Drug Formularies in Workers’ Comp—Good for Injured Workers?

Episode Notes

Transcript

Workers Comp Matters
Drug Formularies in Workers’ Comp—Good for Injured Workers
04/25/2019

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

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Alan S. Pierce: Welcome to Legal Talk Network and Workers Comp Matters. I am your host. My name is Alan Pierce. I am an attorney in Salem, Massachusetts with the law firm of Pierce, Pierce & Napolitano, and we are happy to bring you another edition of Workers Comp Matters with our guest Tom Holder. We are going to discuss drug formularies and their role in workers’ comp.

But before we begin, I want to thank our sponsor PInow. Find a local qualified private investigator anywhere in the United States. Visit pinow.com to learn more.

I want to introduce our guest. Tom Holder is a lawyer in Atlanta, Georgia. He is with the law firm of Gerber & Holder. He graduated from Case Western in Ohio. He got his Juris Doctor Law Degree at Emory University School of Law. And he has been practicing as a claimants’ attorney, handling workers’ compensation cases for about 33 years, since about 1986.

He is AV rated by Martindale-Hubbell. He has chaired or belonged to all of the relevant Bar Associations and Committees on workers’ comp. He has been inducted as a Fellow in the College of Workers Comp Lawyers, and he is currently in the middle of his one year term as President of the Workers Law and Advocacy Group, otherwise known as WILG, the National Workers’ Comp Bar Association where Tom gets to really get an eye on all of the current issues around the country and in fact has traveled quite a bit in his capacity as President of WILG.

So I want to welcome Tom to the show. Thank you for being a guest to discuss a hot issue in workers’ comp, drug formularies, thank you Tom.

Tom Holder: Thank you for having me Alan.

Alan S. Pierce: All right, before we really get into our topic, since you have been quite busy as President of WILG, you have had the opportunity to meet a lot of our members and travel to a lot of states in which workers’ comp is and has some issues going on. Maybe we can just begin with just a couple of minutes of your overview of the first half of your term as President, what you are picking up around the country as to issues that are of concern to people who deal in this law of workers’ comp.

Tom Holder: Yes. Well, thank you Alan. As you said, I was inducted in our convention at the end of October and I have probably spoken on about eight or nine different occasions.

WILG is a national organization and as such we also have some regional conferences. So I have spoken at the North East Regional Conference in New York and I recently spoke at the South East Regional Conference in New Orleans, and at those conferences we have lawyers from those parts of the country come to discuss workers’ compensation issues.

I also recently spoke with the Virginia Trial Lawyers Association and their Workers’ Comp Group and I have also spoken to the Alabama Lawyers and the Michigan Lawyers.

Later on, actually next month I will be going to Delaware and I am planning on going up to Maine in August to discuss various workers’ compensation issues with the lawyers in those states.

I think that we are talking about an issue that is very relevant to practitioners throughout the country, that of opioids, what is the best way to manage the infusion of opioids into the entire healthcare system, and I think that our talk today is very timely, because I think that is the most important issue right now.

Alan S. Pierce: Yeah, we have done at least two or three shows on chronic pain, chronic pain management and opioids and the impact of the proliferation and long-term duration of opioid use to manage chronic pain and the difficulties that poses and the challenges both for the health of our clientele as well as the impact on their families.

So that does give us a nice segue into drug formularies. When I first heard the term, drug formulary, I had no idea what it meant, we do not have them in Massachusetts, so perhaps we could begin by having you describe what is a drug formulary?

Tom Holder: Well, I would say that a drug formulary is a limited list of medications, and it is generally an insurance-driven formulary and I guess guidelines, although they are much more stringent than guidelines. And it is the way in which the insurance companies regulate the amount of medications that can be prescribed to injured workers.

For example, if a doctor does a back surgery, the drug formulary will actually regulate the amount and duration of the medications that can be prescribed to that injured worker.

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Alan S. Pierce: All right, people who have been proposing drug formularies point to statistics that indicate that where a particular jurisdiction allows drug formularies, there are significant savings in prescription medication costs and decreased prescriptions for various medications, including opioids. What’s so wrong with cutting medical costs?

