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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