Monday, June 30, 2014

I am Learning More, Does that Mean I Understand More?

In "The Heart of the Matter," former Eagle Don Henley gives us that line, "the more I know, the less I understand." It describes so much in life. As I study the efforts at cost controls in workers' compensation, and try to diligently follow the news across the country, this line came to mind. I think I am knowing more, but question if I am understanding less (does it just lead to more questions?)

Texas has adopted a closed formulary, an effort to restrict the methodology by which prescription medication is provided to injured workers. In the formulary model, there are medications that are presumptively acceptable for treatment of injured workers; they are listed in the formulary. Other non-listed medications can be prescribed, but are subject to a different degree of scrutiny and must be pre-authorized.

I described this in a post Zohydro and Closed Formularies last December. The ability of Texas to react to the concerns about Zohydro or other medications is an advantage of the closed formulary, but is only part of the story. Implementation of the formulary decreased opiod scripts in Texas about 10%.

The Workers' Compensation Research Institute (WCRI) released a June 2014 report Impact of a Texas-Like Formulary in Other States. What is the result of the closed formulary from a financial perspective? The Texas experience is described in the report, and supports that prescribing habits have changed in Texas since the formulary was implemented. The legislation that allows the formulary was passed in 2005. After years of development, it was adopted in December 2010, not a quick process. 

On September 1, 2011 the formulary became effective for new claims occurring after that date. The claims that were already existing at that time were labelled "legacy claims" and were unaffected by the formulary for the time being. In 2013 the restriction became effective on all claims in Texas, regardless of accident date.  The two-year implementation phase-in from 2011 to 2013 for legacy claims was designed to allow time for physicians to make adjustments in their patients' treatment, adopting formulary substitutes, or to adjust to the process required for prescribing non-formulary medication.

According to WCRI's study, the impacts on costs in Texas were notable. The prescriptions of medication not on the formulary list decreased 67% in 2011. The cost of "non-formulary drugs" decreased over 80%. The report notes that prescription costs overall also decreased in Texas following the formulary implementation. For the drugs listed in the formulary, the decrease was nominal, about 4%.  

An interesting process conclusion came from the study. The expectation was that a physician electing not to prescribe a non-formulary medication would instead substitute a formulary script in its place. The WCRI study concludes that this did not occur, however. Instead, faced with a desire to prescribe a non-formulary substance, the physicians tended to simply "not write the prescription." It is fair to say that both the volume and the cost of prescriptions changed following the adoption of the formulary. 

Texas is different. There is no avoiding that conclusion. It is a state that has been reforming and constricting its workers' compensation programs for years. There are significant portions of the Florida workers' compensation act that were influenced or inspired by the Texas statute. That is nothing new in workers' compensation. Since the first constitutionally acceptable acts were adopted, states have tended to plagiarize each other to some extent. As with the Oklahoma opt out, questions will be asked about whether and how innovations in Texas might work elsewhere.

So, what is the potential for savings by other states if they follow the Texas lead and adopt the "closed formulary" model? This is the real focus of the WCRI study. The study analyzed claims in 24 jurisdictions, including Florida. The Florida analysis included almost 13,000 claims, 9,677 of which included at least one prescription, and a total volume of 77,428 scripts. The study included most of the large workers' compensation states such as California, Florida, New Jersey and New York.

The research concluded that in Florida about 14% of all scripts were for medication that are not on the Texas formulary. If the same formulary were adopted in Florida, physicians would either seek preauthorization and continue prescribing these, elect to instead prescribe a formulary substitute for these, or elect to forego the prescription entirely. 

In this multi-state analysis where the percentage of non-formulary scripts ranged from just under 10% to almost 16%, Florida at 14% was near the top. Only South Carolina, New Jersey, Arkansas, Virginia, Louisiana and New York had higher percentages. WCRI reports that the non-formulary prescriptions are dropping in Florida. The 14% reported for 2012 is down from about 18% a year earlier. 

The cost prediction was more notable. According to the study, that 14% of Florida prescriptions accounted for about 24% of the Florida workers' compensation prescription costs. As with the volume, the cost percentage (24%) in 2012 was also a decrease from 2011, when it was about 30%. New York's non-formulary prescriptions accounted for over 35%. Clearly the cost impact of the "non-formulary" scripts can vary significantly between jurisdictions. 

Notice that the data supports that use of the medications not listed on the Texas formulary is already dropping in Florida despite the lack of a formulary here. Might factors other than the formulary be likewise contributing to the data in Texas?

The study notes that other factors can impact the cost of medications and therefore the analysis of the formulary concept. Two notable discussions include the impact of name brand versus generic medications and the impact of physician dispensing. Each would therefore bear consideration in the overall analysis of whether a closed formulary would be efficacious for Florida. 

Returning to Don Henley, the chorus of the song says "I've been trying to get down to the heart of the matter, but my will gets weak, and my thoughts start to scatter . . .." A friend of mine used to constantly remind me that we may focus too much on the "what is so" and not enough on the "so what." All of these analyses are interesting, they measure what is currently occurring in delivery of prescription medication, but "so what?" 

The real issue is whether other states like Florida will look to something like a closed formulary to further reduce costs. As a generality, states seem to have a recurrent and sometimes a constant interest in reduction of costs and rates. 

According to WCRI, if Florida adopted the Texas formulary, the prescriptions for non-formulary medications in Florida would decrease from the 14% reported in 2012. They estimate that this would decrease to something between about 4% and 10%. Whether the current trend of decrease, without the formulary, will continue is not addressed.

