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Medical Management

No Consensus on Treatment

Experts disagree on the involvement of risk managers in implementing treatment guidelines for injured workers.
By: | March 3, 2017 • 7 min read

Even as the nation’s 50 states inch towards consistency in medical treatment guidelines for workers’ compensation injuries, there is no consensus on the role of risk managers in enforcing them.

Dr. Robert Goldberg, chief medical officer, Healthesystems, a national workers’ compensation benefits management provider, said risk managers should delegate oversight of treatment guidelines and compliance to those for whom it is a core competency.

“Why should risk managers know anything about treatment guidelines?” he asked.

“Management of care is in the capable hands of physicians, nurse case managers, insurers, TPAs (third-party administrators) and utilization review (UR) organizations.”

Anne Kirby, chief compliance officer and vice president of care management, Rising Medical Solutions

Anne Kirby, chief compliance officer and vice president of care management, Rising Medical Solutions, said it’s impractical for risk managers, with their myriad tasks, to also take on micromanagement of thousands of pages of treatment guidelines.

For example, ODG’s treatment guidelines — the most widely used — include 46 pages related to opiod usage.

“It’s too much for any single risk manager to know.” Instead, she advised risk managers to “do due diligence on the UR company.”

Ettie Schoor, president, Prism Consultants, said, however, that risk managers shouldn’t offload responsibility for enforcement onto their TPAs or carriers because of the risk of errors. She noted that TPAs have a lot of turnover, carriers are always hiring new adjusters, and both have very high caseloads.

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2017 Power Broker® Dennis Tierney,  a senior vice president in Marsh’s claim practice, said that risk managers should “have some familiarity” with guidelines for the body parts where their exposures are highest, as well as rely on the expertise of their TPA, carrier and broker claims consultant partners.

“Should risk managers be aware of guidelines?” asked Mary O’Donoghue, chief clinical and product officer, MedRisk. “Absolutely. Should they expect TPAs to administer medical review appropriately? Absolutely.”

She advised risk managers to focus their attention on unusually long, complex and expensive claims.

Many states and a few Canadian provinces have adopted, adapted or developed medical, surgical, therapeutic and pharmaceutical treatment guidelines for a number of workers’ compensation maladies.

The most common claims, according to The National Law Review, are strains and sprains (30 percent), cuts or punctures (19 percent), contusions (12 percent), inflammation (5 percent) and fractures (5 percent).

Do Treatment Guidelines Work?

The cautious consensus is that, overall, treatment guidelines usually work.

“In states where care is managed and guided using excellent guidelines and strong utilization, workplace injuries may be handled at a higher level of care with a higher expectation of recovery,” said Goldberg.

And in states with limited or no guidelines, “injuries may linger and lead to longer disability, higher indemnity payments and loss of return-to-work,” he said.

The extensiveness of treatment guidelines make it “too much for any single risk manager to know.” — Anne Kirby, chief compliance officer and vice president of care management, Rising Medical Solutions

ODG points to statistics proving the effectiveness of guidelines.

States that adopted ODG guidelines, its website claimed, reported medical cost savings of 25 percent to 60 percent, average disability duration reduced from 34 percent to 66 percent, treatment delays from date of injury to initial treatment reduced 77 percent and insurance premiums reduced by 40 percent to 49 percent.

Only 13 states have no guidelines or none under consideration by the state legislatures, according to ODG.

Phil LeFevre, managing director, ODG, draws a bright line separating consensus-based guidelines characteristic to states that develop their own, and evidence-based guidelines “developed from comprehensive review of the medical literature, ranking and weighting thousands of studies based on design and quality, and tested for 15 years for optimal outcomes.”

A few states’ guidelines are mandatory — California and New York require compliance for certain injuries to most body parts, for example — but most are “guiderails” to keep treatment on track, said Goldberg of Healthesystems.

Some states adopt ODG and American College of Occupational and Environmental Medicine (ACOEM) guidelines, others develop their own, and yet others borrow from all of the above.

“Treatment guidelines give workers what they need, not what they want,” said Schoor. That brings a much-needed halt to excessive treatments that jack up medical and indemnity costs, she said.