Tom Holder: Well, I think that we have to take a very nuanced view of drug formulary, specifically in the opioid realm. There is certainly no doubt that there is an opioid problem within the United States, but I have not seen any statistics showing, first of all, that there is an opioid problem within workers’ compensation. I would argue that a lot of opioid issues come from the unregulated and non-prescription uses of opioids.

The problem is that — there are a numbers of problems. Besides that, another issue is that in workers’ compensation, a lot of alternative types of theories — of modality for treatment such as chiropractic or allowing for yoga as a back straightening method is not allowed. So when you prevent all of those other types of ways to cure back pain or that help with back pain, when you don’t allow any of them, and then all that’s left is opioids, and then you regulate the amount of opioids, you are really not helping the injured worker. And I would argue that it’s really just about saving money for the insurance company and you don’t really see much concern with how it impacts the actual injured worker who has to take the drugs and hopes to get well enough to be able to go back to work.

Alan S. Pierce: Now, in addition to a formulary listing particular drugs, is there also an issue of the substitution of generic medications for brand medications and what might the impact be on people that are accustomed to taking a brand name medication and switching to a generic?

Tom Holder: Well, I think that as a general concept, I think there is really nothing specifically wrong with that, but I think that it is fair to say that a generic is not an adequate substitute for the name brand drug in every instance.

I have had a few clients who have had a lot of trouble taking the generics for whatever reason and it becomes virtually impossible for them to be able to get the name brand drug without going through a lot of steps, and of course we are talking about people with chronic pain issues and while those are being fought, they are still there in chronic pain and it’s hindering their care.

Alan S. Pierce: Right. Earlier you had mentioned that drug formularies are a creation or they are put in place by insurance companies. Is this the general way that drug formularies find their way into a particular state or does it have to go through the legislative process and become part of the workers’ comp statute? In other words, can a workers’ comp insurer just unilaterally decide that we want to prepare a list of allowed drugs and that’s it, or do they have to go through a process that allows debate?

Tom Holder: That’s a very good question. Of course in most states it has come through the legislative process, of course who is lobbying for the formularies, I mean I think it’s pretty clear.

One thing that we are seeing in our State of Georgia, there are people that are trying to get us to start having an opioid drug formulary, and one of the concerns that we on the claimant side have concerns with is that they might try to implement that just by making changes in our medical fee schedule or by changing rules without having to go through the legislative process, but it’s fair to say that generally they are implemented through the legislatures.

Alan S. Pierce: One of the facts that proponents arguing for drug formularies in workers’ comp sometimes overlook conveniently is the fact that in most states, and perhaps you can address Georgia, and I can address Massachusetts, our respective states, but most states even without drug formularies have other mechanisms and/or safeguards. There is oftentimes a utilization review or preapproval process that’s in place by statute. There are also medical treatment guidelines. There are other types of fees schedules, etc., that are already in place, so that adding drugs listed that are allowed and I suppose the ones that aren’t listed are disallowed is just another layer of administrative burden that make it difficult for physicians and providers of medical services to really have an active role in deciding what’s best for their patient.

Do you find that also in Georgia; do you have similar other mechanisms for cost containment?

Tom Holder: Well, as you know, and I am sure many of our listeners know, delay and denial of medical care certainly rank at the top of problems within the workers’ compensation system certainly in the 30 plus years that I have been practicing workers’ compensation law. While everybody is fighting over what’s appropriate and what’s not appropriate, you have an injured worker in pain, who is either not getting medical care that he needs or not getting the medicines that he needs in the post-surgical realm.

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Technically, we do not have utilization review except in very specific situations, but there are a number of workers’ comp insurers that use utilization review, particularly where surgeries are involved.

Alan S. Pierce: One other phenomenon that I think I have seen, even though we don’t have drug formularies, but I can envision in states that do, the more difficult it is for an injured worker to access medical care, whether it’s alternative treatment such as chiropractic or sometimes psychological treatment or, for example, medications, the more hurdles there are along the way. The injured worker finds another way to pay these costs.

And so we have seen an increase in what I think has been described as cost shifting, so that the burden of treatment falls upon somebody other than the workers’ comp carrier. Do you see that as an issue with states that have established drug formularies and the increasing difficulty for the worker to get the drugs that the doctor prescribes for them?