WCRI estimates that prescription cost savings from the adoption of the Texas formulary would range from 14% to 29% for the states studied. The report predicts that New Jersey, Virginia, Massachusetts, Pennsylvania, Connecticut and Maryland could each see savings in excess of 20%. The study concludes that Florida's savings would be about 18% to 19%. That is significant.

Of course, there are cautions and qualifiers. The researchers acknowledge that physicians in any other state may or may not react to the formulary restriction similarly to Texas physicians. Remember that the reaction in many instances in Texas was to just not write a prescription rather than substituting a formulary substance for a non-formulary substance. Essentially WCRI is saying that if history repeated itself the savings could be thus, but are not saying that history will necessarily repeat itself if the formulary is adopted in other states. 

Is it time to decide if you are a fan of the formulary idea? Perhaps. My point, however, is not that the time for decision has come. My point is that history teaches us that ideas for cost savings and rate reduction tend to attract legislative attention. The idea of a closed formulary will be debated in states other than Texas. Whether Florida gives the idea consideration is yet to be seen. I do think it is time to begin to understand the formulary concept so that a valid public conversation can be had here if it is proposed here. 

Is there a negative impact on patient care based on constriction of medication choices? Is there a cost on health care providers in completing paperwork to use non-formulary medications? Is there an impact on patient recovery, either in time or extent, from the use of formulary as opposed to non? What would the reduction in prescription costs actually translate to in terms of premium cost savings to employers? Are there efficiencies, savings, burdens, costs inefficiencies associated? 

All interesting lines of analysis. If the idea becomes a subject for debate in Florida, which will be the "heart of the matter?" I hope the more we come to know on this the more we understand.

Wednesday, June 25, 2014

The First Social Program Bankruptcy is Upon Us

In May, the Fiscal Times reported that Social Security Disability is in financial trouble. Hardly news, that has been heard for years and has been either ignored or given lip service. No real solutions have been brought to the table. Unfortunately, in America issues with disability programs like Social Security and workers' compensation tend to get attention when there is a crisis.

What is news is that the sky is perhaps falling more rapidly than they predicted. The Fiscal Times says that the SSDI cash flow will run dry in 2016. Their prediction leads to the conclusion that this is no longer a problem that can be kicked down the road to the next group of elected representatives. The insolvency will either be dealt with or the repercussions felt in the next Congress. 

According to the Fiscal Times in May 2014, eleven million Americans are receiving Social Security Disability (SSDI). According to Census.gov the U.S. population is about 318 million, so about three percent of the population is receiving SSDI. 

The average SSDI recipient is drawing $1,129.51 per month. So the program is consuming about $12.4 billion per month, about $150 billion annually just in disability benefit payments. There are likely additional resources consumed by the administrative burdens of processing and adjudicating SSDI claims, as well as the normal business of making and keeping track of payments. 

Also according to Census.gov 23.5 percent of the population is under 18 and 13.7% are over 65. So the full-time working population can be estimated at about 62.8%, or about 200 million people. Thus, each full-time worker in the country, if contributing equally, would need to pay about $750.00 per year to support the current population of SSDI recipients.

SSDI is a program that affects many who are injured on the job. It is not uncommon for individuals to receive both workers' compensation and SSDI benefits. The concurrent receipt was predictable and Congress acted to address it in 1981 according to workers' compensation guru Jon Gelman. Therefore, there is a provision of the federal law that allows Social Security to "offset" amounts received from workers' compensation. This allows Social Security to reduce its payment based upon how much the beneficiary receives from workers' compensation.

In a legislative grace, that calculation, referred to as the Social Security Offset, is not applicable if the state workers' compensation law provides for a reduction in workers' compensation based upon what is received from Social Security. In other words, Social Security reduces its payments unless the workers' compensation payments are reduced under state law. The states that have adopted this reduction in workers' compensation benefits are referred to generally as "reverse offset" states. Mr. Gelman characterizes this as Social Security "subsidizing a select group of states."

He identifies the "reverse offset states" as "California, Colorado, Florida, Louisiana, Minnesota, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Washington and Wisconsin." The largest states for workers' compensation are California, New York, Illinois, Pennsylvania, Florida, Washington, Ohio, New Jersey, and Texas (see, How Huge is it?). Note that of the ten largest workers' compensation states, six are "reverse offset states." Not only are the states "select" as Mr. Gelman describes, they include some of the largest programs in the country.  

There is also a paradox alleged in which Social Security and unemployment compensation interact, or don't depending on perspective. These seem in-congruent. Unemployment would presumably be a benefit for those who can work, but cannot locate employment and SSDI would be for those who cannot work due to disability. 

The Fiscal Times reported in September 2012 that "many Americans have simultaneously relied on disability and unemployment insurance," and that such payments are "allowed under the programs' different eligibility requirements."  They say that about "117,000 Americans double-dipped" using the two programs simultaneously "during the height of the jobs crisis." The Times claims that this cost the American taxpayer about $856 million in 2010. 

Why is the SSDI insolvency impending so soon? The Times reports in the May 2014 article that the volume of beneficiaries has increased by 73% since 2000. Experts prognosticate that the increase is the result of population growth, "the aging population," and the "larger number of working women eligible for the program." The article notes that others believe the increase results from 1984 policy that "expanded the qualifications for disability."

