Author: WorkCompAcademy

The Division of Workers Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) have made changes to lien and attorney fee disclosure statement requirements which went into effect on January 1, 2017. The changes were made to implement provisions of Senate Bill 1160 and Assembly Bill 1244. The changes are as follows:

1) In compliance with SB 1160, DWC has made available an amended lien form which includes the required declaration affirming eligibility under penalty of perjury per newly enacted Labor Code Section 4903.05(c) effective January 1, 2017.

All liens filed after January 1, 2017 must use this new form. The new lien form and the required declaration are now available for all e-filers and JET Filers. All filers that must pay the filing fee are required to fill out the declaration. Liens filed without the declaration will be dismissed.

2) Also available for e-filers and JET Filers is a declaration for all liens filed prior to January 1, 2017 that require a filing fee under Labor Code Section 4903.05, as mandated by SB 1160. The declaration, which must include information on the type of services provided by the lien claimant, must be filed by July 1, 2017.

The Workers’ Compensation Appeals Board (WCAB) has posted new rules on this requirement, and has scheduled a public hearing January 4 on the proposed regulations.

3) SB 1160 also requires that all lien claimants file an original bill with their lien. This is a new requirement that is mandatory for all lien filings as of January 1, 2017.

4) To comply with the new requirements for the attorney fee disclosure statement introduced by AB 1244, DWC has made available a revised attorney fee disclosure statement form in compliance with recently amended Labor Code Section 4906. An amended form with the required information is now posted on DWC’s website.

The City of Santa Monica’s costs for workers’ compensation rose sharply last fiscal year, prompting a warning by the City’s finance director that a 53 percent increase in funding likely will be needed soon.

According to the report in the Santa Monica Lookout, the City spent approximately $9.3 million on medical treatment and indemnity payments for injured employees in the 2015-2016 fiscal year. That was a 22 percent increase from the previous fiscal year, when the City spent $7.6 million on disabilities, mostly due to the aging of its workforce, especially in its police and fire departments and its bus system.

The City has 564 cases still on its books, a number that Finance Director Gigi Decallaves said has been steady in recent years.

Although the City made some “modest” gains, such as slowing the frequency of claims in some departments, the improvements were “eclipsed” by higher program expenses, such as cash flow, and total liabilities, or the value of all open claims from 1979 forward.The City spent another $10.5 million on those costs in fiscal year 2015-2016, a 19 percent jump from the previous year, Decavalles said.

Worse still, the City’s few spots of good news were “completely over-shadowed” by “substantial growth” in the average cost per claim because of higher permanent and temporary disability expenses, she said.

“Moreover, the City’s claim profile is cause for concern,” she said. “A high frequency of continuous trauma-oriented injuries, coupled with an aging workforce, suggests that program costs will continue to rise well into the future.” Both temporary and permanent disability cases were the City’s biggest problem.

The report blamed climbing costs for permanent disability expenses on 2012 state legislation (SB 863) that mandated an overall 30 percent hike in the award schedule. It rose 64 percent, from $1.4 million last fiscal year to $2.6 million this year for the City.

Temporary disability costs grew as well, driven by the lengthening amount of time employees of the Fire Department and Big Blue Bus system were granted to recover from injuries. Those cases totaled $3.1 million this fiscal year, a 19 percent hike from last year’s $2.6 million.

But a particularly difficult problem for Santa Monica is the dominance of “cumulative trauma oriented” injuries, which are common among an aging workforce like the City’s.

This fiscal year, the City settled 131 claims for a total of more than $3.2 million – an increase of almost 80 percent from the $1.8 million paid out for 98 settlements last year.

In all, workers’ compensation total liabilities increased to $27.8 million by June 30, 2016, up from $25.7 million a year earlier, an eight percent increase, Decavalles said. Most of increase occurred in the Fire Department, followed by the Police Department and the Big Blue Bus (BBB), she said.

Decavalles called the rising compensation coats during fiscal year 2015-2016 an “adverse experience” that is going to be felt “going forward.”

The City’s Workers’ Compensation Self-Insurance Fund for the 2017-2018 year will need to be increased by $7.1 million, or from $13.4 million to $20.5 million — or 53 percent — to “maintain an adequate confidence level,” the report said.

Santa Monica has approximately 2,200 full-time employees, City officials have said.

The federal government saw a spike in utilization in the prescription compounding industry that led investigators to an estimated $2 billion in fraud in claims to Tricare nationally beginning in 2013 and running into last year.

