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
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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
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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.
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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.
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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
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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)
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Opposition
None received
Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086