Whatever the cause, an increase of 73% is statistically significant. Anecdotal evidence reveals that some have suggested that the increase may be a result of decreasing benefits available under state workers' compensation programs, leaving some populations of the disabled with SSDI as their only support, thus increasing applications.  Whatever the cause, it appears that SSDI will be the first of the Social Security programs to become bankrupt.

In July 2012, the Fiscal Times reported that "both the Obama administration and congressional Republicans say that they are weighing reforms to salvage the finances of the disability system before the politics of the issue harden along partisan lines." 

It is almost two years later, and "weighing reforms" appears to be ongoing. During the next Congressional term the first of the Social Security bankruptcies, SSDI, will occur. When will reform be addressed, and what form will it take? 

Will eligibility be restricted based upon the disability causes that are included? Will the monthly benefits available to each beneficiary be reduced? Will taxes on working Americans be increased to fund the current recipient volume and extent or even more so to fund the increased volumes that could be predicted based on the recent significant growth rate? Will the legislative grace of the "reverse offset" be eliminated, shifting more burden back to the "select" states involved? Will there be some offset or exclusivity between the unemployment and disability programs? Are there other solutions, partial or total?

Is there some magical solution in which everyone gets all they want and there is no tax increase? If there is, I have not heard it yet. 

If there were some magical solution to the conundrum of limited resources and unlimited potential beneficiaries, it seems someone would have tried to legislate it by now. What we do know is that the situation will soon come to the end of the "what if" and "weighing reforms" stage and will have to progress into some solution. What is as likely is that no one will be completely satisfied with that solution. Unfortunately, situations in which everyone is completely satisfied simply do not occur very often in the realm of taking resources from some and giving them to others. 

Monday, June 23, 2014

Are you a Conscientious Objector?

Are you a conscientious objector? Does it matter? In Florida workers' compensation, it may not. However, there are some states that provide a conscientious objector exception to workers' compensation's compulsory nature. 

"Conscientious objector" is defined by Wikipedia as "individual who has claimed the right to refuse to perform military service." (the wiki page has a site to a primary source, but I elect to use Wikipedia). As a side note, did you know it has become increasingly common for courts to cite to Wikipedia in support of their opinions? You would likely get laughed out of college for doing so, but . . ..

Conscientious objector status in a broader context has become a part of workers' compensation law. There are at least five states that provide some relief for employers and employees whose convictions or beliefs preclude their collection of insurance benefits. Tennessee, Ohio, Pennsylvania, Missouri and Wisconsin all have some provision. 

Tennessee allows some construction service providers to be exempt from the requirements of workers' compensation if the person "is a member of a recognized religious sect" and is "conscientiously opposed to acceptance of workers' compensation benefits from the present law." The law restricts its application to "no more than five individuals associated with one business entity." Public chapter 476; this is a recent addition to Tennessee law. The Secretary of State's Workers' Compensation Exemption Registry may be found on their website at http://tnbear.tn.gov/wc.

Ohio has a similar provision, but is not limited to construction services providers. It provides "An employer who is a member of a recognized religious sect" and "is conscientiously opposed to benefits to employers and employees from any public or private insurance" may "apply to the administrator of workers' compensation to be excepted from payment of premiums and other charges assessed under this chapter. Ohio Revised Code 4123.15. Their exemption has been in the law since 2003. 

Pennsylvania requires workers' compensation coverage for employees, but lists a variety of exemptions. One of which is for employees of an employer that has "been granted exemption due to their religious beliefs by the Department of Labor and Industry." 

Missouri allows an employer to request exemption from workers' compensation law "in respect to certain employees "who are members of a recognized religious sect or division, as defined in 26 U.S.C. 1402(g)." The process requires filing of forms and affidavits. Section 287.204, 287.804. 

Wisconsin requires that employers provide workers; compensation. However, their law allows the employer to seek department approval for exemption for particular employees. This is available to employees who are "conscientiously opposed to accepting the benefits of any public or private insurance . . . including any benefits provided under the federal social security act, 42 U.S.C. 301 to 1397f." This provision requires that a representative of the religious sect makes a representation that the sect has a "long-standing history of providing its members who become dependent on the support of the religious sect as a result of work related injuries" "with a standard of living and medical treatment that are reasonable."  Wisconsin Statute 102.28.

New York has considered a similar exemption. They explain the justification for such an exemption is that some groups "do not take advantage of the program benefits offered under current workers' compensation laws" and as such should be able to "forgo payments on behalf of this employee into the workers' compensation benefit system." They note that the federal government has already recognized the conscientious objector status regarding Social Security. 

Is this an idea whose time is coming? It is interesting to see what other states are doing with workers' compensation. There is a great summary of annual legislation provided each year by the National Conference of State Legislatures








Tuesday, June 17, 2014

The Expanding Role of the NAWCJ

The National Association of Workers' Compensation Judiciary (NAWCJ) is in Nashville this week, providing judicial training at the Tennessee Workers' Compensation Educational Conference. We are proud to be here, it has been an interesting road. Read on to understand who the NAWCJ is and how we got here. 

In 2008, I was speaking with Jim McConnaughhay and Judge Lazzara at the WCI conference in Orlando. The conversation evolved into a discussion of why there was no educational function or group dedicated specifically to the workers' compensation adjudicator. Steve Rissman and Judge Robert Cohen joined the conversation. From our interest, a working group evolve; later talks included Judges Hawkes and Wolf of the First District Court. Meetings were held, and documents drafted. On March 23, 2009 the Articles of Incorporation were filed in Tallahassee and the National Association of Workers' Compensation Judiciary was born. 