Complex Cases Challenge Guidelines

Actual medical outcomes and return-to-work rates fall short of the promise of treatment guidelines, wrote Michael Gruber, partner, Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, a New York workers’ compensation law firm.

“ ‘Cookbook’ treatment rules effectively tie the hands of medical providers by not allowing them to use their judgment as to what treatment would be most beneficial for their patients,” he wrote in a newsletter for the American Association for Justice.

Most treatment guidelines are “pretty good” at predicting the medical treatment and return-to-work date of average claims, said Dr. Brian O’Malley, president, The Rehab Center in Charlotte, N.C., which treats complex worker injuries.

They’re not as good at guiding treatment for the outlying cases, which usually account for the largest expenditures, O’Malley said. “Guidelines may have a myopic view of an injury.”

For example, he said, most workers with a lumbar strain will return to work within 30 days. What happens to those who don’t?

“Decompression in the spine, spinal fusion, the condition deteriorates. The patient gets a spinal cord stimulator” — a highly dubious medical treatment in the workers’ compensation population, O’Malley said.

“Those end up costing the most money.”

Even with those lumbar strains that don’t lead to surgery, complex symptoms may follow: disturbed sleep due to pain, weight gain from inactivity, anxiety from disrupted routine and depression from isolation.

“It goes on and on,” O’Malley said.

“Many injuries need involvement by more than a spine specialist,” he said, including the emotional piece. Not all states compensate for mental health services.

Risk managers should “have some familiarity with guidelines for the body parts where their exposures are highest.” — Dennis Tierney, senior vice president and director, workers’ compensation, Marsh claim practice

Denied treatment prompts some injured workers to file claims under their private insurance or to pay for treatment out of pocket, Gruber wrote.

On the contrary, said Goldberg, the workers’ comp system is more prone to excessive care than denial of treatment.

Guidelines are designed to be flexible, permitting discretion for the treating physician, with room to file an appeal for denied treatment, said LeFevre.

Dennis Tierney, senior vice president and director, workers’ compensation, Marsh claim practice

Despite the good intentions behind guidelines, implementation can go awry, said Bernie Baltaxe, partner, Smith & Baltaxe, LLP, which specializes in workers’ compensation cases.

For example, a case now in the California Supreme Court alleges a UR doctor’s decision to decertify the sedative Klonopin in accordance with treatment guidelines led to seizures and additional injury. Klonopin was prescribed for anxiety related to a back injury.

Most guidelines are not mandatory, said Dr. Robert Hall, corporate medical director, workers’ comp division of Optum, but establish a starting point for treatment.

“If the current treatment plan isn’t working, there may be a good reason to deviate.”

If evidence points irrefutably to the optimal type and length of treatment for, say, a rotator cuff injury, why aren’t treatment guidelines the same across the country?

Inconsistent State Guidelines

“It boils down to the character of the state,” said Brian Allen, vice president, government affairs, workers’ comp division of Optum. “The handful of states that defer to market solutions tend to target specific conditions.”

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Some years ago, for example, “every time you turned around in Montana you saw another back surgery,” which is highly controversial because of cost and efficacy. Treatment guidelines brought the number down 70 percent.

States that seek solutions from regulations, such as Massachusetts, have “sweeping guidelines covering a gamut of treatments.”

The lack of uniformity inhibits consistent medical care, said O’Donoghue of MedRisk.

“Treatment guidelines give workers what they need, not what they want.” — Ettie Schoor, president, Prism Consultants

“Some states have a presumption of treatment” rather than mandatory protocols, said Tron Emptage, chief clinical officer, workers’ comp division of Optum, which can be the deciding factor in a dispute over compensability between the payer and treating physician.

“If the doctor presents evidence for deviation from the guidelines, generally the payer will help determine coverage for the expense under the claim,” Emptage said.

Different states have different recommendations for treating lower back pain, which accounts for one-third of occupational musculoskeletal injuries and illnesses resulting in work disability, according to the Department of Labor.

“Some doctors order an x-ray at the first visit,” said Hall of Optum. Without accompanying red flags, such as fever or weight loss indicating a more severe underlying condition, “imaging has low value because the worker hasn’t had a chance to heal. Guidelines can keep the treatment on track.” &

Susannah Levine writes about health care, education and technology. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Pharma Under Fire

Opioids Give Rise to Liability Epidemic

Opioids were supposed to help. Instead, their addictive power harmed many, and calls for accountability are broadening.
By: | May 1, 2018 • 8 min read

The opioid epidemic devastated families and flattened entire communities.