Tom Holder: Absolutely, I have seen that quite a bit and a real increase in the last few years.

Now, we are also in the state that did not have the Medicaid expansion, so there is a wide range of working people who would have access to healthcare outside of the workers’ comp system if we had it.

But one thing that I have been seeing more and more is that if a claim has been denied for some reason or treatment for a body part is denied or medications are denied, if our clients have access to other healthcare, they would go ahead and get it, they don’t want to wait for six or nine months for the insurers and the court system to hash out whether, for example, they can have a back surgery, they would just as soon use their own medical care, their own health insurance and get it done and then try to recoup the cost of the copayments and deductibles when the case gets settled.

Alan S. Pierce: All right, we are going to take a break and when we come back we will continue our discussion on drug formularies and the opioid issue around the country with our guest Tom Holder. We will be right back.

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Alan S. Pierce: Hey, welcome back. This is Alan Pierce again with Tom Holder. We are going to pick up on our conversation of drug formularies.

Tom, give us an idea of maybe some or most of the states that have drug formularies in workers’ comp already in existence.

Tom Holder: All right, I would say there are 13 states that have drug formularies; I think to my mind Texas and Washington are probably the most known, I think that their formulary models have been used in some other states.

They are kind of spread out. There are a number of them in the Northwest. I know in the South, we always used to be a target because of our generally conservative legislators. It’s a state that might be more amenable to something like drug formularies.

Alan S. Pierce: Now, when drug formularies are introduced into a workers’ comp bill or a piece of legislation and it goes through the process, there have been states, have there not, where the proposals to establish such formularies have been defeated by, I presume, people that are expressing an interest to the injured worker, be it organized labor or groups like WILG, groups of injured workers or even perhaps some medical providers themselves, is that generally a fair statement that the opposition comes from those groups?

Tom Holder: Yes, I think actually my home State of Georgia would be a good example. As I said before, there is a very strong interest in having at least an opioid drug formulary in Georgia, Injured Workers’ Advocates as attorneys and we are looking for other allies such as organized labor, which of course is not that great in the South, but also aligning with doctors. We can reorganize and also try to align ourselves with the Medical Association of Georgia, because most doctors are not in favor of drug formularies either, because they don’t want an insurance company telling them how to practice law.

Alan S. Pierce: Practice medicine.

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Tom Holder: I am sorry, practice medicine, that’s right. Sometimes the law and medicine overlap, as we know.

One thing is that WILG has a position — has come out with a position paper with alternatives that WILG thinks would be good alternatives to a drug formulary, and one of them is to emphasize the quality of care rather than an arbitrary reduction of the number of type or type of prescriptions. And that’s of course where we are in complete alignment with the doctors.

Alan S. Pierce: Yeah. One of the things I have found is that insurance carriers or employers that have to pay the premium associated with the cost of a workers’ comp case, they will take a look at something like the cost of Oxycontin or the cost of Fentanyl or the cost of other types of narcotic pain meds and they will work very hard to control those costs, but when it comes to expressing a willingness to pursue other modalities, whether it’s pharmacological or psychosocial counseling or alternative medicines, they don’t want to pay for that either.

So from my perspective, having a drug formulary or arbitrary limitations on the type or amount of duration that a physician can prescribe drugs, oftentimes leaves my clients or the injured workers sort of left hanging. If they have been taking oxycodone or Oxycontin or other types of medications for which they have become habituated and all of a sudden it is cut off because it doesn’t meet certain criteria, who is looking out for them? How do we deal with that?

Tom Holder: I completely agree. As you may know, my longtime law partner retired in September and I took over a number of his cases, and in one of his cases his client had been taking very heavily regulated opioids for 15 years and has been doing the job and she has been able to function and she is very heavily monitored so there is no abuse, and now all of a sudden she went to see her doctor and her doctor said I can’t prescribe these for you anymore. What is she supposed to do at that point?

I would argue that in certain situations that’s the type of thing that will drive people to taking nonprescription and street drugs and that’s when problems really begin.