On August 17 & 18, 2009 the NAWCJ held its inaugural Judiciary College in conjunction with the Florida Workers' Compensation Institute, now know as simply the Workers' Compensation Institute. Topics that year included Judicial Stress and Behavior, Judicial Writing, Evidence, the Code of Judicial Conduct, and occupational medicine. It was a great success. 

In the years since, the annual Judiciary College has become a fixture at WCI each August. Adjudicator attendance has grown despite the difficulties of hard economic times, constrained state budgets, and resulting travel restrictions. We have had attendees from Arizona, Washington State, California, Minnesota, Maryland New Jersey, Pennsylvania, Kentucky, Virginia, South Carolina and various places in between. In recent years, our attendance has been about 100 adjudicators annually. In August 2014 we will host the 6th Annual Judiciary College. We have a great group coming together from across the country for this event.

In September 2009, the inaugural issue of the Lex and Verum newsletter of the NAWCJ was distributed. Through 2009 and into 2010, the distribution grew consistently until it was distributed monthly to about 1,000 adjudicators and regulators of various state workers' compensation systems. In 2013, the fiftieth monthly issue was distributed. Every issue is archived at www.NAWCJ.org.

The organization took hold, and expansion began. The original organizers on the board were joined by adjudicators from a variety of states including Georgia, Maryland and Pennsylvania in 2010. Soon we also had Board members from Kentucky, Louisiana, Texas, and Virginia. I am certain I am missing some states, but the point is made. Though the first two Presidents were from Florida, Judges Lazzara and Lorenzen, the national nature of the organization became clear when Judge David Torrey of Pennsylvania became President in 2012. This August, he will ascend to the best job in any organization, Past-President, and the Honorable Michael Alvey of Kentucky will become President. 

In 2013, the NAWCJ was invited to partner with the International Association of Accident Boards and Commissions, the IAIABC. They hold a convention annually at various locations; in 2013 it was in sunny San Diego. Through the extraordinary efforts of Elizabeth Crum (PA) and Karl Aumann (MD), a Judicial education program was jointly presented by the IAIABC and the NAWCJ at that conference. Topics included Evidence, Mediation, Appeals, and an adjudicator's roundtable discussion.  This event marked the first time the NAWCJ expanded its efforts beyond the annual Judiciary College in Orlando. 

Growth in the area of educating workers' compensation adjudicators continued in 2014. With Tennessee's legislative decision to form an administrative hearing process for their workers' compensation claims came the appointment of the inaugural Tennessee Compensation Judges. The NAWCJ was invited to jointly produce a New Judge's College with the Tennessee Department of Labor, Division of Workers' Compensation

That agency is headed by Abigail Hudgins, whose efforts towards a smooth implementation of the new administrative process have been nothing short of herculean. On June 17-19, 2014 leadership of the NAWCJ are in Nashville at the Tennessee Workers' Compensation Educational Conference providing training for the first eight Tennessee judges, as well as judges participating from other jurisdictions. 

The details of the program and the biographies of the new Tennessee judges are in the June 2014 Lex and Verum. We congratulate them and Tennessee generally on this historic step. 

The Association is proud of and grateful for the contributions of the faculty of this College, Hon. Michael Alvey (KY), Hon. Steve Farrow (GA), Hon. Melissa Jones (D.C.), Hon. Sheral Kellar (LA), Hon. Dwight Lovan (KY), Hon. Jim Szablewicz (VA), Hon. David Torrey (PA), Hon. Jonathan Weatherby (KY), and Hon. Jane Williams (KY). Leaders and trend-setters from seven jurisdictions providing a transition to the bench for the newest jurisdiction to embrace the administrative model. 

In September 2014 the NAWCJ will again team with the IAIABC to produce an adjudicator's program in conjunction with their 100th anniversary celebration in Austin, Texas. The NAWCJ is indeed vibrant and dynamic, filling a niche and supporting the education and collegiality of those many who strive to adjudicate disputes in this unique marketplace across the continent. 

None of this would have been possible without the vision and financial support of the WCI and its leadership, James McConnaughhay, Steven Rissman, J. David Parrish, and Gerald Rosenthal. There has also been significant financial support from a variety of Associate Members and Judiciary College sponsors, who are frankly to numerous to mention here individually. 

I congratulate the leadership of the NAWCJ, whether mentioned herein by name or not. The organization has developed tremendously since that conversation in 2008 and has a great future before it in building the knowledge and collegiality of adjudicators, through the Judiciary College, through the monthly newsletter, and through its cooperation with other great organizations like the WCI, the Tennessee Division of Workers' Compensation and the IAIABC. 

Monday, June 16, 2014

Back to School, or Just "SAY IT!"

The movie Back to School, starring Rodney Dangerfield came out in 1986. It essentially deals with the protagonist's (Dangerfield) decision to attend college to be closer to his less than enthusiastic son. Professor Terguson is played by the loud and often rude comedian Sam Kineson. His stand-up routine catch phrase was "say it," which he would scream at the audience. 

This catch phrase "say it" was picked up in the movie to great effect. In one scene, Professor Terguson screams in Dangerfield's face "say it!, say it!" Dangerfield responds with what he thinks Terguson may want in terms of some historical event, and Professor Terguson calms down and compliments him on the answer. Dangerfield turns to his class mates and sarcastically says "Good teacher. He really seems to care. About what I have no idea."

