Correlation isn’t always causation, but fentanyl deaths have risen as legal opioid prescriptions have decreased. This may be one reason why the CDC is rethinking their prescription opioid guidelines.
But if draconian limits on prescription opioids don’t serve public health, what purpose do they serve? Tarence Ray doesn’t answer this exact question in his recent article “United in Rage” about the response to opioid addiction in the Appalachian regions of Kentucky. Ray states that the response to opioid use wasn’t centered on treating people, but rather on criminally punishing users, community vigilantism and generally stigmatizing opioid users.
I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.
The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.
So why did this agreement rub me the wrong way?
Trust and stigma in workers’ compensation
When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly. But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.
Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.
The role of the nurse case manager
One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.
We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.
But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.
How the work restriction agreement works and can work
I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.
The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.
In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions. Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)
Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.
Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.
Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.
As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.
Opiod prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more timeh to perfrom procedures. Procedures are more profitable for doctors and increase cost. Primarry care dcotors are often reluctant to prescribe opiods which puts more pressure on pain management doctors.
There are alternatives to opioids for pain managemen. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.
Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.
As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.
The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws. The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.
The Ohio Bureau of Workers Compensation recently decided to drop the manager of their drug formulary, Optum Rx , who in the words of a court administrator were “hosing” the State of Ohio.
“Told you so,” said me and many other critics of drug formularies.
Drug formularies are touted as a way to reduce opioid abuse and limit drug costs. But formularies are run by pharmacy benefit managers (PBMs) who have been widely criticized for pushing up drug costs. In 2017 The City of Omaha opposed a drug formulary bill in the Nebraska Legislature over similar fears of being hosed by PBMs.
The news out of Ohio came at about the same time as a viral (for the world of workers’ compensation) blog post penned by Judge and Professor David Torrey. Judge Torrey politely bench-slapped an “industry representative” who stated that injured workers needed to “get off their asses” during a panel discussion at a workers’ compensation conference about alternatives to opioids for pain managment.
I understand and share concerns about prescription drug abuse by injured workers. I’ve also encountered clients with serious bowel issues from opioid-induced constipation. Addiction seems to get more attention than digestive issues when it comes to opioids and workers compensation. I believe part of that stems from the fact that calling some an “addict” is away to dog whistle that an injured worker is a malingerer. Turning injured workers into “addicts” is a way of putting some medically-termed lipstick on a moral and ideological pig created by the insurance industry.
Perhaps true to the Trump age, the panelist in Pennsylvania dropped the conern trolling about addcition and voiced the id buried in the dark heart of the workers compensation medico-legal-industrial complex. Telling injured workers that they just need to get back to work is great for cutting expenses for workers compensation insurers. Drug formularies are good way to increase revenue for the insurance-side middleman in the workers’ compensation system. Drug formularies pre-date the opioid crisis, but they were adapted to “solve” the opioid crisis.
In response to the opioid crisis, the insurance industry has medicalized its age old criticisms of injured workers and the drug companies and PBMs have jacked up drug prices. Meanwhile injured employees aren’t getting any real help in how to deal with chronic pain. Doctors have long known that opioid dependence is a serious issue and that there are no easy solutions to chronic pain. Opioid prescriptions have been declining since 2012. If insurers and self-insureds were serious about chronic pain, they would approve alternative pain control methods and give doctors discretion to prescribe medication as needed.
The problem with that solution for insurers and self-insureds is that solution would cost them money. It’s easier to lecture injured workers’ about resilience, churn some money off of drug formularies and shift the cost of pain management back onto injured employees.
Additional licensure and certifications aren’t unheard of in the world of occupational health. In 2016, the Federal Motor Carrier Safety Administration implemented a new rule that only doctors on their registry can perform DOT Physical Examinations for truckers and other professional drivers. This reduced the number of doctors who can perform those examinations.
When I testified on LB 408, a bill that would have implemented drug formularies for opioids under the Nebraska Workers’ Compensation Act, some doctors were testifying that there was little training in regards to prescribing opioids. Though an opioid prescription registry like the DOT examination registry wasn’t proposed, you could certainly see it proposed as a solution to the opioid problem.
But that article also shared studies that state that pain pill prescriptions are not driving the opioid epidemic. Patients with pre-existing addiction issues are more likely to become addicted to opioids and 75 percent of those who develop opioids start taking opioids in a non-prescribed manner. Furthermore, only 12 to 13 percent of ER patients who are treated for opioid overdoses are chronic pain patients.
My topic will focus on working with non-English speaking clients. As we all know, non-English speaking immigrants come to this country for many different reasons, but the vast majority end up in labor jobs: jobs that cause work comp injuries. Personally, I have represented clients from over 20 countries; in Nebraska we have a surprising number of immigrants and refugees who relocate to Nebraska for plentiful jobs and cheap housing.
