's licensing board. If the Board of Psychology believes there is value in recognizing neuropsychology as a subspecialty, it should do so." It is not clear from the veto message what deficiency AB 1542 suffered from. For example, with respect to physicians and surgeons, current statute recognizes the specialties sanctioned by the ACGME. Similarly, AB 1542 would have AB 2086 Page 6 recognized psychological specialists certified by two specific and nationally respected neuropsychology certifying boards. The bill provided no less specificity or uncertainty for psychology specialists than currently exists for medical specialists. In addition, the veto message suggests that the Board of Psychology should take action to recognize specialists, if it believes there is value in doing so. However, the Medical Board, which licenses physicians and surgeons, does not perform that function with respect to its licensees, and does not define or establish medical specialties. Proponents have committed to working with the Administration to clarify these issues, and find an acceptable methodology for identifying qualified neuropsychologists. REGISTERED SUPPORT / OPPOSITION: Support California Society of Industrial Medicine and Surgery California Psychological Association California Conference of Machinists Western Occupational and Environmental Medical Association (WOEMA) AB 2086 Page 7 Opposition None received Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086