Tag Archives: medical treatment utilization schedule

Legislative Preview for Work Comp in 2016

Common wisdom suggests that major workers’ compensation legislative activity won’t take place during an election year. For 2016, that would seem to hold true.

That is not to say, however, that various interested parties will be sitting idly by, waiting for the clock to turn to 2017.

CENTERS FOR DISEASE CONTROL ADD TO THE LIST OF CHRONIC PAIN GUIDELINES

On Jan. 13, the Centers for Disease Control and Prevention (CDC) closed the public comment period for its proposed Guideline for Prescribing Opioids for Chronic Pain. According to the CDC, the guideline is being proposed to offer “… clarity on recommendations based on the most recent scientific evidence, informed by expert opinion, with stakeholder and constituent input considered.”

The guideline goes to great lengths to address two important issues. The first is that current guidelines in many states – both public and private – are based on dated information. The second, which is critical, adds to the growing number of voices to say that best practices for providers include accessing physician drug monitoring programs (PDMP) to reduce the risk of doctor shopping and toxic – and sometimes fatal – mixtures of prescription drugs when the patient provides incomplete histories or none at all of their drug use (both prescription and illicit).

This need to access a PDMP before, and during, treatment with opioids is echoed by the Medical Board of California (MBC) and the DWC. Their comments also underscore a considerable problem facing California policymakers when trying to create incentives for providers to use the Controlled Substance Utilization Review and Evaluation System (CURES) without directly mandating access.

This dilemma is best summed up by the analysis of Senate Bill 482 by Sen. Ricardo Lara (D – Bell Gardens) that is at the Assembly Desk pending referral to committee. The bill, which would mandate participation in the CURES system as well as other measures to curb the abuse of opioids, has garnered opposition from medical associations and one medical malpractice insurer. The opposition, according to analyses by legislative staff, is based on two issues – the first being whether the CURES system is capable of handling the volume of inquiries a mandate would engender, and the second being concern that requiring CURES access will become a standard of care that could subject providers to malpractice liability.

As to the former, this issue arose during the campaign waged against the 2014 ballot measure Proposition 46. According to the non-partisan Legislative Analyst’s Office (LAO), “Currently, CURES does not have sufficient capacity to handle the higher level of use that is expected to occur when providers are required to register beginning in 2016.” This raises an important question – does the CURES system now have the capability to meet the demand that a mandate would create? If it doesn’t, then the legislature needs to understand why.

As to the second issue, it is difficult to comprehend the level of distrust that is subsumed in the position that opposing a mandatory review of possible prescription drug abuse by a patient would establish more potential malpractice liability than knowing that the CURES database exists and not checking it. In time, perhaps, it will be the appellate courts that resolve that issue.

There is no shortage of guidelines that address the appropriate use and cessation of use of opioids for non-cancer chronic pain. The DWC is finalizing its latest iteration on this issue as part of the MTUS. It will differ from both the CDC and the MBC guidelines to some degree, but the overall treatment of this issue is very similar. In addition, the division will be implementing a prescription drug formulary as required by Assembly Bill 1124 by former Assembly member Henry Perea (D – Fresno). That, too, will likely provide opportunities to address the proper use of opioids in the workers’ compensation context, preferably after the chronic pain guidelines are completed.

As noted by the CDC and the MBC, and implicit in the DWC’s guidelines, this is not just a question of UR. If all the work by the division is simply viewed as a more effective way of saying “no” regardless of the circumstances, then the public health issues associated with the abuses of opioids will continue.

Workers’ Compensation Insights is a bi-monthly publication of Prop 23 Advisors. Subscribers will receive in-depth analyses of pending California legislation and regulations, review of important WCAB and appellate court decisions and commentary on trends within the system in California and nationally. To read the rest of this newsletter, click here.

State of Workers’ Comp in California

At the 2015 California Workers’ Compensation & Risk Conference, this panel of industry stakeholders weighed in on the overall condition, including cost drivers and legislation, affecting California’s workers’ compensation system:

Moderator: Mark Walls, VP communications and strategic analysis at Safety National

David North, CEO at Sedgwick

Kevin Confetti, deputy chief risk officer at University of California

Ann Schnure, VP risk management, claims, at Macy’s

Dawn Watkins, AIC, PHR, ARM, director integrated disability management at LA Unified School District

Julius Young, partner at Boxer & Gerson

Richard M. Jacobsmeyer, founding partner at Shaw, Jacobsmeyer, Crain & Claffey

The first question was: How does the California’s workers’ compensation system compare with other states?

California ranks #1 in costs compared with the rest of the U.S. California simply has more claims that cost more money. That is why California is the most expensive and complicated state.
Every time California changes a law, the system gets more complex. What influences workers’ comp is far more than just the laws, though. The social norms are different in California. It is a unique culture of employment that affects everything. There are a lot of things that employers and the healthcare community do that are driving these costs.

Why are claims costs so expensive in the Los Angeles basin vs. the rest of California?

Injured employees are transferred away at a larger rate from the primary treating physician of the employer’s choice. There is a very different treatment pattern compared with other states, and this medical treatment is driving costs for employers. Litigation rates are higher, which is part of the culture in that area. Very often, LA attorneys try to take medical control and send the injured employees to the doctors that the attorneys prefer. Attorneys and physicians who have had long-lasting relationships are referring almost exclusively to each other. Attorneys are aggressively advertising to injured workers, and workers are responding.

What else is driving workers’ compensation costs in California as a whole?

