UR Nation End of Month Regulatory News Summary

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Alabama Task Force Optimistic About Workers’ Comp Overhaul by 2019

You may recall that in 2017, Alabama Jefferson County Circuit Court Judge Pat Ballard declared the entire Alabama workers’ comp system unconstitutional. To us, our clients and other system participants, this came as a dreadful shock. Judge Ballard heard the case of Clower v. CVS Caremark Corporation. He took offense to the attorney fee cap of 15 percent and the permanent partial disability benefits provision. He said that the law was “arbitrary, capricious, irrational” and “a clear violation of equal protection of the laws” under the U.S. Constitution. However, Judge Ballard also stayed enforcement of his order for 120 days. This was to give lawmakers a chance to cure the “deficiencies he identified.” Later, Judge Ballard made the stay permanent. Thankfully, the case is now settled.

In the wake of this case, the Alabama State Bar Association appointed a task force to examine the attorney fee cap and permanent partial disability benefits provision in an effort to revise these sections of the law. Further good news is that the task force has been meeting regularly and is in a position to bring legislation in the 2019 session. Keep in mind that Alabama’s legislative session ends April 23, so nothing will happen this year. In addition to changing the rules with respect to attorney fees and permanent partial disability benefits, the task force is also looking at additional legislation on opioids and standardizing medical forms.

We are hopeful that with new legislation on the way we will not see a repeat of Judge Ballard’s order declaring the entire workers’ comp system unconstitutional, and the resulting consternation that ensued.

Arizona Planning Three Key UR Changes Effective October 1, 2018

The Arizona Industrial Commission gave notice that they are planning three key changes to utilization review (UR) effective October 1, 2018.

The first is to expand the use of ODG. Currently, Arizona requires ODG only for chronic pain and opioids. But starting October 1, 2018, the commission will require the use of ODG for all injuries.

The second change is to come up with a commission approved request for authorization (RFA) form for all injuries. We think the form will be similar to the RFA MRO-1 used for chronic pain and opioids. The form will be mandatory.

Third, the current 10-day turnaround time for prospective UR will be shorted to seven business days.

The commission is holding a public hearing on the proposed changes at 9:00 a.m. PST, April 16, in the auditorium of its office at 800 W. Washington St. in Phoenix.

Arkansas Workers’ Comp Commission Issues Formulary Rules for July 1, 2018 Effective Date

The Arkansas Workers’ Comp Commission issued rules for the formulary that goes into effect July 1, 2018. The formulary limits first-time opioid prescriptions to a 5-day supply at 50 morphine equivalent dosage (MED) per day. Subsequent prescriptions are limited to no more than 90 days without authorization and periodic urine testing.

Insurers must have a pharmacist and physician on staff or must contract with a PBM. Also, prescribers must check the Arkansas prescription drug monitoring program (PDMP) before prescribing opioids or benzodiazepines. In addition, compounded medications will require preauthorization.

For those interested in learning more about the formulary there is a great FAQ page, and a great Bullet Points page that highlight important information.

Bill in Congress Would Limit Initial Opioid Prescriptions to Three Days

Congressional bill S. 2456, also known as CARA 2.0, would limit initial opioid prescriptions for acute pain to just three days and require prescribers to check their state’s prescription drug monitoring program (PDMP). The bill would also allocate $1 billion to such programs as first responder training and access to naloxone, educational campaigns, and support services for recovering addicts. Sponsors of the bill include both Republicans and Democrats.

Joe Paduda, principal at Health Strategy Associates, commended the bill but said the funding of $1 billion was “miniscule at best.” Paduda said, “The reality is that we need greatly expanded treatment for patients with substance abuse disorder, perhaps $20 billion every year.” Paduda suggested that one way to raise the funds would be to retroactively tax opioid manufacturers and distributors. “Taxpayers should not foot the bill to clean up the mess those parties created.”

Right now the bill is proceeding before the Committee on Health, Education, Labor and Pensions.

CWCI Report Shows Opioid Use Down in California

A new CWCI report shows that opioid use in California workers’ comp is down significantly. The report shows that opioids now account for less than 25 percent of workers’ comp prescriptions in the state. This is down from nearly 66 percent in 2008-2009. The report also shows that the downward trend has been going on for a long time. However, the report also shows that opioids remain the number one drug category for California workers’ comp. Opioids, anti-inflammatories and anticonvulsants were the most common drugs dispensed in 2017 and accounted for more than half of all filled prescriptions.

Alex Swedlow, president of CWCI, said “This is an issue that has been with us for quite some time, albeit under the radar of mass media coverage until I would say the last 5 to 7 years. This problem was some 30 years in the making. It will take a lot of time to fully resolve it.”

Georgia to Test State Employees for Unauthorized Opioids

The House passed HB 701 last month, and the Senate passed it last week. The bill allows state agencies to test workers for a range of opioids that have not been authorized by prescription. These include opioids, opioid analgesics and derivatives. Keep in mind that under Georgia law state employees are generally allowed to be tested for illegal drugs. This just adds unauthorized opioids and analgesics to the list.

In a news release last week, Attorney General Chris Carr said, “Opioid abuse and misuse is ravaging our state and nation. We have to continue to combat this issue with an all-in effort. This new law… will help us cut down on abuse and ensure public safety.”

The list of opioids that employees may be tested for includes Oxycodone, Oxymorphone, Hydrocodone and Hydromorphone.

It will be interesting to see if other states follow suit in setting up similar measures to test state employees. From there, it’s possible private employers and the workers’ comp system will follow suit.

New WCRI Report Shows Workers with Low Back Injuries Who Take Opioids Take Three Times Longer to Recover

The Workers’ Compensation Research Institute (WCRI) has a new report that shows that workers with lower back injuries who take long term opioids take at least three times longer to recover. John Ruser, WCRI’s president and chief executive officer, said “Based on the results of this study, there is a clear implication that policies addressing inappropriate longer-term opioid prescribing will result in faster return to work.”

The study analyzed data from 28 states for injuries that occurred from 2008 to 2013 with more than 7 days of lost time. The report shows that the average length of temporary disability benefits was 51.6 weeks for the group that received long term opioids (defined as at least 3 prescriptions used as long as 7 to 12 months following the injury). For workers who did not receive any opioids for lower back injuries, the average length of temporary disability was 11.3 weeks. For those who received just one opioid prescription the average was 12.4 weeks.

Dr. Gary Franklin, medical director of the Washington State Department of Labor and Industries, said “Once you go on chronic opioids, you’re going to pretty much be in the system for a long time.”

North Carolina Industrial Commission Approves New Opioid Restrictions

The North Carolina Industrial Commission approved new restrictions on opioid prescribing. The rules have an effective date of Nov. 1, 2018.  The new rules limit prescriptions of opioids and other controlled substances to a 5-day supply, or 7-day supply following surgery. The dosage cannot exceed 50 milligram morphine equivalent dose per day.  Transdermal opioid products are banned unless there is documentation in the medical records that oral medications are contraindicated. Fentanyl is banned. And there are restrictions on prescribing benzodiazepines and carisoprodol muscle relaxers. For chronic pain treatment, providers may exceed 90 milligrams per day with preauthorization. Doctors will now be required to consider sending a patient home with an opioid antagonist, such as naloxone, which can counter the effects of opioid drugs.

Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.