Across the country compounding pharmacies were charging as much as $10,000 to $20,000 each for prescriptions and some hired marketers who used Facebook and other social media to target military families, enticing them with inclusion in research studies and telling them of creams and salves that were pain relievers, migraine headache medicines and scar reducers, said Jason Mehta, a Jacksonville-based assistant U.S. attorney for the Middle District of Florida.

The cost to actually compound these creams was often only about 5 percent of the submitted cost, according to the Department of Justice. Compounding pharmacies were making in the range of 90 percent profit on each prescription.

According to the Defense Health Agency that oversees Tricare, costs for compound drugs skyrocketed from $5 million in 2004 to $514 million in 2014. Costs topped $1 billion in the first six months of 2015. Tricare went to Congress for help so the agency could make the payments, and rules were changed to make approvals of compound prescriptions more stringent. The agency was on track to lose $2 billion in 2015 alone until the controls were put in place in May, said George Jones, chief of pharmacy operations at the agency.

And now the promise of criminal prosecutions has materialized. In Arizona, a dozen doctors, pharmacy owners and marketing pros accused of a kickback scheme that prosecutors allege involved a sham medical study used to bilk up to $102 million from the publicly-funded federal health program for military family members.

Federal prosecutors said the scheme involved prescribing “compounded” drugs such as pain, scar and migraine creams to military families covered by Tricare, the federal health insurance program for active-duty and retired military and family members.

There have been at least two other federal probes alleging pharmacies paid kickbacks to doctors who ordered expensive compounded drugs for patients. One involved a California pharmacy that billed the state’s worker’s compensation program for pricey markups. In another, a Florida doctor was indicted on a charge of taking kickbacks for sending prescriptions, which billed Tricare and Medicare for creams that cost as much as $21,000 for a one-month supply, according to a federal indictment.

The Texas case centered on a Dallas-based company called CMGRX LLC, or Compound Marketing Group. Federal prosecutors allege that the marketing group arranged kickbacks to doctors who prescribed and Tricare-insured patients who purchased drugs from four compounding pharmacies.

Tricare enrollees were paid study “grants” of $250 per month for each prescription they obtained from a partner pharmacy.

“The defendants and their co-conspirators falsely represented that the study was approved by Tricare and that it was designed to evaluate the safety and efficacy of compounded drugs,” the indictment stated. “In reality, the PSI study was not approved by Tricare, was not overseen by a qualified physician, epidemiologist or other medical professional, had no control group, and was not designed to gather any useful scientific data relating to the safety or efficacy of any drug.”

The indictment alleged that Simmons also recruited an El Paso doctor, William F. Elder-Quintana, who wrote thousands of prescriptions that cost Tricare $96 million through June 2016. Elder-Quintana and other doctors were paid $60 for each pain or scar creme prescription or $30 for each vitamin prescription, the indictment said.

The indictment also alleged that marketing group employees would contact Tricare’s pharmacy-benefits consultant, Express Scripts, to find out whether certain drugs were covered. These employees then would adjust the prescriptions to maximize payments from Tricare “without any regard for the medical necessity for the prescriptions.”

The indictment accused marketing group employees of sending prefilled prescription forms to Elder-Quintana, who it alleged would sign the prescriptions after a cursory telephone interview with the patient. Other times, marketing group employees would use a stamp with Elder-Quintana’s signature to order prescriptions, the indictment stated.

The federal court case brought by 38 former National Football League players seeking to force the NFL to recognize chronic traumatic encephalopathy (CTE) as a covered disease under workers’ compensation has been withdrawn.

Instead of pursuing their joint case, the players will file separate workers’ compensation claims in individual states, according to their lawyer.

The U.S. District Court for the Southern District of Florida in Ft. Lauderdale, Judge Beth Bloom dismissed the suit (Gaiter et al. v. National Football League) without prejudice.

The plaintiffs’ lawyers – Tim Howard and Miguel Amador of Howard & Associates in Tallahassee – voluntarily withdrew their complaint. They explained that the players have decided to proceed with filing state claims. “We are going forward aggressively state-by-state as that is the least risky approach to secure the recoveries for our clients,” Howard told Insurance Journal.

Earlier, on Dec. 5, Judge Bloom had stayed the case pending a decision on whether it should be transferred to the federal court in Pennsylvania that is handling multidistrict litigation involving concussions and the NFL.

The U.S district court in eastern Pennsylvania, under U.S. District Judge Anita B. Brody, oversaw a consolidation of concussion lawsuits against the NFL and reached a settlement valued at as much as $1 billion in potential benefits for more than 22,000 former players. Earlier this month, the U.S. Supreme Court let stand that concussion settlement, deciding against hearing complaints by some former players that the settlement is inadequate and unfairly treats current versus future brain injuries differently.

