Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Can an insurer submit medication prescription requests to utilization review (UR) even where those medications have been repeatedly authorized before?
That question has been hotly debated in California workers’ comp circles after a recent WCAB Significant Panel Decision, Patterson v. The Oaks Farm (2014) 79 CCC 910.
The issue comes up again and again in cases, including cases of workers injured decades ago. The scenario goes like this. Medications are approved, sometimes for years without question. But emboldened by the availability of UR and the 2013 advent of Independent Medical Review dispute resolution procedures, the insurer starts questioning long-prescribed medications.
The worker may learn from the pharmacy that the meds will not be refilled. Or the worker gets a UR “non-cert” letter in the mail.
In some cases the meds may be psychotrophic meds that can cause severe emotional disturbance if they are withdrawn. In other cases the meds may be opiates; abrupt withdrawal can be ugly and even life-threatening.
Following Patterson there was some speculation by applicant attorneys that the WCAB would use the Patterson case to disallow repeated UR of previously oft-prescribed medications.
Specifically, applicant attorneys cited the following language from Patterson:
“Defendant acknowledged the reasonableness and necessity of nurse case manager service when it first authorized them, and applicant does not have the burden of proving their ongoing reasonableness and necessity. Rather, it is defendant’s burden to show that the continued provision of the services is no longer reasonably required because of a change in applicant’s condition or circumstances. Defendant cannot shift its burden onto applicant by requiring a new Request for Authorization and starting the process over again.”
Here are the facts in McCool:
Ms. McCool had sustained a 1983 low back injury as an ambulance driver and in 1993 was awarded future medical to cure or relieve the effects of the injury. Some 20 years later the insurer disputed McCool’s medical treatment. The utilization review (UR) vendor used by defendant issued a non-certification of four medications prescribed by McCool’s treater, OxyContin, Norco, Amrix, and Lyrica.
By the time of the WCAB hearing the defendant had voluntarily authorized the medications for Ms. McCool, however. As a result, by the time of the expedited hearing the issue was actually moot. Yet, the workers’ comp judge issued a ruling awarding the medications and ordering that the meds continue to be provided until circumstances changed and the meds were no longer reasonably required to cure or relieve the effects of the work injury. In so finding the WCJ was apparently relying on Patterson v. The Oaks Farm.
The defendant challenged this award, arguing that the provision of the meds was subject to the UR process and that Patterson did not foreclose UR of prescription requests even if they had been previously approved.
In a decision authored by Katherine Zalewski (with Commissioners Caplane and Brass concurring), the WCAB panel distinguished the situation in Patterson from that in McCool. According to the panel, Patterson involved a unilateral termination of previously agreed-upon nurse case manager services where the insurer did not invoke the UR process to review the need for nurse case management. (comment: It should be noted that the Patterson panel did not believe that a request for authorization was even necessary to challenge there termination of the nurse case manager in Patterson, so how or even whether the issue would be subject to UR was never made clear)
The McCool panel decision notes that
“recurring medication prescriptions are not the sort of ongoing care that was unilaterally terminated in Patterson. Prescriptions by their very nature are limited in frequency and time; the UR denial in this case notes that each prescribed medication has a finite number of doses. Each new prescription requires a new request for authorization that must be submitted to UR. Authorization of one prescription does not automatically mean that recurring prescriptions of that medication must be authorized indefinitely; the treating physician has an obligation to document the need for each recurring prescription, especially when the prescriptions are for heavily regulated opioid medications.”
In McCool the WCAB states that UR was “not intended to be a cost containment method” but rather “a way to ensure that injured workers receive timely and medically necessary treatment pursuant to objective, evidence- based guidelines”. That may be partially true, but only partially and is thus misleading.
The UR/IMR system has been repeatedly touted by policymakers, key stakeholders and analysts as a potential cost savings and means to control rising medical treatment costs.
As for IMR, when SB 863 was enacted in 2012 it was projected that IMR would lead to around $400 million in savings. Several 2014 WCIRB Cost Monitoring reports on SB 863 show that savings from IMR are very much in doubt. According to WCIRB estimates, $77 million may be spent on IMR alone in 2013 and 2014.
Is it any wonder that the projected savings from adoption of IMR have been illusory? If each and every prescription is subject to UR (including prescriptions issued by physicians on an employer MPN network), the volume of UR denials will inexorably lead to a huge volume of IMR appeals. According to recent WCIRB statistics, there were 61,793 IMR filings in the 3rd quarter of 2014. According to an August 2013 presentation to CHSWC by Dr. Rupali Das of the DWC, 45% of 2013 IMR decisions involved prescription issues. Each standard pharmacy IMR review costs $390.
Given the huge reliance on pharmaceuticals in the workers’ comp system, a rule that allows or even requires every prescription to go through UR (and then potentially through IMR) is a recipe for disaster. It is a rare worker who does not want to appeal the denial of a medication prescribed by their doctor. That’s just human nature.
So we are left with a cost containment scheme that is costly for employers and a painful disaster to some workers who are left hanging in the wind as they are abruptly cut off their meds.
The language in Patterson had held out some hope that the WCAB might interpret the SB 863 statutes in a way to circumscribe repeated UR of refills, i.e. a continuing course of the same medications for the worker. It appears the WCAB won’t be going that far.
Ultimately, though, there has to be a better way so that every time a worker tries to get a refill we are not potentially reinventing the wheel. Medication management in California group health is nowhere near as onerous as in the comp system.
In McCool the WCAB panel did indicate that it shared serious concerns about the UR denial of opioid medications for Ms. McCool. Apparently the UR reviewer had claimed to base his decision on the Medical Treatment Utilization Schedule (MTUS). However, the McCool panel noted that MTUS provides that given the probable risk of opioid withdrawal symptoms, there should be weaning and tapering under direct medical supervision. According to the McCool panel, “Defendant’s uncritical acceptance of an internally inconsistent UR recommendation not only caused applicant to seek an order preventing it from happening again, but exposed applicant to serious health risks.”
What was the remedy suggested by the McCool panel? Administrative penalties. Title 8, California Code of Regs 9792.12 sets forth an administrative penalty schedule for utilization review and independent medical review violations. McCool did not delineate exactly what non-compliance penalty would apply under 9792.12, merely making note that:
“Section 4610, subdivision (c), requires that every UR process must be governed by written policies and procedures ensuring that decisions regarding the medical necessity of proposed medical treatment services are consistent with the MTUS. Defendant’s policies and procedures in this case were insufficient to prevent a decision in violation of section 4610(c). Fortunately for applicant, defendant voluntarily changed its decision. However, any future decisions which violate section 4610(c) may be referred to the Administrative Director to review defendant’s written policies and procedures and potentially assess penalties for abuse of the UR process.”
Unfortunately, even if one of the 9792.12 administrative penalties would in fact apply in the McCool situation (a question that could be debated), those penalties are not of sufficient magnitude to create widespread disincentives for this type of conduct.
The McCool case (Kim McCool(Nelson) vs. Monterey May Medicar: ADJ2086501) can be found here: WorkersCompURofPrescriptionsMcCoolCase2014