The Yale School of Medicine estimates that deaths are nearly doubling annually: “Between 2015 and 2016, drug overdose deaths went from 33,095 to 59,000, the largest annual jump ever recorded in the United States. That number is expected to continue unabated for the next   several years.”

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That’s roughly 160 deaths every day — and it’s a count that’s increasing daily.

In addition to deaths, the number of Americans struggling with an opioid disorder disease (the official name for opioid addiction) is staggering.

The National Institute on Drug Abuse (NIDA) estimates that 2 million people in the United States suffer from substance use disorders related to prescription opioid pain relievers, and roughly one-third of those people will “graduate” to heroin addiction.

Conversely, 80 percent of heroin addicts became addicted to opioids after being prescribed opioids.

As if the human toll wasn’t devastating enough, NIDA estimates that addiction costs reach “$78.5 billion a year, including the costs of health care, lost productivity, addiction treatment, and criminal justice involvement.”

Shep Tapasak, managing principal, Integro Insurance Brokers

With numbers like that, families are not the only ones left picking up the pieces. Municipalities, states, and the federal government are strained with heavy demand for social services and crushing expenditures related to opioid addiction.

Despite the amount of money being spent, services are inadequate and too short in duration. Wait times are so long that some people literally die waiting.

Public sector leaders saw firsthand the range and potency of the epidemic, and were among the first to seek a legal reckoning with the manufacturers of  synthetic painkillers.

Seeking redress for their financial burden, some municipalities, states and the federal government filed lawsuits against big pharmaceutical companies and manufacturers. To date, there are more than 100 lawsuits on court dockets.

States such as Ohio, West Virginia, New Jersey, Pennsylvania and Arkansas have been hit hard by the epidemic. In Arkansas alone, 72 counties, 15 cities, and the state filed suit, naming 65 defendants. In Pennsylvania, 16 counties, Philadelphia, and Commonwealth officials have filed lawsuits.

Forty one states also have banded together to subpoena information from some drug manufacturers.

Pennsylvania’s Attorney General, Josh Shapiro, recently told reporters that the banded effort seeks to “change corporate behavior, so that the industry can no longer do what I think it’s been doing, which is turning a blind eye to the effects of dumping these drugs in the communities.”

The volume of legal actions is growing, and some of the Federal cases have been bound together in what is called multidistrict litigation (MDL). These cases will be heard by a judge in Ohio. Plaintiffs hope for a settlement that will provide funding to be used to help thwart the opioid epidemic.

“From a societal perspective, this is obviously a big and impactful issue,”  said Jim George,  a managing director and global claims head with Swiss Re Corporate Solutions. “A lot of people are suffering in connection with this, and it won’t go away anytime soon.

“Insurance, especially those in liability, will be addressing this for a long time. This has been building over five or six years, and we are just now seeing the beginning stages of liability suits.” 

Basis for Lawsuits

The lawsuits filed to date are based on allegations concerning: What pharma knew or didn’t know; what it should have known; failure to monitor size and frequency of opioid orders, misrepresentation in marketing about the addictive nature of opioids; and false financial disclosures.

Opioid manufacturers, distributors and large drugstore chains together represent a $13 billion-a-year industry, meaning the stakes are high, and the pockets deep. Many have compared these lawsuits to the tobacco suits of the ’90s.

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But even that comparison may pale. As difficult as it is to quit smoking, that process is less arduous than the excruciating and often impossible-to-overcome opioid addiction.

Francis Collins, a physician-geneticist who heads the National Institutes of Health, said in a recorded session with the Washington Post: “One really needs to understand the diabolical way that this particular set of compounds rewires the brain in order to appreciate how those who become addicted really are in a circumstance where they can no more [by their own free will] get rid of the addiction than they can get free of needing to eat or drink.”

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk.” — Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

The addiction creates an absolutely compelling drive that will cause people to do things against any measure of good judgment, said Collins, but the need to do them is “overwhelming.”

Documented knowledge of that chemistry could be devastating to insureds.