I have been reminded of the scene recently with some pleadings. So much in the practice of law could be simpler if you just "say it." Of course, I am not advocating that someone get up your face like the comic Profession Turguson. Another of Kineson's catch phrases can be editorialized thus "I don't condone frustration, but I understand it." There is frustration on both sides of the pleading process, I hear it from attorneys and from judges. 

Attorneys lament that their motions are misunderstood, under appreciated, and ultimately unsuccessful. Judges lament that the motions they receive are rambling, unclear, and insufficient for making a decision.

Both of these can be solved. 

One great example is the motion or stipulation for attorneys fees. I hear from lawyers when these are denied. Usually, the conversation begins with some explanation that there has been a denial and the attorney cannot comprehend why. After looking through the paperwork, I usually identify a statement that I think might have changed that outcome. 

Believe it or not, there are instances in which attorneys have sought approval of fees from an injured worker because they represented the Claimant. I know that sounds ok, and representing someone is usually why attorneys are paid. But the mere fact of representation is not necessarily enough to justify payment of a fee under the statutory construct we work within. 

There has to be some action (attorney) that garners a reaction (payment or provision, that is "obtention of benefits"). It says so in the statute. When drafting the motion or stipulation, why not "say it," that is track the statutory language and simply say this benefit was not provided or was denied, attorney name filed a petition (wrote a letter, made a phone call, etc.) and the denial was rescinded and/or the benefit was provided. Then add for effect "the attorney action (insert) resulted in the provision of (insert benefit) to the injured worker."

This does not have to make for a long motion. That can be said in a simple, straightforward and quick manner. This explains why a fee is due. Sure, it takes longer than simply, "I represented this person and so a fee is due," but it is also more likely to provide the judge with sufficient information to make a decision. Just "SAY IT!"

Another example that occurs somewhat frequently is the continuance motion. The statutory language is "the reason for requesting the continuance arises from circumstances beyond the party's control." I am surprised at how often I see a continuance motion that does not track or recite that statutory language. Generally, I see these when an attorney calls me after their motion has been denied. These calls are often angry and the target of the anger is usually the judge, as in "how could she/he not grant this?"

Why verbally dance around the point? The point is that something happened, that something was beyond control, and that something justifies a continuance. "SAY IT!" Why not just say, "this  (insert event/occurrence) happened, it was beyond the moving party's control because . . ." This can be simple, clear and short. Hint, if you cannot articulate how it was beyond your control, there is a good chance the judge will not be any more able to infer it from the absence of description or explanation. 

When seeking relief, one of my early mentors taught me, it is helpful to cite the authority that supports the judge siding with you. Provide the statute or the rule. When citing a rule, it is helpful to make it the right one. I still see motions (old forms) that cite the pre-DOAH procedural rules. Those have been revoked by the Court, they are not applicable, they are a nullity (this has been true for over ten years). What message are you sending when you cite defunct rules? 

After citing the statute or rule, follow and recite the actual language. State the element "beyond control" and then state how your situation fits that language. State the action of counsel and the resulting benefit obtained. There is no need for flowery legalese, or two-paragraph descriptions. Too much verbiage and large complex words can confuse and distract more than they help. Keep it simple. Tell the judge the criteria from the rule or statute and then simply state how your situation meets it.

When you meander, wander, and ramble, you frustrate than serve your purpose. When your exposition and enunciation of justification and illumination are contumacious and extensive they may dissimulate or dissemble, confuse or confound and one may conclude that you are prevaricating. Instead, just "SAY IT!"

With any luck, the Judge will do the same, and you won't find yourself saying "Good judge. She/He really seems to care. About what I have no idea."



Wednesday, June 11, 2014

Case Law You Might have Missed

Some cases worth reading came out of the Florida First District Court of Appeal ("DCA") this week. A couple were noted in the workers' compensation newswires, but an interesting one was not. The first two were "per curium" decisions. According to Wikipedia*, this means that they are decisions of "the court (or at least, a majority of the court)" and are anonymous. 

In Brevard County School Board v. Acosta, the  Court elucidated on the "hindrance to recovery" doctrine. The injured worker had a right shoulder injury. She sought care for that, and for treatment to her left shoulder. There was no dispute that the left shoulder was unrelated to the work accident. She alleged however, that the "result from the left shoulder repair will be better if the left shoulder surgery is performed first." The medical expert testified consistently with that, but agreed that the "ultimate result from the right shoulder surgery would be unaffected by the order" in which the surgeries are performed. 

The trial judge concluded that the left shoulder procedure, or lack of it, was a hindrance to the recovery of the work injury, that is the right shoulder, and ordered that the Employer pay for the left shoulder surgery first. The DCA reversed and explained the "hindrance to recovery" doctrine, stating "The relevant inquiry is not whether the left shoulder surgery is medically necessary, but rather why it is medically necessary." 

The medical evidence supported that the need for left shoulder surgery was to avoid further injury to the left shoulder. Thus, the DCA reminded, the doctrine was not applicable here; "unless the purpose is to remove a hindrance to treating the compensable right shoulder injury, the doctrine does not apply." Had the testimony been that the "result from the right shoulder repair will be better if the left shoulder surgery is performed first" the outcome might have been different.

In Kroll v. United Parcel Service, the injured worker was denied temporary total disability benefits (TTD). The trial judge cited the limitation in Fla. Stat. 440.15(3)(c), which says that the eligibility for temporary benefits "terminates on the expiration of 401 weeks after the date of injury." The injured worker argued that the term "temporary benefits" as used in this section do not apply to TTD benefits. 