Alan S. Pierce: Right. And one of the other things we really ought to remind our audience that over the last few years, because opioid overdependence is a problem, and it does have adverse health effects, a lot of things have already been instituted by federal law, by state law, and by just good medical practice and that is the contract that the recipient of opioids has to sign with his or her doctor talking about not seeking drugs from another source, required urine testing, blood testing and close monitoring, seeing the doctor every four weeks that is prescribing these meds, so that they are already in place between doctor and patient, a number of safeguards.

And yes, are there situations where this is abused or doctors exceed their authority? Yes, it is, but the question is whether or not a listing of drugs that are allowed and a blanket rule that covers everybody is really the best way to combat the isolated problems that exist.

Tom Holder: Yes, I have a couple of comments about that. There is a website called statnews.com, which is a website that has a lot of information in the health field, so I look at it every now and again, and on December 6th of last year there was an article in it called ‘Overzealous use of the CDC’s opioid prescribing guideline is harming pain patients’, and it’s a very scholarly article.

And what they pointed out is that opioid prescribing, and this is at the end of 2018, is currently at an 18-year low and that the rate of prescribing opioids has dropped every year since 2011, yet drug overdose deaths have skyrocketed. So there seems to be not that much relation between the prescription use of opioids and opioid deaths. And of course in the workers’ comp system, of course these are all prescribed and regulated use of opioids already.

Alan S. Pierce: So is this study suggesting that this increase in opioid deaths is due to the street drugs or getting these medications from sources other than strictly prescribed?

Tom Holder: Yes.

Alan S. Pierce: All right, I think we can agree that if you look at workers’ comp in the broad sense, indemnity or wage loss benefits have gone down steadily for years and that whatever increases there have been in the cost of workers’ comp cases has been more in the medical side, and that’s not unique to workers’ comp, it’s not unique to Massachusetts or Georgia, it’s pretty much widespread around the country, but of course increased medical costs outside of workers’ comp is also a big issue.

So I can understand, perhaps you can comment or weigh in on the fact that yeah, the medical costs are escalating higher than they should, so anything that could reduce those costs as a drug formulary or other mechanisms such as treatment guidelines and rate limitations is a good thing to keep costs under control, but what else might be going into the rate of increase of medical costs in the workers’ comp system?

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Tom Holder: Well, I would also argue that there is a lot of “cost containment” already going on within the workers’ compensation system, such as utilization review, which is where if the authorized doctor — and we have an Employer of Choice state, so our clients are already going to doctors that have been vetted and approved of by their employer, the authorized treating physician, who is the lead doctor on the case, if that doctor authorizes surgery, almost invariably there will be a sending to a doctor for a second opinion, or there might be a utilization review, which means that a doctor outside of our area will review the medicals to see if he agrees with the doctor who has already made the surgical recommendation.

So already between the second opinion doctor and the utilization review, there is two extra doctors who have taken a look at this client’s medical care and those things are always assigned to medical. They are under the general rubric of medical care, not cost containment as a separate listing item. So it’s a little bit misleading when you are talking about medical going up.

And I mean it’s been a few years, but I saw a study in California that said cost containment was costing almost as much money as it was reducing medical cost. So I don’t really know how helpful that has really been.

Alan S. Pierce: Well, this is probably a good place to wrap up. This is not a debate that’s going to end soon. We keep seeing every year in different states the introduction of other cost containment measures, including drug formularies. I think those of us who represent injured workers, we all have a role in the system to try to make the system as fair and balanced as possible and certain cost containment mechanisms are necessary, I think we can agree, it should not be a blank check.

But by the same token, we have to make sure that whatever is proposed is not only fair to the physicians who treat our clients, but also more importantly, to our clients themselves.

So Tom, I want to thank you for being a guest. If somebody wants to reach you or get some more information, how could they reach you, what’s your email address?

Tom Holder: They can reach me at [email protected], and please feel free to contact me if you have any questions.

Alan S. Pierce: All right, well, that concludes our discussion on drug formularies with our guest Tom Holder. Thank you for listening. Look forward to our next show here on Workers Comp Matters. This is Alan Pierce, thanking you for listening, and go out and make it a day that matters. Bye-bye.

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

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