Neuropsychologists and the AB 1542 Veto

A revision of the QME regulations was approved by the Office of Administrative Law in August 2015. One controversial part of these new regulations was the removal of neuropsychology as a designated QME specialty. Labor Code Section 139.2 provides the statutory basis for identification of QME specialties. After more than 22 years of recognition, the Division decided that based on the lack of recognition of that specialty by the statutorily identified entity, the Administrative Director felt required to remove the classification. A legislative solution to enable the Administrative Director to reinstate the specialty panels for neuropsychology was set forth in AB 1542. However, the Governor vetoed the bill.

We’ve asked Steve Cattolica, the lobbyist for the California Society of Industrial Medicine (CSIMS), which backed AB 1542, what happened to derail this bill.

Q. What is a neuropsychologist?

Cattolica: According to the Brain Injury Association — A neuropsychologist is a professional who specializes in understanding how the brain and its abilities are affected by neurological injury or illness.

According to the National Academy of Neuropsychology, “[a] clinical neuropsychologist is a professional within the field of psychology with special expertise in the applied science of brain-behavior relationships.” In other words, a neuropsychologist has special training to evaluate and help those whose cognitive issues are the result of concussions, strokes, traumatic brain injuries and similar physical head and spinal cord traumas.

Q. Why is it important that a neuropsychologist examine an injured worker with a traumatic brain injury or cognitive deficit?

Cattolica: They are specially trained to do so, whereas a general psychologist has practically no training in testing for, evaluating and treating cognitive issues.

There is a vast difference between what psychologists do and what neuropsychologists do. Psychologists in the work comp setting typically evaluate, diagnose, and treat behavior and mental processes. On the other hand, as addressed in our response to the previous question, a neuropsychologist has special training and expertise in the applied science of brain-behavior relationships. A neuropsychologist is trained to evaluate and help those whose cognitive issues are the result of concussions, strokes, traumatic brain injuries and similar physical head and spinal cord traumas. General psychologists are not.

It is important to note that Business and Professions Code Section 2936 adopts the “Ethical Principles of Psychologists and Code of Conduct” published by the American Psychology Association (APA) and which the statute defines as the standard of care for their profession.

Within the APA’s Principles and Code is Section 2 — Competence. Subsection (d) states, in relevant part, “When psychologists are asked to provide services to individuals for whom appropriate mental health services are not available and for which psychologists have not obtained the competence necessary, psychologists with closely related prior training or experience may provide such services in order to ensure that services are not denied if they make a reasonable effort to obtain the competency required by using relevant research, training, consultation or study.”

In other words, a brain-injured worker cannot be evaluated by a general psychologist unless he/she has “closely related prior training or experience” and only if that individual makes a “reasonable effort to obtain the competency required…”

Q. The Governor states in his veto message that the Board of Psychology needs to designate neuropsychology as a subspecialty. Why do you believe the Governor got it wrong?

Cattolica: The Governor’s statement is inaccurate because no professional licensing board, other than the Board of Chiropractic Examiners, recognizes any specialties or subspecialties except with regard to a physician advertising his or her board certification status.[fn1] The Medical Board of California does not recognize any medical specialties or subspecialties for scope of practice issues, nor does the Osteopathic Medical Board of California. To our knowledge, no health care licensing board has ever asked the Legislature to give it authority to recognize separate specialties and subspecialties.

In California, health care professionals — whether they are medical doctors, osteopathic physicians, psychologists, chiropractors, podiatrists, dentists, etc. — receive a generic license to practice within the scope of their professional training. The Medical Board of California licenses medical doctors as “physicians and surgeons,” not as orthopedic surgeons, psychiatrists, internists, neurosurgeons and the like. For the same reason, the Board of Psychology only issues a generic license to all psychologists; it does not issue one license to clinical psychologists and another to neuropsychologists.

At present, board certification is not required to practice clinical neuropsychology anywhere in the United States. The two accrediting bodies identified in AB 1542 — the American Board of Clinical Neuropsychology and the American Board of Professional Neuropsychology — are the only nationally recognized certifying bodies for neuropsychologists.

Notwithstanding the fundamentals discussed above, to the extent that the Board of Psychology can comply with the Governor’s ultimatum, it has already done so in that it does recognize the American Psychological Association and the specialty of clinical neuropsychology is recognized by the APA and the Canadian Psychology Association.

Q. The Governor further states that AB 1542 would undermine the authority of the Division of Workers’ Compensation. What was his reasoning and why do you disagree with it?

Cattolica: We will not begin to speak for the Governor and we are even less inclined to speculate on his reasoning. We can only offer the California Constitution as the source for defining the relationship between the legislature and the Division of Workers’ Compensation. We believe that the Governor’s statement does not comport with this constitutional relationship.