The Court concedes that Fla. Stat. 440.15(3)(c) is labelled "permanent impairment and wage loss benefits." Thus, arguably applicable to those benefits and not the commonly thought of temporary indemnity benefits found in Fla. Stat. 440.15(2)(TTD) and Fla. Stat. 440.15(4)(temporary partial disability, or TPD). On that note, the Court agreed that the limitation on temporary benefits might be "somewhat out of place" in the statute, but concluded that "the Legislature's intent that (eligibility to) such benefits be limited to 401 weeks" cannot be ignored.

Neither of these are unanimous decisions, and the dissenting opinions are likewise interesting reading.

The same day, the Court rendered F.T.M.I. Operator v. Limith. This case did not show up on the workers' compensation news wires. Here the Employer filed an extraordinary writ, called certiorari, with the Court. This asked that the Court intervene regarding a non-final order of the Judge of Compensation Claims, denying a motion to dismiss for failure to prosecute and a motion to compel Claimant to file a verified motion for fees. 

In most instances, parties are able to seek review by Florida's appellate courts only after a final order has been rendered by the trial judge. Then, the appellate court can determine if there was error and correct any such error. The term "extraordinary" is instructional. These writs will only be effective when the party seeking relief can demonstrate why it is critical for the appellate court to intervene in a situation before it reaches a final order. 

The Employer argues in Limith that denial of its motions caused irreparable harm because the Employer thereby is “forever stripped of its right to assert the statute of limitations" as a defense. Essentially this argument is that with no adjudication of fees, and the issue of fees having been reserved, the statute cannot run under the Court's analysis in Longley v. Miami Dade School Board in 2013. 

The Court recognized the "conundrum faced by the E/C," but stated that the "solution to this problem (assuming one is needed) lies not with an expansion of this court’s certiorari jurisdiction but rather with an amendment to chapter 440 or the 60Q rules to establish deadlines for the adjudication of fee claims." 

The Petition for Writ of Certiorari was denied by the Court. It stated that the harm alleged could be "reviewed on subsequent plenary appeal" and that therefore the record did not demonstrate "irreparable harm" to the Employer that would justify the Court granting certiorari. This third case is interesting reading as regards the process of extraordinary writs.

* Wikipedia is accepted as a definitive authority by the Florida First District Court of Appeal, see Truje-Perez v. Arry's Roofing.

Monday, June 9, 2014

Medical form over Substance

The State of Nevada addressed issues with medical forms in its May 2014 Medical Unit Newsletter. They recently learned that "treating doctors are charging injured employees to complete workers' compensation forms." They acknowledge that fees for form completion are "common" in many "other types of insurance coverage," but caution this practice is "not acceptable with injured workers" under Nevada law. Doctors who charge for this in workers' compensation could face significant fines according to the newsletter. It is a reminder that doctors tend to see the paperwork as something additional to the care they provide to a patient.

Also recently, Medpagetoday.com featured an article The Trouble Festering in Primary Care by Dr. Pelzman. He makes some interesting points about the paperwork challenges for primary care physicians. Dr. Pelzman notes that he receives calls from patients and he has to then create a referral to some other provider such as a dermatologist. He does not explain why he receives calls instead of sees the patients. He says that upon receipt of the calls, he "more often than not" needs to "select some benign (or made up) diagnosis ("dermatitis" or "Nevus, non-neoplastic") that will allow the patient to be seen since we most likely do not know why they are there, and allow the dermatologist to be reimbursed by the insurance company." the parentheticals are from the original. Ignore for a moment that he is making up a diagnosis. 

Dr. Pelzman complains that completion of the referral form is "work that no one should have to do. A ridiculous administrative burden has been created that prevents every one of us, no matter the level of our licensure, from being able to do the jobs in healthcare that we are desperately trying to do." I am wondering if the job is seeing and diagnosing patients? If it is, why not see the patient, make a diagnosis, then make a referral if same is necessary instead of just desired? 

He questions "who made up this stuff," and explains that no one in the doctor's office wants to complete these forms. He explains that this "stuff" should not be any part of the health of our patients, any part of the healthcare system of our country." He argues that people who enter into contracts (buy insurance) should not be troubled with meeting the terms of the contract (see primary care before specialist, see specialist on referral of primary care). His arguments seem to reject the primary care provider model relied upon by some insurance contracts. Of course there are a wide variety of options out there, including insurance contracts that patients can purchase that do not require such primary care "gatekeeping." Dr. Pelzman does not address whether doctors should be making up diagnoses or making referrals to specialists for patients and conditions which she/he has not evaluated as the primary care doctor. 

He concedes that some form of data collection is likely needed, to document that physicians are "optimizing the use of health information technology," to improve health and track diseases, and to keep costs under control (can we track the existence and prevalence of disease when primary care doctors make up diagnoses for patients they have not seen and report those maladies to insurance companies?). He laments the current process of administrative burdens "so onerous, so taxing, that we should not be surprised if no one in their right mind chooses to enter the healthcare field at the present time." He does not explain how his views on the legitimate goal of improving health or tracking disease is furthered by making up diagnoses, which are then likely tracked by the healthcare system.

He concludes that "if I never have to fill out another prior authorization form or threshold utilization override form, or transportation form, or any other form that adds nothing to the care of my patients, I'll be ecstatic beyond belief." 