Once an employee gets an attorney referral, it is out of the employer’s hands. The employer no longer has the authority to properly take care of the injured worker. California is the only state where, if you do not like what you are paid, you file a lien. This has nothing to do with the quality of care for the injured worker. The root of so many of these issues is the doctor community in the state. Maybe the doctors need to be trained on billing and medical treatment utilization schedule  (MTUS), but it’s believed that some may be billing higher than the fee schedule to see if someone will actually pay the higher rate billed. The most important person in workers’ comp is the injured worker. We should be spending all the money that employers pay on things like bill review on helping the worker heal. Too much of the costs that employers pay are not going to the injured worker.

What concerns do you have about current legislation and case law affecting the system?

We, mistakenly, have allowed legislation to tell us how to comply. It has become much more about the process rather than helping an injured worker get better. Doctors will say how they think they should treat, but have to send the case through utilization review, which sometimes contradicts the doctor’s opinion. This deflates that injured worker’s confidence on whether he is getting the best care. It is possible that doctors are not trained on the MTUS and keep trying to push things through the system that shouldn’t be. We should focus on how to better train doctors on the system. The system is so complicated. What employers need to do is try to stop the employees from getting into the system. We need to intervene fast. Get the employees good, quality medical care quickly and eliminate the potential for them to get stuck in the system.

How do you improve the quality of benefits to injured workers in California?

The least-likely employee to file a claim is the employee who thinks her employer cares about her. Employees are much less likely to litigate cases if the employer is providing them with good care and communication. That’s the gold standard for trying to decrease litigation. It is so important for employers to reflect on how they are treating their injured workers. Are you treating them like a member of your team or just another expense? Often, they are afraid that they are going to lose their job. Let them know what workers’ comp is and what they should expect. It is so complicated. Make sure they are well-informed and understand that return to work means they are not going to lose their job because of an injury. Claims examiners in California have a tough job. We need to hire smart people and give them appropriate workloads. They are the glue that holds everything together. California currently has a shortage of qualified adjusters, and it is a large problem. The industry, as a whole, needs to contribute to this issue so we can get quality people interested in this career path.

Prescription Drug Abuse – Progress In Sacramento

On May 30, the California Senate passed Senate Bill 809 (DeSaulnier) unanimously. This bill has as its primary goal the continued funding of the Controlled Substance Utilization Review and Evaluation System (CURES) in the California Department of Justice. Over the past year, considerable attention has been brought to the issue of abuse of prescription painkillers nationwide and across all benefit systems. Well-publicized research in California by the California Workers' Compensation Institute (CWCI) and multi-state analyses by the National Council on Compensation Insurance, Inc. (NCCI) and the Workers' Compensation Research Institute (WCRI) have quantified the tragic effects of over-prescribing these medications.

SB 809 seeks to do more, however, than simply develop a stable funding source for this program. The recent Senate action, while important, demonstrates that not all issues surrounding the CURES program are likely to be resolved in 2013. As a series of investigative reports done by the Los Angeles Times pointed out, participation in the CURES program by physicians is not mandatory, and there is no adequate mechanism in place to report unusual prescribing patterns by physicians to the Medical Board of California. While the funding legislation for CURES will address the latter problem, there is still no requirement that prescribers access the database before prescribing a Schedule II – IV controlled substance. However, all prescribers and dispensers will be required to register with the CURES system, which in and of itself is an important development for the Department of Justice and the Medical Board in their efforts to identify and investigate abusive prescription patterns and to combat diversion of the medications for illicit purposes.

Also, stripped from the bill was a tax on manufacturers of controlled substances that would have been used for enhanced law enforcement capabilities throughout the state. This was a critical development that policy makers still need to address, either in this legislation or through the budget process.

Even though a targeted tax on manufacturers is not palatable to the Legislature, the need to fund better enforcement of the laws governing illicit sales of prescription drugs remains a high priority. The funding in the current bill will allow the CURES program to be maintained and improved, but law enforcement will still not have what it needs to investigate physicians and pharmacists who are violating the law and bring them to justice.

While California's workers' compensation system does not have the same level of protections against prescription drug abuse as other state workers' compensation systems, there are resources at our disposal to limit the danger of these medications.

The Medical Treatment Utilization Schedule, utilization review, and Independent Medical Review (IMR) recently added by Senate Bill 863 will assist payers in their effort to curb overutilization of these medications while still addressing the very real clinical need for relief from acute pain and management of chronic pain resulting from an occupational injury. The Division of Workers' Compensation is expected to release new guidelines on pain management later this year that should further assist in this process. And the workers' compensation system, like all other healthcare financing programs, will benefit from the enactment of SB 809. It's a good start, but we are a long way away from declaring this problem solved.

The abuse of high powered prescription pain medication is a public health crisis with workers' compensation implications. The path to a solution requires the active participation of the medical and pharmacy communities, drug manufacturers, law enforcement, medical benefit payers — whether public programs, private group health plans or workers' compensation insurers and self-insured employers — and state and federal agencies and boards overseeing the development and use of these medications.

Progress is being made, but more work needs to be done. The goal is not simply for payers to be better able to say “no”. The goal is also not simply being able to avoid the costs of these medications and the complications their abuse creates and have those costs be borne somewhere else. The goal is delivering the highest quality treatment for an injured worker. A back injury, for example, doesn't automatically require surgery in all circumstances any more than it requires an injured worker to face the prospect of drug dependency.

If we use the tools at our disposal compassionately and intelligently and if we continue to press policy makers and regulators to take all steps necessary to protect patients from the improper use of these medications, then we will be able to measure success in more than dollars saved. If Governor Brown gets SB 809 on his desk and signs it, it will become effective immediately. That's a good first step, but there will still be much work to do.