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 ----------------------------------------------------------------- |Author: |Cooley | |-----------+-----------------------------------------------------| |Version: |May 16, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |Yes |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Gideon Baum | | | | ----------------------------------------------------------------- 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 AB 2086 (Cooley) Page 2 of ? 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 AB 2086 (Cooley) Page 3 of ? 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 AB 2086 (Cooley) Page 4 of ? 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 AB 2086 (Cooley) Page 5 of ? 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. AB 2086 (Cooley) Page 6 of ? 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 AB 2086 (Cooley) Page 7 of ? -- END --