BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 2086 Hearing Date: June 8,
2016
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|Author: |Cooley |
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|Version: |May 16, 2016 |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Gideon Baum |
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Subject: Workers' compensation: neuropsychologists
KEY ISSUE
Should the Legislature permit the Division of Workers'
Compensation to appoint qualified clinical neuropsychologists as
Qualified Medical Examiners (QMEs), as well as revise and
clarify the list of board certification organizations for the
certification of QMEs?
ANALYSIS
Existing law:
1) Establishes a workers' compensation system that provides
benefits to an employee who suffers from an injury or
illness that arises out of and in the course of employment,
irrespective of fault. This system requires all employers
to secure payment of benefits by either securing the
consent of the Department of Industrial Relations to
self-insure or by securing insurance against liability from
an insurance company duly authorized by the state.
2) Requires that the administrative director (AD) appoints
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qualified medical evaluators (QMEs) in each of the
respective specialties as required for the evaluation of
medical-legal issues. In order to be appointed as a QME,
the applicant must pass a written examination and meet
additional requirements specific to each specialty.
For medical doctors or doctors of osteopathy, the applicant
must:
a) Be board certified in a specialty by a board recognized
by the AD and either the Medical Board of California or the
Osteopathic Medical Board of California; or
b) Have successfully completed a residency training program
accredited by the Accreditation Council for Graduate
Medical Education (ACGME) or the osteopathic equivalent.
For psychologists, the applicant must:
a) Be board certified in clinical psychology by a board
recognized by the AD; or
b) Hold a doctoral degree in psychology, or a doctoral
degree deemed equivalent for licensure by the Board of
Psychology from a university or professional school
recognized by the AD and has not less than five years'
postdoctoral experience in the diagnosis and treatment of
emotional and mental disorders; or
c) Has not less than five years' postdoctoral experience in
the diagnosis and treatment of emotional and mental
disorders, and has served as an agreed medical evaluator on
eight or more occasions prior to January 1, 1990.
(Labor Code §139.2)
This bill would:
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) Clarifies that a physician and surgeon can be appointed
as a QME if 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 ACGME.
3) Permit a medical doctor to be appointed as a QME if his
or her residency training program was certified by a
predecessor to the ACGME or the American Osteopathic
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Association.
4) Permit the appointment of a clinical neuropsychologist
as a QME if:
a) The clinical neuropsychologist is by the American
Board of Clinical Neuropsychology, the American Board of
Professional Neuropsychology, or another organization
recognized by the AD.
b) The clinical neuropsychologist is licensed to
practice psychology in this state and has a doctoral
degree in psychology from an accredited university or
college training program, has completed an internship or
its equivalent in a clinically relevant area of
professional psychology, and has at least two years of
experience and specialized training, at least one year of
which is at the post-doctoral level in the study and
practice of clinical neuropsychology and related
neurosciences under the supervision of a clinical
neuropsychologist, and has served as an agreed medical
evaluator in neuropsychology on five or more occasions.
1) Provide that the bill is an urgency measure, to take
effect immediately.
COMMENTS
1. QMEs and Medical-Legal Disputes:
As was noted above, Qualified Medical Examiners (QMEs) are
medical examiners who have taken an exam and met certain
specific requirements that are authorized to conduct an
evaluation of medical-legal issues. Medical-legal does NOT
refer to if an injured worker will or will not receive medical
treatment. Rather, 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 medical-legal dispute, 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
both parties can agree to a single medical examiner, than the
agreed upon doctor, known as an Agreed Medical Evaluator
(AME), is used instead of the QME panel to resolve the
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Medical-legal issues.
Until recently, Clinical Neuropsychologists were included as
being eligible for selection as QMEs. Generally, Clinical
Neuropsychologists were selected for their expertise in cases
involving head trauma. For reasons discussed below, that is no
longer the case. However, Clinical Neuropsychologists may
still be selected as AMEs.