The point that is missed is that America has become a vast bureaucracy. There are forms to fill out for anything we need or want in this worldAnd, yes, they are part of providing medical care under some contracts into which people enter. It would be much more efficient if a physician could tell a patient the name and dosage of medication and send them to the store where the patient would buy and appropriately use the medication. Why can't the patient buy an antibiotic without paying the doctor $100 for an office visit and prescription? Apparently we can get a referral to a specialist with a manufactured diagnosis by telephone, but we have to be seen to get a script for Amoxicillin? Society has found that allowing patients to make their own decisions about medication does not work, however, and we therefore require a form (prescription) for communication between doctor and pharmacist. 

The belief that other forms add nothing to the care of patients is short-sighted. Just like the script for medication, the referral form brings care through the primary medical practice, and medical professionals make decisions about the need for other professionals. Not all health plans (contracts) require this, but some do. No all loan agreements (contracts) require arbitration, but some do. When we make a contract, we accept the terms of that contract. 

The health plans (contracts) that require primary care as a gatekeeper look to that doctor to lead the health care team. They do so based on their training and education. They evaluate, examine, and diagnose. I mean actual diagnoses, not just what some other physician might "make up" as a response to a phone call. Just like the script is needed to obtain the medicine, the disability form is needed for the patient to be paid. Without that form, there is no cash and as a result perhaps no food, shelter, etc. Can anyone argue that patient care is not affected by the comfort and piece of mind that come from having a place to live and food to eat?

It has become rare for people to pay for their own medical care in America today. It occurs, but most have adopted the third-party payer (insurance, public or private) as their model. These third-parties (by contract) require documentation in order to provide payment. The documentation of diagnosis is part of that model. So is the primary care physician. Their role in that model includes completing documentation of their participation, which allows health insurers to participate in determinations of appropriateness of care and the reimbursement therefore. Should they be involved? That choice was made by the consumer who purchased that health insurance contract, with its benefits and its burdens. 

Is all the paperwork necessary? Perhaps not. Perhaps we should be able to trust patients to only buy and properly use medications that are efficacious. Perhaps we should abandon the pharmacy model. Why should a patient have to see a physician before obtaining medication? Is it because society has determined that this physician and their training is critical to protecting health in our society? Is there logic to such societal trust in people who find greater harm in the inconvenience of completing forms than they find in making up diagnoses? Physicians who forego examining their patients and make up opinions so that the patient can see a specialist? Would a doctor make up a diagnosis for me on one of those pesky prescription forms so that I can get what I want without the burden of coming to his office for an appointment? If I phone in, could I get a made up diagnosis and some Oxycontin?

I am sure I do not know all the tribulations of providing medical care in today's world. I know this though, there may well be valid reasons for requiring paperwork. The processes of obtaining care through someone else, based on a contract made with them, can be subject to a variety of requirements of that contract. Patient well being may very well be affected by those documents and forms, and completing them completely and promptly may very well benefit the patient. I also know that making up diagnoses for a form, to help a patient that has not been seen, is wrong. In fact, simply making up a diagnosis is wrong, for any reason. 

We need to strive to streamline. The effort in Florida with the DWC-25 is a good illustration of that kind of effort. A single form for use by the treating physician on every visit. A single form upon which all of the relevant information can be clearly stated and effectively communicated. Of course, the efficacy of this form is just as susceptible to made up diagnoses as any reporting mechanism would be. 

Perhaps if we lived in a world where honesty in fact was more prevalent, then the volume of bureaucracy and forms designed to document and verify could decrease? Maybe we should be able to expect such honesty in fact from the professionals in our society, be they doctors, lawyers, architects, accountants or otherwise? There is no form that will be effective when professionals intentionally provide false or made up information. 




Wednesday, June 4, 2014

Had I known the "Paul Harvey"

In March, I posted here about the ongoing scandal in California over the way a hospital owned by Mr. Drobot incentivized doctors to make referrals. That blog also included details about a Florida hospital settling a whistleblower complaint that alleged bonus and other payments to doctors who performed large volumes of surgery at that hospital.

I have written about a variety of fraud situations recently in
"Criminal Coffee." The title situation, and others mentioned in that post support that there are government agencies, including state and district attorneys that are making progress in finding and prosecuting workers' compensation fraud. Some claim that through fraud "tens of billions of dollars in false claims and unpaid premiums are stolen every year."

With a large and incredibly funded federal government, it is astounding when schemes such as these come to light in the news. I hear people ask how such schemes can go on as long as they do, and reach the volume of money that they do. 

Certainly there is a downside to committing fraud. The news is full of stories where people are ordered to pay the money back in restitution and others in which people are put in jail. Is the deterrent enough? We see some emergence of the civil lawsuit as another deterrent. Qui Tam, or "False Claims Act" cases are seen in the Medicare reimbursement setting. We are also beginning to see civil lawsuits on a state level. Are these enforcement tools increasing in frequency, or is the news doing a better job of letting us know?

Recently a lawsuit filed by State Compensation Insurance Fund. It was this civil suit that began to unravel the situation in California with Mr. Drobot. The repercussions have been significant. He is no longer the owner of the hospital, has admitted bribing a California official, and his son stands accused of a variety of wrongdoing. 

Now the other shoe may be about to drop, and it may be a bigger shoe (like size 16) than the first. In May, Candice Smith filed a complaint in California against her physician, Pacific Hospital of Long Beach and Michael Drobot. She alleges that she underwent a fusion surgery at the hospital Drobot owned. It is worth noting that aside from her allegations and this specific case, there has been significant criticism of spinal fusion and other surgeries in the news this year.

