Tag: 2013 News

Applicant played professional football for four years with the Arizona Cardinals (Cardinals) from 1999 to June 24, 2003. The Cardinals are a National Football League (NFL) team based in Arizona, where the players regularly train and practice for games. During the four years applicant was employed by the Cardinals, the team played a total of 80 games; 40 of them in Arizona and the remainder in 16 other states, including 7 games in California.

In the summer of 2010 he heard from another former NFL player, Michael Jameson, that he could file a workers’ compensation claim of cumulative industrial injury in California and he filed an Application for Adjudication of Claim, alleging that he incurred industrial injury to multiple body parts as a result of “cumulative injury” incurred while playing and practicing for the Cardinals during the four year period ending in 2003.

The Cardinals contend that the California Workers’ Compensation Appeals Board (WCAB) should decline to hear applicant’s workers’ compensation claim because each of the three employment contracts he signed with the Cardinals contains an identical forum selection clause that said “This Contract has been entered into in the State of Arizona and in no other state, and the parties acknowledge that the Player’s principal place of employment shall be within the State of Arizona and in no other state. Claims for workers’ compensation shall be filed with the Industrial Commission of Arizona, and the parties agree that they shall be subject to the workers’ compensation laws of the State of Arizona and of no other state.”

The WCJ found that the WCAB “has jurisdiction over applicant’s claim,” but that “Applicant’s contacts with California are not sufficient to warrant exercising the Board’s jurisdiction in light of applicant’s contractual agreement with his employer to file his workers’ compensation claims in Arizona.” Based upon those findings the WCJ further ordered that applicant “take nothing” on his claim for California workers’ compensation benefits, which is tantamount to dismissal of the claim. The WCAB affirmed the decision in the En Banc decision of Dennis McKinley v Arizona Cardinals: The Travelers Indemnity Company.

Under applicant’s theory that each and every game in which he played contributed to the injurious exposure that caused his claimed cumulative injury, at least 16 other states besides California could have concurrent jurisdiction over the claim for workers’ compensation. In that there are 16 other states that could potentially exercise jurisdiction over applicant’s cumulative injury claim for workers’ compensation, the WCAB carefully considered whether that claim is properly adjudicated in California. The answer to that question also implicates the exclusive remedy aspect of workers’ compensation that is part of California law and the similar laws of most states. In view of this limited connection with California, and in light of the Arizona forum that applicant and the Cardinals reasonably identified in their employment contracts, the WCAB decline to exercise jurisdiction over his claim for workers’ compensation.

Applicant’s primary connection during his four years of employment by the Cardinals was with the State of Arizona. The Cardinals’ home base is in Arizona and that is where the team is headquartered. Applicant regularly trained and practiced at the team’s facility in Tempe, Arizona, and he spent the substantial majority of his work time in that state. By contrast, applicant was not a resident of California when he contracted to play football for the Cardinals and his contracts of employment were made in Arizona. The majority of applicant’s work duties were performed in Arizona where he regularly practiced and where the Cardinals played 40 of their 80 games during the period of his employment. In addition, 33 of the other 40 games were played in states other than California. In short, there was limited connection with California with regard to applicant’s employment by the Cardinals and his claimed cumulative injury. In the view, of the WCAB, that limited connection is insufficient for the WCAB to exercise jurisdiction over his claim for workers’ compensation in derogation of the Arizona forum he and the Cardinals reasonably identified in their employment contracts as the place where any claim for workers’ compensation would be filed.

Applicant argues that because he paid California income tax for games that were played in the state he has a due process right to have his workers’ compensation claim adjudicated by the WCAB. However no authority holds that payment of state income tax requires the WCAB to adjudicate an employee’s claim for workers’ compensation, and tax law does not control how California’s system of workers’ compensation is administered, given the very different purposes of those laws.

With respect to public policy issues raised by the applicant, the WCAB concluded “In the special circumstances of this case, we conclude that California has a stronger public policy interest in following the parties’ forum selection clause than it does in exercising jurisdiction over applicant’s claim for workers’ compensation.”