“It’s about what big pharma knew — or should have known.  A key allegation is that opioids were aggressively marketed as the clear answer or miracle cure for pain,” said Shep Tapasak, managing principal, Integro Insurance Brokers.

These cases, Tapasak said, have the potential to be severe. “This type of litigation boils down to a “profits over people” strategy, which historically has resonated with juries.”

Broadening Liability

As suits progress, all sides will be waiting and watching to see what case law stems from them. In the meantime, insurance watchers are predicting that the scope of these suits will broaden to include other players in the supply chain including manufacturers, distribution services, retail pharmacies, hospitals, physician practices, clinics, clinical laboratories and marketing agencies.

Litigation is, to some extent, about who can pay. In these cases, there are several places along the distribution chain where plaintiffs will seek relief.

Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

Nancy Bewlay, XL Catlin’s global chief underwriting officer for casualty, said that insurers and their insureds need to pay close attention to this trend.

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk,” she said.

“We, as insurers who identify emerging risks, have to communicate to clients. We like to be on the forefront and, if we can, positively influence the outcome for our clients in terms of getting ahead of their risks.”

In addition to all aspects of the distribution chain, plaintiffs could launch suits against directors and officers based on allegations that they are ultimately responsible for what the company knew or should have known, or that they misrepresented their products or signed off on misleading financial statements.

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Shareholders, too, could take aim at directors and officers for loss of profits or misleading statements related to litigation.

Civil litigation could pave the way, in some specific instances, for criminal charges. Mississippi Attorney General Jim Hood, who in 2015 became the first state attorney general to file suit against a prescription drug maker, has been quoted as saying that if evidence in civil suits points to criminal behavior, he won’t hesitate to file those charges as well.

Governing, a publication for municipalities and states, quoted Hood in late 2017 as saying, “If we get into those emails, and executives are in the chain knowing what they’ve unleashed on the American public, I’m going to kick it over to a criminal lawsuit. I’ve been to too many funerals.”

Insurers and insureds can act now to get ahead of this rising wave of liability.

It may be appropriate to conduct a review of policy underwriting and pricing. XL Catlin’s Bewlay said, “We are not writing as if everyone is a pharma manufacturer. Our perception of what is happening is that everyone is being held accountable as if they are the manufacturer.

“The reality is that when insurers look at the pharma industry and each part of the supply chain, including the pharma companies, those in the chain of distribution, transportation, sales, marketing and retail, there are different considerations and different liabilities for each. This could change the underwriting and affect pricing.”

Bewlay also suggests focusing on communications between claims teams and underwriters and keeping a strong line of communication open with insureds, too.

“We are here to partner with insureds, and we talk to them and advise them about this crisis. We encourage them to talk about it with their risk managers.”

Tapasak from Integro encourages insureds to educate themselves and be a part of the solution. “The laws are evolving,” he said. “Make absolutely certain you know your respective state laws. It’s not enough to know about the crisis, you must know the trends. Be part of the solution and get as much education as possible.

“Most states have ASHRM chapters that are helping their members to stay current on both passed and pending legislation. Health care facilities and providers want to do the right thing and get educated. And at the same time, there will likely be an uptick in frivolous claims, so it’s important to defend the claims that are defensible.”

Social Service Risk

In addition to supply chain concerns, insurers and insureds are concerned that even those whose mission it is to help could be at risk.

Hailed as a lifesaver, and approved by the Food and Drug Administration (FDA), the drug Naloxone, can be administered to someone who is overdosing on opioids.  Naloxone prevents overdose by blocking opioid receptor sites and reversing the effects of the overdose.

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Some industry experts are concerned that police and emergency responders could incur liability after administering Naloxone.

But according to the U.S. Department of Justice, “From a legal standpoint, it would be extremely difficult to win a lawsuit against an officer who administers Naloxone in good faith and in the course of employment. … Such immunity applies to … other professional responders.”

Especially hard hit are foster care agencies, both by increased child placements and stretched budgets. More details in our related coverage.

While the number of suits is growing and their aim broadening, experts think that some good will come of the litigation. Settlements will fund services for the addicted and opioid risk awareness is higher than ever. &

Mercedes Ott is managing editor of Risk & Insurance. She can be reached at [email protected]