Under Article XIV, Section 4, of the California Constitution, the Legislature has plenary power to establish the workers' compensation system and any policies thereto pertaining. The Administrative Director may only adopt rules and regulations that are consistent with, and implement, the policies established by the Legislature. The Legislature, in approving AB 1542, would establish (actually re-establish) a policy of recognizing neuropsychologists as a separate category of Qualified Medical Evaluator (QME). It is immaterial that the AD may currently have a different policy.

Q. How would AB 1542 bring about cost savings to the workers’ comp system?

Cattolica: It is not so much that AB 1542 would bring about cost savings as much as it would have prevented significant new costs. One must keep in mind that AB 1542 was meant to maintain a public policy that had worked well for employers, injured workers and the dispute resolution system for more than two decades. Reinstatement was the status quo, not a new program or cost.

There are several contributing factors to the costs that are now unavoidable.

Some background may be helpful to understand this situation. We met with DIR and DWC staff at least twice to be sure the agency understood the importance of re-establishing neuropsychologists as Qualified Medical Evaluators (QME).

At the initial meeting in May of 2015, the Division gave October 1 as the original date for its QME regulations to be implemented. There was consensus among those at the meeting that this date would allow AB 1542 to become law (as an urgency measure) and thus the Division could assure maintaining access to neuropsychologists without interruption or added costs.

After AB 1542 passed the Assembly on its Consent Calendar, the Division unexpectedly moved the implementation date up to September 1, a date that virtually guaranteed that the bill would not be signed before access to neuropsychologists was eliminated and the DWC would incur the unnecessary costs of implementing those regulations.

Next, after the new implementation date was announced, we met again with DIR and DWC staff. Faced with the prospect of accommodating evaluations for brain injured workers, but having no direct method to do so, the DWC offered shortsighted and mistaken alternatives for obtaining the requisite neuropsychological evaluations. The two alternatives offered by the DWC included:

•  The injured worker obtaining a lawyer who, based on an unlikely agreement from the defense attorney, might decide on a neuropsychologist as an Agreed Medical Evaluator (AME).

•  The injured worker requesting a QME who is a general psychologist, and who, upon discovering the nature and extent of the injuries, could obtain a consultation from a neuropsychologist. The DWC made this suggestion despite the fact that earlier changes by the Division to its regulations (8 CCR, Sections 31.7 & 32) now prohibit such consultations.

It should be clear that obtaining a lawyer is expensive on its face. The costs of litigation are well documented. The Division apparently felt this is a viable alternative because the parties could avoid the panel process and agree on a known neuropsychologist as an Agreed Medical Evaluator. Obtaining an AME takes much more time and the evaluation is more expensive relative to that of a QME. In addition to the inherently higher costs of a litigated claim, this alternative would likely cause more temporary disability payments as AMEs are in high demand and their appointment schedules fill up quickly.

The DWC’s second alternative, expecting a general psychologist as the QME to obtain a consultation, is a non-starter. The Division changed 8 CCR Section 32 to exclude consultations by any QME except an Acupuncturist. In fact, QMEs, when faced with a body system they are not qualified to directly evaluate, are currently instructed to state the situation in their report and recommend that the parties obtain a QME with the proper background and training to address the issue(s).

Unfortunately, the QME in this situation cannot recommend obtaining a panel of three neuropsychologists because the DWC no longer recognizes them and has no way of identifying them within the QME pool. This is circular logic at best resulting in inevitable delays and the inherent added costs linked to such delays.

Additionally, a good argument can be made that a general psychologist might refuse such panel QMEs because these cases could put them in a legal and ethical dilemma based on Business and Professions Code Sections 2960 and 2936 resulting in a violation of the statutory standard of care as defined therein.

According to its own database, there were approximately 633 QME neuropsychology panel requests submitted to the DWC in 2014. There were more than 300 in 2013. These are among the most serious and already costly claims in the workers’ compensation system. The specter of first responders, those in the building trades, farm laborers and many others who suffer brain injuries being told by the Division to hire a lawyer when they may not have intended to; trying to obtain agreement on an AME and waiting for that evaluation; being required to go to the general psychologist QME only to then be required to go elsewhere to obtain the necessary tests and findings — all this was avoidable.

Q. What’s next? What can make the difference next year in getting this legislation enacted into law?

Cattolica: CSIMS and our co-sponsor, the California Psychology Association, as well as all the supporters of AB 1542 will continue to pursue correction of the DWCs elimination of direct access to neuropsychologists. Brain-injured workers deserve the same direct access to specially trained health care providers that Governor Brown provided by signing AB 2127 (Chap 165, Statutes of 2014) which mandates high school athletes be evaluated by health care providers specially trained in head injuries before returning to their sport. California’s injured workers are not second class citizens; they deserve the same direct access.

The difference will be in directly educating the Governor to the public policy issues, higher costs and the extremely serious health implications of eliminating access to neuropsychological care.

Footnote:

1. See Business and Professions Code Section 65 1 (h)(5)(A)&(B). Also see http://www.mbc.ca.gov/Licensees/Specialty Board _ Advertising.aspx. Senate Bill 2036 (McCorquodale), ch. 1660, stats 1990.