The WCAB concluded “our concern about court congestion and the overburdening of already strained judicial resources is not based upon abstract speculation. The NFL consists of 32 teams playing in 23 states and occasionally in foreign countries. Each club is allowed a maximum of 53 players on their roster. Because three NFL teams are domiciled in California, players from all of the 29 other teams could potentially claim that they incurred some portion of a cumulative industrial injury in California merely because they played one or more games in the state. In fact, numerous claims have been filed in California by professional football players and other professional athletes, and those claims impose a substantial burden on the WCAB’s limited resources.”

As debate swirls about future funding for California’s $3.7 million a year Controlled Substance Utilization Review and Evaluation System (CURES), a new California Workers’ Compensation Institute study asserts that allowing 3rd party payer access to CURES would improve quality of care and strengthen utilization and cost control over opioid prescriptions dispensed to injured workers, which for accident year 2011 claims alone would cut California workers’ compensation claim costs by an estimated $57.2 million

Excessive use of prescription painkillers has become a nationwide public health problem, and a huge cost driver in California workers’ compensation, where highly addictive “Schedule-II” narcotics such as oxycontin and fentanyl have been widely used, even for relatively minor sprain and strain injuries. In 2011, the Division of Workers’ Compensation adopted chronic pain management guidelines to help control the use of these drugs to treat injured workers, but they have continued to account for a growing proportion of workers’ compensation prescriptions. One tool California does have to combat prescription drug abuse is CURES, its 3-year old electronic prescription monitoring program run by the Department of Justice. CURES allows doctors, pharmacists and law enforcement to track the prescription history of patients receiving opioids to identify fraud and abuse patterns. Many workers’ compensation stakeholders assert that access to CURES data, coupled with enhanced medical cost containment strategies (including pharmacy benefit managers, medical provider network monitoring and utilization review) could significantly reduce inappropriate opioid prescriptions dispensed to injured workers. However, since a $70 million cut in the Department of Justice budget was announced in late 2011, the state has struggled to come up with the $3.7 million a year needed to fund CURES.

Using data from prior studies and CWCI’s Industry Claims Information System database, authors Alex Swedlow and John Ireland estimate that 23 percent of the 500,000 California job injury claims in accident year 2011 involved opioid prescriptions. Though the Institute projects that access to CURES would generate no savings on the 41 percent of workers’ compensation opioid claims involving a single prescription, potential savings from reduced medical and indemnity payments on the 59 percent of the opioid claims involving multiple prescriptions would range between 3 to 7 percent – or $57.2 million on the accident year 2011 claims.

Debate over the funding of CURES continues, as Attorney General Kamala Harris this week urged Governor Brown to restore funding for the program in light of the state’s improving budget picture. In the meantime, the Institute has released its analysis in a white paper, “Estimated Savings from Enhanced Opioid Management Controls Through Third Party Payer Access to CURES.” The white paper is available in the Research section of the Institute’s website, www.cwci.org.

Two administrators pleaded guilty Friday to 101 fraud and other charges related to a case that prosecutors say was the largest medical-fraud operation in the nation, while three others charged are expected to go to trial later this year.

According to the report in the Orange County Register, four of the five defendants, office workers at a Buena Park surgical outpatient center, including an attorney, already were tried and convicted in Superior Court Judge Thomas Goethals court in November after a 10-week trial on charges either of filing false tax returns or failing to file taxes or both. A doctor, also charged in the case, has not been tried yet.

The four defendants already prosecuted in the first phase of their cases were personnel connected to Unity Surgical Outpatient Center, where healthy people from all over the United States were recruited for unneeded surgeries, including tummy tucks and hysterectomies, generating $154 million in billings to insurance companies.

When Goethals sentenced the four in December to prison terms on the tax-evasion convictions and ordered them to pay millions in restitution in the first phase of the case, he also told them he would add no additional time to their sentences if they plead guilty to the fraud counts.

The judge said then he felt the tax convictions and the fraud charges were all part of the same “ugly, expensive … felonious scenario.”

