UR Nation End of Month Regulatory News Summary

| | Utilization Review

AZ SB 1111 Would Limit Initial Opioid Prescriptions to a 5 Day Supply

SB 1111 by Senator Karen Fann, R-Prescott, would limit initial opioid prescriptions to a 5-day supply except in cases of surgery, for which doctors would be allowed to offer a 14 day supply. The restriction does not apply to “traumatic injuries” defined as serious or life-threatening injuries caused by external force, nor does it apply to cancer cases or end of life care. SB 1111 also requires a physical examination of any patient receiving opioids, along with a risk-assessment and informed consent from the patient. The bill would also require the prescriber to consult Arizona’s PDMP before prescribing any Schedule II, III or IV opioid or benzodiazepine (e.g., Xanax). In addition, the prescriber needs to check the PDMP at least once every 90 days while the prescription is part of the treatment for the injured worker. As of today, SB 1111 has not been assigned a committee for hearing as Arizona’s legislative session just started and is scheduled to run through April.

CA DWC Accepting Applications for P&T Committee

CA DWC is accepting applications from providers and pharmacists interested in serving on the Pharmacy and Therapeutics Committee that will advise AD George Parisotto on updates to the drug formulary that went into effect January 1. The committee will consist of three physicians and three pharmacists, and will hold quarterly meetings that will be open to the public. To see the form to apply for the Pharmacy and Therapeutics Committee click here.

California Court of Appeal Publishes IMR Case of Zuniga v. WCAB

Recently the California Court of Appeal ruled in the case of Zuniga v. WCAB (Interactive Trucking) that California’s IMR system, whereby the names of the IMR reviewing physicians are kept confidential, does not violate state and federal constitutions. As you may recall, those critical of IMR have said that not knowing the identity of the IMR physician is prejudicial to the injured worker. But in the Zuniga case the California Court of Appeal said that the IMR confidentiality rule did not violate state and federal constitutions because: (1) Zuniga would still be able to tell if he received decisions from two different IMR doctors even if he did not have their names, (2) injured workers receive reports detailing why a treatment request has been denied or modified and have multiple opportunities to submit evidence and to challenge the decisions, and (3) the Legislature has plenary power to create a workers’ compensation system, as that power was explicitly created by the California Constitution.

Initially, the major wrinkle was that the Court of Appeal ordered the case to be an unpublished opinion. Only published opinions are binding precedent in California. But the court just recently changed its position, ordering the Zuniga case to be published. This will likely blunt future constitutional law attacks aimed at the confidentiality provision of IMR, which many system participants believe is an important component of the IMR system.

Nebraska Expands PDMP to Include All Prescription Drugs

All states now have prescription drug monitoring programs (PDMPs). But Nebraska is unique in that they now (starting in 2018) require all prescription drugs to be listed on the PDMP. They are the first state to require this, which makes us wonder if other states will follow suit. In addition, starting July 1, Nebraska will require reporting for all veterinary prescriptions. In other words, all pet prescription drugs will be listed on the owner’s PDMP file. This is because, sadly, there have been reported cases where animal owners are using the medication for themselves or other purposes.

The only down side to the Nebraska PDMP is that while prescribers are required to report all prescriptions, they are not required to check the PDMP. We believe that all prescribers should be required to check a state’s PDMP before prescribing any opioid, benzodiazepine, or gabapentin or pregabalin, or carisoprodal (e.g., Soma). Thereafter, the PMDP should be checked at regular 60 to 90 day intervals, as this has proven to be an effective tool in reducing or eliminating doctor shopping.

Ohio to Spend $6 Million on Small Business Wellness Initiative

The Ohio Bureau of Workers’ Compensation (BWC) is spending $6 million on a new initiative to create a health and wellness program for workers at small businesses. The initiative is called “Better You, Better Ohio!” This comes on the heels of a 2017 report by United Health Foundation that ranks Ohio as one of the more unhealthy states (ranked 39 out of 50 states based on diet, exercise, smoking and other behaviors, community and environment, policies, clinical care and outcomes data). The “Better You, Better Ohio!” program will be operated by Aetna subsidiary ActiveHealth Management.

To be eligible for the program, a worker must work for a company with 50 or fewer employees, the worker must not have access to a health and wellness program, and must work in a higher risk industry such as construction, automotive repair, manufacturing, restaurant and food service, transportation and trucking, trash collection, or wholesale and retail.

