SB 863 and the Opioid/Chronic Pain Dilemma

Attorney Marjory Harris asked me to contribute to the new WC Webzine http://www.wcwebzine.com/ and the first issue will soon be available. She has graciously allowed me to share article with you. The following is the text of the article: SB 863 and the Chronic Pain Dilemma The four part Los Angeles Times investigative report that began November 11, 2012 “Dying for relief” by Scott Glover and Lisa Girion should be required reading for anyone involved in workers’ compensation claims and/or treatment. The first part of the series: “Legal drugs, deadly outcomes” begins “prescription overdoses kill more people than heroin and cocaine” and begins:” Terry Smith collapsed face-down in a pool of his own vomit; Lynn Blunt snored loudly as her lungs slowly filled with fluid; Summer Ann Burdette was midway through a pear when she stopped breathing; Larry Carmichael knocked over a lamp as he fell to the floor; Jennifer Thurber was curled up in bed, pale and still, when her father found her; and Karl Finnila sat down on a curb to rest and never got up. Section 1(d) of Senate Bill (“SB”) 863 could have come right out of the Los Angeles Times article: “the current system of resolving disputes over the medical necessity of requested treatment is costly, time consuming, and does not uniformly result in the provision of treatment that adheres to the highest standards of evidence-based medicine, adversely affecting the health and safety of workers injured in the course of employment.” Boy is that ever the truth. As a senior Physiatrist and Pain Specialist in California I have been involved in workers’ compensation for a long time and have seen numerous reforms. The question of this reform is: will SB 863 which is designed to provide more access to care more expeditiously stem the epidemic of failure to properly diagnose and treat patients with the signs and symptoms of chronic pain as has be set forth in the Chronic Pain Medical Treatment Guidelines of the Medical Treatment Utilization Schedule (“MTUS”). The MTUS (Labor Code (“LC”) §5307.27) has been around since the 2004 reforms, but frankly, it has been very poorly understood and/or utilized by many. As to chronic pain it is simple common sense: if the patient’s condition can be identified early as headed towards becoming chronic then get a multidisciplinary evaluation as soon as possible. If the patient has already developed the stigmata of chronic pain, where the traditional biomedical model alone has failed them, get that patient evaluated and if appropriate into a Functional Restoration Program (“FRP”). It is no different than seeing a leak in your roof and doing nothing about it: what do you think will eventually happen? Now we have entered a new stage of workers’ compensation as a result of SB 863. Effective July 1, 2013 Panel Qualified Medical Examiner (“pQME”) or Agreed Medical Examiner (“AME”) and even a Workers’ Compensation Judge will not be able to resolve a treatment dispute. Instead LC §4610.5 places treatment resolution disputes in the hands of an Independent Medical Reviewer (“IMR”) physician who will not see the patient and who will be anonymous to both the patient and the insurance company. How will that affect chronic pain treatment? I spoke recently with a respected senior primary care physician (“PTP”) who stated that he sees a “90% denial rate” via the utilization review (“UR”) process. He describes the payers/employers in vitriolic terms. I have talked to other treating physicians and while the denial rate as they perceive it is not so high, many of them feel that the UR process does not work in the favor of the injured worker with a high denial rate which is egregious from their perspective. Will this change as a result of SB 863? Perhaps. Perhaps not. Let’s examine one possible scenario. A typical orthopedic of physiatry practice may be 30% workers’ compensation, some more, some less and some 100% workers’ compensation. Various limitations in SB 863 will substantially decrease the availability of treatment on a lien basis. So if treatment is denied then patient may have nowhere to go unless a timely and proper IMR request is filed. The doctor has the right to act as an advocate for the injured worker, but the responsibility, obligation and right to file the IMR belongs exclusively to the injured worker. Now there will be no more treatment resolution by the pQME or AME (for all injuries as of 7/1/13), who have an ability to see and evaluate the injured worker. In the ideal world one would hope the doctor in receipt of a UR denial would be right there as an advocate for the injured worker in their IMR appeal. But let’s look at LC §4616.1(d) which hold in part: “an employer or insurer shall have the exclusive right to determine the members of their network.” Will doctors challenge the UR for the sake of the injured worker and risk being excluded from the MPN (and therefore effectively from workers’ compensation)? Time will tell. But one thing is certain: This places even the very best of doctors – and the most ethical – to at the very least face making a choice. In our practice at Feinberg Medical Group (“FMG”), despite respect from the defense and applicant community, we are challenged daily with denial of care requests for routine treatment as well as for our FRP. We are experts at FMG and carefully document and explain our recommendations following the MTUS Chronic Pain Medical Treatment Guidelines. These Guidelines came from work done by the DWC Medical Evidence Evaluation Advisory Committee (“MEEAC”) and