Administrators Rosalinda Landon, 66, who received five years and four months on the tax counts, and Dee Francis, 63, who was sentenced to six years in prison on tax charges, accepted the judge’s offer. Unity accountant Andrew Harnen, 58, received the same term as Landon, and lawyer Roy Dickson, 64, got two years and eight months. All four defendants were ordered to pay restitution, ranging from $41,000 to $1.1 million. Harnen and Dickson, each facing more than 100 counts, including insurance fraud and grand theft, did not take the judge’s offer and will to go to trial later this year.

The case is expected to last more than six months, which would make it one of the longest criminal trials in Orange County. If convicted on those counts, the two face more than 55 years in prison.

Orange County prosecutors William Overtoom and George McFetridge have said that Unity doctors performed 1,307 invasive procedures on patients, including some who were recruited and paid between $300 and $1,000 to undergo unnecessary colonoscopies, hysterectomies, the removal of cysts, and treatment of sweaty palms and hemorrhoids.

The prosecutors say Unity billed insurance companies $154 million in a scheme in which 2,841 healthy people from all over the country were recruited for the unneeded surgeries.

To usher in the New Year, Congress passed H.R. 1845, which contains, in part, the bipartisan Strengthening Medicare and Repaying Taxpayers (“SMART”) Act. The SMART Act, as adopted, amends several portions of the Medicare Secondary Payer (“MSP”) statute and aims to simplify and soften portions of the statute that have been burdensome to beneficiaries and industry stakeholders. This legislation has now been signed into law by President Obama. Notably, the beneficial provisions of the SMART Act apply only to non-group health plans (i.e., workers’ compensation, no-fault and liability insurance (including self-insurance) plans) and not to employer group health plans.

According to a summary prepared by the Association Corporate Counsel, “conditional” payments occur where Medicare pays for items or services that are later determined to be the financial responsibility of a group health plan or non-group health plan (each a “primary plan”). In the non-group health plan context, the Centers for Medicare and Medicaid Services (“CMS”) can seek to recover medical costs associated with the illness, injury or incident giving rise to the claim from the non-group health plan or from Medicare beneficiaries or others who receive settlement proceeds. In practice, most demand letters associated with liability settlements are sent to Medicare beneficiaries.

Under current CMS policy, CMS does not issue a “final” conditional payment determination amount until after settlement. Although preliminary information concerning conditional Medicare payments can be obtained prior to settlement, the dispute resolution process post-settlement regarding the appropriate amount can be lengthy and complicated. This has been a source of considerable frustration for Medicare beneficiaries. Further, CMS’ refusal to provide a final conditional payment amount prior to settlement creates additional risk for non-group health plans because CMS can recover Medicare conditional payments from a primary plan for injury related medical care notwithstanding the fact that the plan has already paid the claim and obtained a release for such medical care. Not knowing the final conditional payment amount prior to settlement impedes the non-group health plan’s ability to directly satisfy Medicare’s interests (e.g., by sending one check to Medicare and another to the claimant) because payment of settlement proceeds must generally be made promptly after settlement. This has lead liability insurance and other plans to seek work around release provisions designed to ensure that Medicare’s interests are, in fact, satisfied, adding to the complexities (and timeframes) for settlement.

The SMART Act addresses these concerns by requiring that CMS make a “statement of reimbursement” available to the Medicare beneficiary, his or her authorized representatives, and/or the non-group health plan with the beneficiary consent’s on a secure website prior to settlement of a non-group health plan claim. The settling parties can rely upon the statement as the final agency determination of Medicare conditional payments where certain conditions are met. This will allow the parties to factor the final “lien” amount into their settlement negotiations and allow primary plans to implement more direct and effective strategies for ensuring satisfaction of Medicare’s recovery rights (such as issuing separate checks to the beneficiary and Medicare). The statute imposes specific procedures around the statement of reimbursement process, including timelines for notice to the government in advance of an expected settlement and timelines for CMS’ response. CMS must promulgate final regulations to implement this process within nine months after the SMART Act enactment.

