Author: WorkCompAcademy

A new California Workers’ Compensation Institute (CWCI) study finds that non-steroidal anti-inflammatories (NSAIDs) have supplanted opioids as the most common therapeutic drug group prescribed to injured workers in California, while payment data show that both dermatological medications and anticonvulsants now rank ahead of opioids in terms of total reimbursements.

Using data from 5.75 million prescriptions dispensed to California injured workers from 2009 to June 2018, CWCI analysts examined changes in the prescription and payment distributions among therapeutic drug groups, identified trends in the use of generics, and determined average amounts paid for drugs within each drug group over the past decade.

The results show that efforts to curb inappropriate use of opioids – tighter scrutiny via utilization review and independent medical review; restrictions by payers, medical provider networks, pharmacy benefit managers and in the Medical Treatment Utilization Schedule (MTUS) formulary; and growing awareness of opioid risks – are continuing to have an effect, as opioids fell to 18.0% of the prescriptions filled in the first half of 2018, down from 20.2% in 2017, and down from 30.5% a decade ago.

Conversely, NSAIDs, often prescribed as non-opioid alternatives to treat pain, surpassed opioids as the top drug group in California workers’ compensation in 2016, and since then, their share of the prescriptions has continued to grow, climbing to a record 31.7% of the drugs dispensed to injured workers in the first half of 2018. Anticonvulsants’ share of the prescriptions also has increased, more than doubling from 4.1% in 2009 to 9.7% in the first half of 2018, likely due to their growing use as a non-opioid alternative to treat neuropathic pain.

The 2018 data show anticonvulsants were the third most prescribed drug group, moving ahead of muscle relaxants, which under the MTUS formulary that took effect on January 1, 2018, are not exempt from utilization review, with the exception of limited special fill or perioperative allowances that restrict the quantity of the drug that can be dispensed.

Until a few years ago, growth in dermatological payments was largely driven by high-cost “custom” pharmacy compounded drugs, but with legislative changes that took effect in 2012 (AB 378), high-profile indictments involving compounded drug kickbacks, and more public awareness, custom compounds have become less prevalent, though the study notes two other factors now underlie the continued growth in dermatologlical payments:

– – the increased prevalence of high-cost, mass-produced private label topicals containing one or more active ingredients (e.g., capsaicin, lidocaine, menthol, or methyl salicylate) commonly found in over-the-counter topical analgesics, which are marketed to physicians for in-office or mail order dispensing; and
– – increased payments for topicals containing a prescription NSAID (e.g., diclofenac) which are available in a number of formulations and strengths, some of which are exempt from utilization review under the formulary.

In addition to the increasing share of the workers’ compensation prescription dollars going toward dermatologicals, the study also found that anticonvulsants’ share of the drug spend tripled from 4.8% in 2009 to 15.2% in the first half of 2018, so anticonvulsants now rank ahead of opioids as the second most costly drug group.

The data show that most of the growth in anticonvulsant’s share of the payments occurred over the past four years, coinciding with the decline in opioid use, suggesting the use of certain anticonvulsants in place of opioids. Notably, anticonvulsant prescriptions used in California workers’ comp are heavily concentrated in just two drugs, one of which is only available as a brand drug, and that drug accounted for nearly three quarters of the anticonvulsant dollars paid in the first half of 2018.

As Medicaid officials investigate whether pharmacy middlemen are ripping off taxpayers by manipulating drug prices in the insurance program covering 3 million poor Ohioans, the Ohio Dispatch reports that another state agency recently found it overpaid millions under a similar arrangement.

“We thought we had a solid contract that kept us from being taken advantage of (but) discovered we were being hosed,” said John Hanna, former pharmacy program manager for the Ohio Bureau of Workers’ Compensation.

“I’ve been a pharmacist since 1977 and I was stunned when I saw the level of manipulation that went on that I didn’t know about,” said Hanna, who retired last September after eight years.

After nearly a year of investigating, Ohio is taking its first steps to recover money from pharmacy middlemen who do billions of dollars worth of business with state agencies. The bureau spent about $86 million last year on pharmacy claims for about 41,000 injured workers.

Attorney General Dave Yost announced Tuesday that he is seeking repayment of nearly $16 million paid to pharmacy-benefit manager OptumRx by the Bureau of Workers’ Compensation. Yost intends to take OptumRx to nonbinding mediation, saying the company has overcharged the bureau since 2015. Such mediation is required under the contract between the bureau and OptumRx. If it fails, the dispute presumably will be taken to court.

“The state of Ohio and the BWC consider these matters of public significance and have calculated the following overcharges attributable to OptumRx’s failure to adhere to agreed discounts on generic drugs. …” says a copy of Yost’s Feb. 11 letter to OptumRx that was obtained by The Dispatch.

The firm that conducted the analysis, Healthplan Data Solutions, determined that OptumRx overcharged BWC by $5.7 million in 2017. That’s 6.5 percent of the $86 million in total agency spending on prescription drugs that year. The bureau fired OptumRx as a consequence of the analysis.