partially from the Official Disability Guidelines (“ODG”). I am regularly sought out as a speaker on these topics by both defense and applicant stakeholders. It seems so incongruous to hear from the carrier about the high (some even using the word “draining”) costs of legacy claims for patients with chronic pain when if earlier in the claim they used the MTUS to identify early risk factors and reduce (and sometimes even stop) this “drain” before it starts. The law regarding the MTUS has been in place since SB 228 in 2004. Other medical guidelines have been there since I became involved in workers’ compensation. Common sense preceded my entry into the profession. But from where I sit now purveying the past and looking to the future neither common sense nor the laws in place have been the order of the day. Instead, here we go again legislating what should have been known to all, and restating again what has been the laws for years that is: You must address chronic pain as soon as possible with a multi-disciplinary approach and cannot “kick the can down the road hoping that chronicity will just disappear if ignored. So let’s look at the law regarding the MTUS: · Recommended guidelines set forth in the medical treatment utilization schedule shall adopted by the administrative director pursuant to LC §5307.27; · Notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to LC §5307.27 (LC §4600(b): · The MTUS established as a result of LC §5307.27 is presumptively correct on the issue of extent and scope of medical treatment as a matter of law (LC §4604.5): · Each utilization review process shall be governed by written policies and procedures. These policies and procedures shall ensure that decisions based on the medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule for medical treatment utilization adopted pursuant to LC §5307.27. (LC §4610(c)); · UR denials or modifications must be consistent with the schedule for medical treatment utilization adopted pursuant to LC §5307.27 (LC §4610); · Procedures governing the determination of any disputed medical treatment issues by the IMR must be in a manner consistent with LC §5307.27 (LC §4610.5). The hierarchy in resolving medical disputes by the IMR is such that if the need is not established by the MTUS (8 CCR §9792.20 – 8 CCR §9792.26) the IMR must then go to peer reviewed evidence based medicine. I am familiar with evidence-based medicine guidelines and served as an Associate Editor on the ACOEM Chronic Pain Guidelines Panel Chapter Update and also ongoing as a Medical Consultant to the ODG. The MTUS clearly supports the functional restoration biopsychosocial model utilizing an FRP - so there should be no need to proceed to ACOEM, ODG. Yet, UR reflexively denies that which is in the MTUS and peer reviewed evidence based medicine. Perhaps this is a problem of the industry where the “can is kicked down the road” in hopes that the problem or the patient will go away in the face of a denial. Such an institutional belief is one of the elements at the core of the need for seemingly regular reforms. How about doctors, lawyers, claims managers and adjusters stepping back and looking at the big picture? Think about identifying those risk factors of chronic pain earlier and saving a life of misery? Adjusters: wouldn’t it be nice to stem the growing cost of legacy claims for medications and the inevitable compensable consequences? Lawyers: wouldn’t it be nice to know the MTUS and get your client care established by LC §4600? Society: It there not an over-riding social policy that following the MTUS as enacted by LC §5307.27 will ultimately decrease workers’ compensation premiums for the employer and prevent at times unmentionable and unnecessary suffering for the injured worker? May I stand up and say getting both doctors and carriers to finally follow the MTUS would be the single biggest reform in California history that could potentially save millions, if not billions, of dollars. Isn’t that was SB 863 was supposed to be all about? Until the MTUS is following by doctors and UR departments, the process of getting authorization will remain time consuming, problematic and a constant battle. Will SB 863 help or hinder us in getting the treatment we recommend for our injured worker patients? Despite my trepidations, I think that SB863 and the reconstituted Division of Workers’ Compensation MEEAC can be a positive factor in getting injured workers the care they need. With that said, physicians will need to modify their behavior somewhat with improved measurement and documentation of treatment efficacy. Here is a guideline for reporting: 1. The physician needs to provide a clear, legible and concise history and physical examination followed by diagnoses. I urge avoiding electronic medical record (EMR) boilerplate paragraphs. 2. The medical reporting must contain documentation that the injured worker is educated about and understands the diagnoses and that the goals of treatment are less discomfort, improved function and staying at or returning to work. 3. The injured worker must be educated to understand that medications are used to alleviate pain and other symptoms but are not curative or a long term solution. 4. The reporting must contain specific goals to be achieved by treatment which are understood and agreed to by injured worker. 5. The report should contain an explanation that the request/prescription for treatment is to achieve and will result in a positive outcome (and therefore be efficacious) by way of improved activities of daily living (ADLs) which are measured/documented at the next visit. 