Many stakeholders have expressed concern over the slow and cumbersome process available for beneficiaries who wish to dispute costs that a CMS contractor identifies as Medicare conditional payments on the basis that such costs are not related to the illness, injury or incident at issue. The SMART Act requires that the Secretary provide Medicare beneficiaries and their authorized representatives a “timely process to resolve the discrepancy.” Specifically, if the individual or representative provides documentation explaining the discrepancy and offering a proposal to resolve it, CMS must, in turn, determine whether there is a reasonable basis to include or exclude the claims at issue in the Medicare conditional payment amount within 11 business days after receipt of the document. Additional processes for resolution are specified. The statute does not allow any administrative or judicial review of the Secretary’s determinations under this new process. However, Medicare beneficiaries still would retain the ability, as under current law, to exercise formal administrative or judicial appeals to contest final conditional payment demands from CMS. The Secretary also must promulgate implementing regulations concerning these processes within nine months of enactment.

Under current MSP law, “Responsible Reporting Entities” are required to determine whether a claimant is a Medicare beneficiary and, if so, submit certain detailed information to CMS. An RRE that fails to report the claimant’s information, as required, “shall be subject to a civil monetary penalty of $1,000 for each day of non-compliance with respect to each claimant,” with no exception for good faith efforts to obtain the information. While CMS has yet to publish implementing regulations or, to our knowledge, impose any such penalty, the potential financial risk to RREs is substantial. The SMART Act modifies the statutory language to provide that an RRE “may be subject to a civil money penalty of up to $1,000 for each day of noncompliance” per claimant. Moreover, and equally important, the SMART Act requires the Secretary to publish notice within sixty days of enactment soliciting proposals on practices that will and will not be subject to sanctions for non-reporting, including not imposing sanctions for good faith efforts to identify beneficiaries, and thereafter issue final rules regarding such practices.

Tampa, Florida-based CompPharma is a consortium of pharmacy benefit managers. It’s 9th annual survey report, titled “Prescription Drug Management in Workers’ Compensation” states that claims “payers have gotten the message: narcotics are highly problematic for workers’ comp claimants, employers and insurers.” The new survey confirms that addiction to opioid pain medications and the dispensing of drugs by doctors remain top concerns for workers’ compensation companies. The report relies on survey responses from insurers, third-party administrators, and employers with prescription expenses totaling nearly $475 million.

Concern over the long-term implications of prescribing narcotic pain medications to injured workers has grown during the past two years with respondents to this year’s survey conducted by CompPharma L.L.C. saying the issue remains “very significant.”

Despite relatively flat drug costs, respondents continue to be significantly concerned about the issue. In response to the question “How big a problem are drug costs?” on a 1 through 5 scale with 3 being “drug costs are equally as important as other medical cost issues,” drug costs were rated a 4.1, or “more important than other medical cost issues.” This was three-tenths of a point higher than last year’s results (3.8). Moreover, respondents are concerned (4.2) that drug costs will be more of a problem in the next 12-24 months than they are today.

And consistent with results from last year, respondents judged opioids to be a very significant problem, giving it an average of 4.8, identical to responses in the 2011 survey. This is the highest score for any survey question in the history of the survey, and a clear indicator of the level of the industry’s anxiety over a problem it has yet to fully understand, much less address.

The concern over physician dispensing has grown over the last few years, driven by payers’ own experience and the research from NCCI and WCRI quantifying the dramatic increase in the percentage of drug dollars going to pay for physician-dispensed medications.

In 2010, many responses noted newly implemented programs or steps designed to address opioid use. In 2011, implementing and upgrading those programs was the most common change to respondents’ pharmacy management programs.

Half of all respondents utilized a “urine drug-testing program to monitor claimant compliance.” Among those who did not answer in the affirmative were payers that operated in states where they could not require UDT, although they did encourage or recommend testing whenever possible. Others did not have “formal” programs but did reimburse for UDT and were in the process of setting up a program, or were discussing a program with their PBM. There is a clear indication that this tool is growing in popularity.

Pharmacy management in workers’ comp has evolved dramatically over the nine years that surveys have been taken. From a focus on the price of the pill and the size of the retail pharmacy network in 2003 to today’s concern about opioids, physician dispensing and clinical management, there has been a remarkable increase in sophistication and understanding. With that said, it is evident that despite all the attention paid to and resources focused on this issue, payers’ level of concern about pharmacy management continues to remain quite high.