The bureau’s analysis, conducted by the Columbus-based Healthplan Data Solutions, found the private company hired by the bureau to run its pharmacy program overcharged the agency $5.6 million in 2017.

As described by Hanna, workers’ comp was paying pharmacists less to fill prescriptions than they were charging the state, allowing them to pocket millions.

In industry jargon, the practice is known as “spread pricing.” Serious questions about are being raised about it in Iowa, Kentucky, Arkansas and nationally

Hanna said “PBMs started in ’80s to process prescriptions and they slowly grew in the marketplace and realized they had the ability to control pricing and reimbursements. That’s where the concept of the spread came in – you’re my client and I tell you I will process prescriptions for you for your prescription drug plan for X dollars, and then I go to the pharmacies and tell them I will pay you X minus $9 and that’s my spread.”

“The client has no idea what the pharmacy is being paid unless they have a transparent contract.”.

The U.S. Supreme Court rejected Maryland’s bid to revive a law aimed at preventing price gouging by pharmaceutical companies, dealing a setback to the power of states to rein in prescription drug costs.

Last year, Maryland became the first state in the country to give its attorney general the power to take legal action against drug companies that dramatically increase the price of off-patent or generic drugs.

The complicated law applied to generic or off-patent drug makers that manufacture a medicine at least three other firms also make. If those conditions applied, companies could not impose a significant price increase without justifying it to the attorney general, who could ask a judge to order that the price increase not take effect. Violating the law carried a $10,000 fine.

The Association for Accessible Medicines, a trade group representing generic drug manufacturers such as Teva Pharmaceutical Industries Ltd and Mylan NV, sued its Attorney General Brian E. Frosh and Dennis R. Schrader, who was the state’s acting health secretary, to block the measure.

The case worked it way to the U.S. Court of Appeals for the Fourth Circuit, which said in a 2-to-1 ruling that the 2017 law is unconstitutional because it violates the commerce clause of the U.S. Constitution.

“Although we sympathize with the consumers affected by the prescription drug manufacturers’ conduct and with Maryland’s efforts to curtail prescription drug price gouging, we are constrained to apply the dormant commerce clause to the Act,” Judge Stephanie D. Thacker wrote for the majority opinion. “We hold that the Act is unconstitutional under the dormant commerce clause because it directly regulates transactions that take place outside Maryland.”

Maryland argued that the 4th Circuit’s decision not only prevents Maryland and other states from reining in abusive prescription-drug prices that harm consumers and public health but that the ruling could call into question other state regulatory efforts. At issue was whether the measure violated Supreme Court precedents that constrain states from enacting laws that burden out-of-state competitors.

The U.S. Supreme Court just declined to take up Maryland’s appeal of the 2018 federal appeals court ruling, without comment, letting a lower court ruling against the law stand.

So far, California as had better results with S.B. 17. The California law requires all drug price hikes over 16% over a two-year span to be subject to transparency requirements, which would discourage double-digit price increases and better negotiations between drug companies and purchasers.

Last August, the U.S. District Court, Eastern District of California dismissed a lawsuit brought by the Pharmaceutical Research and Manufacturers of America (PhRMA) to halt S.B. 17.

PhRMA filed this lawsuit alleging the law as unconstitutional and seeking a permanent injunction preventing its implementation. The U.S. District Court dismissed the suit as PhRMA did not produce enough facts to substantiate their claims or standing.

Evangelina Ruiz began work as a legal assistant with Carter and Carter, APLC in 2007 at their office in Corona. Christopher Carter specialized in mold and mold remediation cases.

In September 2011, Christopher Carter accepted a tort case involving black water and mold in a house. Ruiz was assigned to inspect documents in the case, which she alleged contained mold and mold spores.

Ruiz became ill. Ruiz filed a worker’s compensation claim but Carter advised Ruiz it did not carry worker’s compensation insurance during the time that she alleged to have been sickened by the documents.

Ruiz filed a lawsuit in the trial court and with the Worker’s Compensation Appeals Board (WCAB).

The second amended complaint filed in the trial court, which alleged one cause of action for premises liability. Carter brought a motion for summary judgment, which was granted by the trial court.

Ruiz appealed the grant of Carter’s Motion claiming that (1) because Carter was an illegal uninsured employer, she only had to prove worker’s compensation causation, which is a lower standard than the civil causation standard used by the trial court in granting the Motion; (2) pursuant to Labor Code section 3708, Carter had the burden to prove it was not negligent; and (3) the trial court erred by rejecting Ruiz’s argument when she filed the first amended complaint, that she could allege different theories of negligence

The court of appeal conclude the Motion was properly granted and affirm the judgment in the unpublished case of Ruiz v. Carter & Carter, APL.

LC 3706 states, “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.” LC 3708 mandates a presumption not present in other tort actions that the injury to the employee “was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence.”

Here, Ruiz had the burden of proving by a preponderance of the evidence that she was injured in the Carter offices. Ruiz failed to provide any competent evidence with the SAC to support she was injured at Carter’s office.

The burden of proof did not shift to Carter under Labor Code section 3708 to prove that it was not negligent because Ruiz failed to present competent evidence that she had suffered an injury at work.