The main thrust of the program appears to be aimed at health challenges related to obesity. These include diabetes and cardiovascular diseases. BWC Public Relations Manager Melissa Vince cited a Duke University Medical study that showed obese workers filed twice as many work comp claims as non-obese employees, had medical costs that were seven times higher, and lost an average of 13 times more days from work from injuries or illnesses. The study’s co-author, Dr. Truls Ostbye, said in a phone interview that obese workers are more likely to fall or trip and that the extra weight compounds their injuries.

While we applaud the initiative, it makes us wonder if small businesses in Ohio will simply cancel their existing wellness programs and look to “Better You, Better Ohio!” to fill the void.

Pennsylvania Commonwealth Case Decides Two Key UR Issues

The Commonwealth Court of Pennsylvania decided two key issues in the case of Timothy Allison v. Fisher Auto Parts. The first is whether or not a UR report is valid if no medical records were provided to the utilization review (UR) physician (the UR physician created the report based on a phone conversation with the provider). The second is whether or not an injured worker can obtain a property right in medical treatment, which could trigger certain due process constitutional law rights.

Timothy Allison was employed with Fisher Auto Parts. Allison sustained multiple fractures in a work-related motor vehicle accident. In May of 2015 Fisher Auto Parts sent a request by Dr. Julie Hoang for occipital nerve blocks, trigger point injections and medications including Robaxin, Lyrica and Fioricet, to UR. The Pennsylvania Bureau of Workers’ Compensation assigned the request to Watson Review Services (remember that Pennsylvania has a state run UR program, and UR organizations must be Bureau qualified).

Watson Review Services requested Allison’s medical records, but Dr. Hoang did not provide them. But instead of denying the request for “failure to supply records,” Watson Review Services sent the request to reviewing physician Dr. Dennis Ivill. Dr. Ivill issued a report stating that while he had not reviewed Allison’s medical records he did have a phone conversation with Dr. Hoang in which she gave an oral account of Allison’s medical condition. Dr. Ivill wrote in his report the he did not think, based upon the conversation with Dr. Hoang, the treatment was reasonable or necessary. Timothy Allison decided to appeal Dr. Ivill’s determination.

Allison brought a hearing before a Pennsylvania workers’ compensation administrative law judge. The judge ruled that since Dr. Ivill issued a report, that gave the judge jurisdiction to rule on the reasonableness and necessity of the requested medical treatment. Fisher Auto Parts appealed the case to the Workers’ Comp Appeals Board, and they reversed, ruling that because Dr. Hoang provided no medical records to Watson Review Services, Dr. Ivill was effectively precluded from being able to perform a substantive review.

The case was then appealed to the Commonwealth Court of Pennsylvania. The Commonwealth court affirmed the Board’s ruling.  They said that a physician reviewer’s report, in order to comply with Section 127.472 of the regulations, must list the medical records reviewed. Dr. Hoang’s failure to provide the medical records precluded Dr. Ivill from being able to perform a substantive review. Dr. Hoang’s oral account of Timothy Allison’s condition did not qualify as medical records for purposes of UR. The court also said Timothy Allison did not have a property right in future treatment (which could trigger possible constitutional law issues). This is because the settlement agreement said Fisher Auto Parts was responsible for payment of occipital nerve blocks that were reasonable and necessary… and that whether or not future treatment was reasonable and necessary was subject to future determination.

Prescribers in Nevada Required to Discuss Non-Opioid Therapy

Per AB 474, prescribers in Nevada are now required to discuss non-opioid therapy with a patient before prescribing opioids. In addition, the prescriber must check the state’s prescription drug monitoring program (PDMP) and perform a patient assessment. The assessment looks at the physical and mental health history and analyzes the potential for abuse, addiction and dependency. AB 474 applies to all Schedule II, III or IV controlled substances prescribed for the treatment of pain. In addition, a prescriber is limited to writing an opioid prescription for no more than 14 days for acute pain, and for no more than 90 milligram morphine equivalent for patients new to opioids (keep in mind 90 MME is still pretty high).

Overall, we are happy to see such strict Nevada requirements. The requirement for the prescriber to actually discuss non-opioid therapy with the patient is an interesting concept that more states should look to adopt.

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.