2. AB 2086 and Clinical Neuropsychologists as QMEs:
According to the American Neuropsychiatric Association (ANPA),
clinical neuropsychology is distinct from traditional
psychology due to the focus on understanding brain function.
The ANPA states:
"A clinical neuropsychologist usually holds an advanced degree
in clinical psychology (Ph.D., Psy.D.), and has completed a
clinical internship and specialized post-doctoral training in
clinical neuropsychology. What distinguishes a clinical
neuropsychologist from other clinical psychologists is
knowledge of the brain, including an understanding of areas
such as neuroanatomy and neurological disease?. They use
neuropsychological tests to assess cognitive deficits, and
they are involved in the management, treatment and
rehabilitation of cognitively impaired patients."
As noted above, the DWC may only certify a psychologist if the
psychologist is board certified by the Board of Psychology or
a board recognize by the DWC. Currently, Clinical
Neuropsychology is not a recognized specialty by the Board of
Psychology. Despite this, the DWC recognized Clinical
Neuropsychologists as QMEs until recent regulations removed
Clinical Neurologists from the list of potential QMEs. While
this decision brought the QME regulations in line with
statute, it was met with disappointment from some
stakeholders.
AB 2086 would return the QME process to the prior status quo,
allowing clinical neuropsychologists to be appointed as QMEs.
3. AD Discretion and Amendments from the Board of Psychology:
As noted below, AB 2086 is not the first time this Committee
has heard the issue of allowing clinical neuropsychologists to
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serve as QMEs. In last year's AB 1542, the bill left untouched
the existing discretion on the part of the administrative
director (AD) to recognize board certified specialties, if the
specialty has already been recognized by the California
Medical Board or Osteopathic Medical Board. However, AB 2086
erodes the AD's discretion, instead requiring the AD to
recognize board certified specialties if they are approved by
specified organizations and recognized by either the
California Medical Board or Osteopathic Medical Board.
Similarly, the California Board of Psychology has weighed in
on AB 2086, asking for a different definition of a clinical
psychologist QME than is currently found in existing law. This
call for a revised standard of who is a qualified clinical
psychologist does not directly touch on the issue of whether
neuropsychologists should be QMEs. Nor is it known if the
California Board of Psychology has discussed these amendments
with the Division of Workers' Compensation (DWC) or the AD.
As such, AB 2086 deals with two distinct issues:
neuropsychologists as QMEs and the process for recognizing QME
specialties. The author and the Committee may wish to consider
if it would be appropriate to separate these two issues in
order to simplify the scope of the bill, as well as to allow
the AD and the "House of Medicine", including the Board of
Psychology, to discuss any perceived issues with existing
processes for recognizing QME specialties.
4. Proponent Arguments :
Proponents note that, until recently, clinical
neuropsychologists were eligible for appointment as QMEs.
Proponents further note that clinical neuropsychologists are
trained in understanding neuro-diseases and neuro-anatomy,
differentiating neuropsychologists from traditional
psychologists. Proponents argue that neuropsychologists are
needed to evaluate a number of serious head and brain injuries
including penetrating brain injuries, anoxia/Hypoxia, Diffuse
Axonal Injury, and Coup-contrecoup injuries. Proponents also
argue that denying injured workers access to
neuropsychologists as QMEs will require traditional
psychologists serving as QMEs to contact clinical
neuropsychologists in order to adequately perform their duties
as a QME, creating unnecessary delay and cost for injured
workers and employers.
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5. Opponent Arguments :
None on file.
6. Prior Legislation :
AB 1542 (Mathis) of 2015 was very similar to this bill, and it
was vetoed by Governor Brown. 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."
SUPPORT
California Society of Industrial Medicine and Surgery
(Co-Sponsor)
California Conference of Machinists
California Neurology Society
California Professional Firefighters
California Psychological Association
California School Employees Association
California Society of Industrial Medicine and Surgery
California Society of Physical Medicine and Rehabilitation
Voters Injured at Work
Western Occupational and Environmental Medical Association
OPPOSITION
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