6. The report should provide an explanation that the request/prescription for treatment follows MTUS or other Guidelines and is supported by evidence-based medicine or is otherwise justified. Here are some examples of how a physician can explain the efficacy of a prescription for treatment: a. Example 1: The physician can explain that while a fitness center self-directed exercise program is not mentioned in any guideline but evidence that such participation results in increased ADLs, maintains staying at work and reduces use of medications is clearly cost-effective and medically reasonable. b. Example 2: The physician requesting an epidural can explain that there has been a recent deterioration in function and increased pain and lack of success with a medication increase and physical therapy. An epidural is medically reasonable given that the previous epidural provided six months of significant benefit by way of increased ADLs, maintaining staying at work and reduced use of medications. How does SB863 change the playing field? The IMR physician reviewer is anonymous but that individual is obligated to make rational decisions based on the MTUS and other guidelines where appropriate. It therefore behooves the prescribing physician to clearly identify how the recommendation for treatment meets those guidelines. A “bullet-proof” report would be one that clearly shows how the injured worker is appropriate for treatment. I recommend developing a check off list for common problems you encounter in your practice with reference to the MTUS and/or other essential support. Let’s take a look at authorization for a functional restoration chronic pain program. The MTUS Chronic Pain Medical Treatment Guidelines notes that there are a number of barriers to success which may justify a more intensive functional restoration chronic pain program. These include a negative relationship with the employer, a history of poor work adjustment and satisfaction, a negative outlook about future employment, high levels of psychosocial stress including pre-injury, ongoing litigation and anger directed toward the employer/payer regarding utilization review denials, greater smoking rates, the use of high dose opioids, and pretreatment pain levels. These factors could be included in your check off list. The MTUS provides criteria for admission to a functional restoration program including that a thorough evaluation has been accomplished (called a multidisciplinary or interdisciplinary evaluation), documentation that previous methods of treating chronic pain have been unsuccessful there is an absence of other options likely to result in a significant clinical improvement, the patient has a significant loss of the ability to function independently due to the chronic pain condition, negative predictors of success have been addressed, and most importantly the patient exhibits motivation to change, and is willing to forgo secondary gains, including disability payments to effect this change. The following is an example as to how I recommend obtaining authorization for a functional restoration program. An FRP evaluation and treatment is recommended and requested for authorization. I recommend including something like this in the Request for Authorization: “In accordance with the Medical Treatment Utilization, I believe this patient should be evaluated to have treatment in a Functional Restoration. This injured worker has become dysfunctional and has developed a chronic pain syndrome. This patient is not able to manage their chronic pain syndrome successfully and has become dependent on escalating medications, the medical system and passive tools such as rest, ice or heat. This injured worker has not responded well to past treatments including injections, medication trials, surgery, chiropractic care and/or physical therapy. This patient has become sedentary, deconditioned, limited by a fear of re-injury and/or movement and shows poor body awareness. There is also evidence for depressive symptoms and maladaptive coping, and this patient spends an unusual amount of time resting. Sleep problems and sexual dysfunction are present as well. This patient is also somatically focused. I have carefully explained to this injured worker the importance of reducing medications and becoming more functional and there is clear agreement that there is motivation to change on the part of this individual and a strong desire to return to work.” Now we have all seen patients who go downhill fast. They become dependent on family members; they lose their savings and perhaps their home. They, in short lose hope. From the perspective of the carrier this is an atomic bomb of costs about to go off if this situation cannot be helped. All a claims manager has to do is look at their future medical costs to know that I am right. Again, when it finally explodes the carrier calls it a “legacy claim” and a “drain.” I applaud the emphasis on the MTUS in SB 863. Over and over again the MTUS is laid out as the standard for both the doctor and employers. I can assure all stakeholders if the MTUS is simply just followed, as opposed to “kicking the can down the road” the next reform may not have to begin with the language: “the current system of resolving disputes over the medical necessity of requested treatment is costly, time consuming, and does not uniformly result in the provision of treatment that adheres to the highest standards of evidence-based medicine, adversely affecting the health and safety of workers injured in the course of employment.”