As a result of this melting-pot of injured workers, my seminar presentation will focus on the Ethics of representing non-English speaking clients. Specifically, I will explain what lawyers should do when a non-English speaking client contacts the lawyer; what issues may arise during litigation; and how to handle non-English speaking clients and interpreters during legal proceedings.
I recently wrote a post about immigration status and workers compensation. You can read that post here.
I will present on opioids in workers’ compensation. I plan on spending some time discussing opioid addiction as a work-related medical condition and some of the factual and legal challenges that come with opioid use in a workers’ compensation case. I will also address digestive and bowel issues that arise with opioid use and how those injuries can be covered by workers’ compensation.
Opioid addiction is a major public health and even political issue. Drug formularies are being pushed as a way to combat addiction by reducing the prescription of opioids in workers’ compensation cases. I plan on discussing why drug formularies should raise serious concerns not just from doctors, but from employees and employers. You can read my blog posts about formularies here, here and here.
Rod Rehm will be presenting on the topic of deposition preparation for plaintiffs in workers’ compensation cases. Rod is a Fellow in the College of Workers’ Compensation and has prepared hundreds of injured workers for their depositions in his long legal career. Earlier in his career Rod worked both as a prosecutor and criminal defense lawyer so he can draw on 40 plus years of litigation experience when it comes to witness preparation.
Drug formularies are touted as a way to fight prescription drug abuse and contain prescription drug cost. But one major Nebraska employer appears to be questioning whether drug formularies really contain prescription costs.
The City of Omaha was echoing widespread concerns about the possibility of conflict of interests in drug formularies. Those concerns were explained by me in a blog post published last December. In short, drug formularies are administered by pharmacy benefit managers. Pharmacy benefit managers make money by negotiating discounts from drug manufacturers. This gives pharmacy benefit managers incentive to put more expensive drugs on drug formularies because they can negotiate a more lucrative discount than they could for a less expensive generic drug.
LB 408 was held in committee by the Business and Labor committee so it is unlikely it will be considered in this legislative session. Opioids abuse is a topic of high interest for political leaders so drug formularies as a way to reduce opioid use will likely be discussed further in Nebraska.
The City of Omaha has a workforce this is more heavily unionized than most other workplaces in Nebraska. In some instances, labor and management will collectively bargain how some aspects of a workers’ compensation program is to be administered. Supporters of organized labor originated the idea of “labor pluralism” during the New Deal and Post-War era. (4) Labor pluralism means that government should minimize interference between the labor-management relationship. In a unionized workplace, labor and management have a complicated relationship that is both cooperative and confrontational depending on the circumstances. A mandate from the state requiring the use of drug formularies could be as undermining labor-management relations when a labor and management have bargained about the administration of workers’ compensation benefits.
While drug formularies are a relatively recent development in workers’ compensation, they are well established in the larger world of health insurance. Drug formularies have long been criticized for increasing costs in health insurance plans by reducing prescription usage because costs are shifted to insureds, which forces insureds to seek more expensive care, because chronic conditions go untreated. Overall costs are increased. The costs are also shifted onto insureds who have to pick up the costs for more expensive procedures that could have been taken care of through medication. Cost shifting from the employer onto the employee, other forms of insurance and the government is already a serious problem in workers’ compensation. Drug formularies in workers’ compensation could exacerbate the issue of cost-shifting.
Do Drug Formularies add up? Cost = Price * Utilization
When you study drug formularies for any amount of time, you run across the equation that drug costs equal price multiplied by utilization. Proponents of drug formularies tout that they can decrease both the utilization and the price of prescription drugs. Ohio has provided detailed information about the decrease in the utilization of certain drugs like opioids because of formularies. However, the decrease in the utilization in opioids cited by proponents of drug formularies coincides with an overall long-standing decrease in the frequency or number of workers’ compensation claims. Fewer overall claims mean less overall utilization, which could explain some of the cost decrease. A better measure of the effectiveness in drug formularies in controlling costs would be measured by looking at prescription cost per claim. So far, drug formulary proponents have been unable to show that data. Even if drug formulary proponents could show that data, there is still the issue of whether reductions in prescription drug costs lead to increases medical costs by forcing injured employees to seek more expensive care that could have been taken care of by prescriptions.
On the price end of the equation, drug formularies are thought to control costs by having pharmacy benefit managers negotiate bulk discounts on prescription drugs. But pharmacy benefit managers have come under fire with allegations that they actually increase drug prices or at the very least are powerless to stop the increases in drug prices. The issue of drug formularies, pharmacy benefit managers and drug prices is complicated and will be addressed in Part 2 of this series.