March 2007

Can board members serve two masters?

by Dr. Terry Rondberg

When your insurance claim is denied, do you call on the insurance company's IME to testify on your behalf? Of course not! You know that, since IMEs are paid by the insurance company, their allegiance is going to be to that company, not you.

As noted in a Special Report prepared by the New York State AFL‑CIO and the New York Committee for Occupational Safety and Health, "The first thing to know about a so‑called Independent Medical Examination (IME) is that it is neither independent nor a bona‑fide medical examination. Although IMEs purport to be independent, it is apparent from the pattern of behavior and the relationship of IME doctors to insurance carriers that this is not the case." Simply put, they are, in effect, insurance company employees and, naturally, owe allegiance to their employers.

I'm not suggesting that all chiropractors who perform IMEs are unethical or anti‑chiropractic. But DCs who work for and are paid by insurance companies are, by the very nature of their activity, serving two masters: chiropractic and the insurance industry. Those who wanted to be fair to their chiropractic colleagues would soon find themselves replaced by other DCs with fewer scruples about the process.

Almost all DCs have had run‑ins with IMEs whose reports are used as the basis for cutting or denying claims. You've all experienced cases in which the IME didn't even bother to examine the patient or even all of the records on the case. You know what it's like to have an IME state that your care wasn't "medically necessary" based on the Mercy guidelines. And you've faced IMEs who weren't even practicing DCs.

But an added problem has arisen in recent years. Throughout the country, state licensing boards have being infiltrated by the insurance industry, and many board members derive a portion (if not all) of their income from insurance companies who pay them to perform independent medical examinations.

What happens when a board member's loyal to the insurance industry conflicts with what is best for the public or what is fair for the doctors brought before them? It's not a theoretical question but a real‑life problem faced by many doctors since a large percentage of lawsuits and related or unrelated board complaints stem from insurance companies. In Arizona, the figure was put at 80% after the state association investigated the undue influence the insurance industry has on its board.

Many other complaints deal with insurance‑related issues and board members will inevitably be influenced by their relationship with insurance companies that pay them.

Don Harrison, DC, for instance, wrote about the problem of board complaints relating to the use of x‑rays in chiropractic practice. He noted that IMEs and third‑party carriers are "snapping up every negative article and/or opinion of x‑ray usage" to deny legitimate claims. He points out, too, that several state chiropractic boards have passed board rulings limiting the use of x‑rays on children and limiting the use of post x‑rays. "These Boards are generally composed of a majority of IMEs, without practicing DC representatives. These Board rulings are NOT Standard of Care."

He's absolutely right. They are not chiropractic standards of care but merely insurance company guidelines intended to reduce chiropractic usage and therefore chiropractic claims. Would these boards have passed such insurance‑friendly rules if the members didn't have financial ties to insurance companies?

The problem extends not only to board members but those in positions of power who work with the board.

In California, Maggie Craw, DC is a board "consultant" who serves as a "utilization review doctor" for the State Compensation Insurance Fund, with duties similar to those of an IME in that she passes judgment on chiropractors' clinical decisions. One of several complaints filed against her last year noted that, in her duties for SCIF, she can deny chiropractic claims, then, using her position with the board, she can make trouble for DCs if they complain or appeal the SCIF decision!

Knowing that IMEs sit on a board has also made it nearly impossible for doctors to register complaints about other IMEs who abuse the system.

Massachusetts attorney Frank E. Biedak, who specializes in representing health care providers, noted, "Treating chiropractors have actually faced discipline when bringing complaints against IME doctors."

He gives an example of one chiropractor who brought an IME doctor to the attention of the board, noting that the IME report did not include proper documentation of all complaints presented by the patient. The board asked the doctor for his records, dismissed the complaint against the IME and disciplined the doctor for failing to meet record‑keeping regulations!

Biedak voiced his astonishment at this turn of events. "The Board of Registration of Chiropractors' mission states that it is established to 'protect the public.' Is it accomplishing that goal when it fails to discipline insurance doctors?" he asked.

In other states, attempts to regulate chiropractic IMEs have been voted down by board members who are, themselves, IMEs. Not surprising, is it?

Obviously, being an IME presents an insurmountable conflict of interest for members of state licensing boards and should not be tolerated. The New York report I mentioned above went so far as to suggest that "To avoid potential conflict of interest, IME doctors should be precluded from working for Preferred Provider Organizations or Managed Care medical practices that are also providing primary care to injured and sick workers."

Shouldn't this same prohibition be applied to doctors serving on our licensing boards?

In Arizona, when two of the three DCs appointed to the board were IMEs, the situation became intolerable. The Arizona Chiropractic Society (ACS), headed by Alan M. Immerman, DC, lobbied for a law prohibiting board members from working concurrently for insurance companies as IME doctors and serving on the board. The Arizona board reportedly spent $20,000 in taxpayer money to defeat this law but the ACS persevered and it passed! It's the first of its kind in the country that I know about, and it should serve as a model for other states wanting to clean up their own boards. Dr. Immerman and his courageous colleagues deserve a huge debt of gratitude for showing us that we can take back our boards from the insurance industry.

After all, if the insurance company tried to place one of its claims adjusters on a chiropractic board, we would fight the appointment vigorously. But we allow them to place chiropractors hired to give ammunition to those adjusters! It's time to make sure our board members are not serving two masters, particularly when one of them is the insurance industry.