The workers’ compensation case brought in federal court did not have a great chance of succeeding, according to lawyers reached after the complaint was filed but before it was withdrawn.

“The first real hurdle here is that it is questionable as to whether a federal court is even the proper forum to determine a state workers’ compensation issue. The answer is most likely no,” Justin R. Parafinczuk, a civil trial attorney and partner with the Florida firm Koch Parafinczuk & Wolf, P.A., told Insurance Journal.

He said the complaint essentially asked the federal court to declare CTE a compensable occupational disease under workers’ compensation laws that vary by state.

“This request would basically strip the defendants’ rights to defend themselves at a traditional worker’s compensation hearing, where the plaintiff or, as referred to in worker’s compensation, the claimant would have the burden to prove these allegations to a worker’s compensation judge, and the defendants would be able to present all available defenses,” he said. This would require the federal court to do an “extensive analysis of the worker’s compensation laws of every state where a defendant resides,” something he said the court would be “highly unlikely” to undertake.

The other hurdle was the players’ Collective Bargaining Agreement, under which CTE is not recognized.

With more attention on the impact of opioid addiction and the role of overprescribing, drug companies have come under more scrutiny for suspicious and sometimes unsavory marketing practices.

A lot of the spotlight has been directed toward Purdue Pharma, the makers of OxyContin. A company that already paid $20 million in a settlement with 27 states, attorneys general across the country many years ago.

Unsealed court documents indicate that the drug manufacturer went to great lengths to stop preauthorization of OxyContin in West Virginia despite concerns from public health officials.

The warning signs of what would become a deadly opioid epidemic emerged in early 2001. That’s when officials of the state employee health plan in West Virginia noticed a surge in deaths attributed to oxycodone, the active ingredient in the painkiller OxyContin.

They quickly decided to do something about it: OxyContin prescriptions would require prior authorization. It was a way to ensure that only people who genuinely needed the painkiller could get it and that people abusing opioids could not.

But an investigation by STAT claims that Purdue Pharma, the manufacturer of OxyContin, thwarted the state’s plan by paying a middleman, known as a pharmacy benefits manager, to prevent insurers from limiting prescriptions of the drug. The financial quid pro quo between the painkiller maker and the pharmacy benefits manager, Merck Medco, came to light in West Virginia court records unsealed by a state judge at the request of STAT, and in interviews with people familiar with the arrangement.

The strategy to pay Merck Medco extended to other big pharmacy benefit managers and to many other states, according to a former Purdue official responsible for ensuring favorable treatment for OxyContin. The payments were in the form of “rebates” paid by Purdue to the companies. In return, the pharmacy benefit managers agreed to make the drug available without prior authorization and with low copayments.

“That was a national contract,” Bernadette Katsur, the former Purdue official, who negotiated contracts with pharmacy benefit managers, said in an interview. “We would negotiate a certain rebate percentage for keeping it on a certain tier related to copay or whether it has prior authorization. We like to keep prior authorization off of any drug.”

Katsur said prior authorization programs do little to eliminate inappropriate prescribing by “bad doctors” and usually just create needless paperwork for doctors working in the best interest of patients. She said some doctors simply won’t deal with the hassle of a prior authorization program, resulting in some legitimate patients not getting the medication they need.

“You don’t want to make it harder for a doctor to prescribe when they are doing the right thing,” she said.

In addition to keeping OxyContin from being subject to prior authorization, the rebates paid to pharmacy benefit managers were used to guarantee favorable status for OxyContin on their listings of approved drugs, Kastur said. PBMs commonly place drugs in different tiers on these lists, called formularies. Some tiers are more restrictive and require higher copayments. Purdue wanted OxyContin placed in the least restrictive tier – and succeeded.

The relationship with Merck Medco was so important that Purdue moved Katsur to New Jersey so she could be close to Merck’s national headquarters, she said.

It is common for drug companies to pay rebates to gain preferential treatment from companies hired by insurance plans to manage prescription drug benefits, but in this case the arrangement removed a key safeguard in the system that may have slowed the growth of OxyContin as it became a national bestseller that eventually peaked at annual sales of $3 billion.

The former Merck Medco was purchased by Express Scripts in 2012. A spokesman for Express Scripts said no one currently at the company had knowledge of the West Virginia contract. A spokesman for Purdue Pharma said the company had no comment.

In McDowell County, where the court records from a state lawsuit against Purdue were unsealed, the local sheriff said prescription pill abuse is so rampant that the county plans to file a new lawsuit against painkiller makers.