Ms. Smith had a work-related back injury according to the complaint, and therefore underwent a back fusion; upon complaints of continuing symptoms, she then had a second surgery, a discectomy. Her physician then recommended a third surgery, a second fusion/revision.

Ms. Smith then sought a second opinion, underwent surgery performed by this new second opinion physician, and had the fusion hardware from the original surgery removed. Anyone familiar with back claims will not find anything exceptional in this story so far, as most have experience with at least one fusion attempt that has required multiple surgeries and the removal of some hardware.

Ms. Smith now sues for medical malpractice, alleging that the original implantation of hardware (fusion one) was negligent. Newsworthy, however is the second count of the complaint, which alleges the defendant doctor, hospital and Mr. Drobot "owed a duty to disclose all material facts, risks, instructions and information pertaining to Ms. Smith's surgery, including any information that would be relevant to Ms. Smith's decision to submit to surgery." Essentially, she she alleges that she should have known the "rest of the story" when making her decision about having her body opened and altered and supplemented with this hardware.

The Complaint alleges further that this "informed consent" disclosure of information requires "the disclosure of personal and financial interests of the physician and/or surgeon if those personal and financial interests may affect their personal judgement." This is well beyond a duty to warn of the medical risks that may from surgery, such as infection, further injury, death, etc.

The complaint continues, noting that Mr. Drobot plead guilty to violating federal law in paying "kickbacks." Ms. Smith says that Mr. Drobot paid kickbacks to "doctors, chiropractors, surgeons and other medical practitioners," including the physician that performed her initial fusion and discectomy. She alleges that it was these payments and kickbacks that led her surgeon to recommend her surgery generally, and to recommend that she travel to the specific facility (which Drobot owned) where it was performed. She notes that according to Drobot's plea agreement in the criminal case "Drobot offered to pay kickbacks up to $15,000 per lumber fusion surgery performed" at his hospital.

Sounds pretty unsavory so far. But if a procedure is objectively needed, and the physician can ethically and professionally do the procedure at hospital A or B, and the payment is better at hospital A, is there anything inherently wrong with picking or recommending that facility? Is that the issue, or is it merely a matter of a patient's right to know what may be leading to the facility selection/recommendation. Hold on though, the allegations are not finished.

Ms. Smith also alleges that the hardware that was implanted in her body in that first fusion was inappropriate or even defective. She says that as part of the kickback scheme doctors used fusion hardware "that came exclusively from a third party medical hardware company also owned by Drobot." Ms. Smith alleges that Drobot artificially and "fraudulently inflated the price of the medical hardware" through this third party. Again, if the hardware is "all the right stuff" and would be what the ethical and professional doctor would chose regardless of the selected facility and regardless of the hardware supplier, is the hardware selection really an issue? Or, is the issue really just whether the patient has a right to know that there could be some influence that potentially or actually guided the hardware selection/recommendation?

In short, Ms. Smith alleges that she went to Pacific hospital and underwent the fusion and implantation of particular hardware because her doctor recommended it. She now says that she did not get the Paul Harvey ("the rest of the story") and now believes that the recommendation for the procedure, the particular hospital, and the hardware used were all influenced or possibly influenced by fraud, kickbacks and money paid by Drobot or his agents to physicians or other providers. She is saying that if there was a potential for someone to perceive a financial gain from the "how," "where" and "with what" her fusion was performed, then the "informed consent" disclosure should have included telling her about the financial relationships so that she could make her own decision.

She asserts that the failure to provide her with the "Paul Harvey" is a breach of the concept of informed consent. That is that this information should have been provided to her in making her decision. Most would agree it is important that a doctor tell you the potential downside to a surgery, such as "there is a risk of death?" Will a jury agree that it is as important to know that the recommendations your doctor is making may be or could be perceived as influenced by a $15,000 "bonus," "rebate," or kickback? If the financial situation played no role in the doctor's decisions, should the financial situation nonetheless be disclosed to the patient?

If a doctor is taken on a fishing trip to the Bahamas by a pharmaceutical representative or paid to give a lecture on the benefits of a new treatment or test, should these financial relationships be disclosed to that physician's patients for whom she or he prescribes that medication or procedure or test?


There are those in the workers' compensation blogging world who believe the Ms. Smith's lawsuit is just the first that Mr. Drobot will defend. One is left to wonder whether similar allegations will be made in other situations regarding physician reimbursement issues, prescription habits, or otherwise. Will her definition of "informed" consent spread and lead to more sunshine in the world of medical care?

Will the specter of lawsuits and financial loss affect the volume of surgeries performed in the United States and the delivery of other medical care in years to come?

Monday, June 2, 2014

Curiouser and Curiouser

Santa Clara County and Orange County in California have filed a lawsuit against Purdue Pharma, The Purdue Frederick company, Teva Pharmaceuticals, Cephalon, Johnson and Johnson, Janssen Pharmaceuticals, Endo Health Solutions, Activis PLC, and "does 1 through 100, inclusive." The 100 (app.) page lawsuit is an interesting read. The "does" reference suggests that more defendants may be added in time.

According to one characterization, these companies are accused of "opening floodgates to epidemic of addiction."  

The lawsuit contends that the by the 1990s Defendants had the "ability to cheaply produce massive quantities of opium-like painkillers (“opioids”), but the market was small." These "opiods" are described as "well-known brand-name drugs like Oxycontin and Percocet," which the lawsuit likens to heroin in that they "work by binding to receptors on the spinal cord and in the brain, dampening the perception of pain."

Because they allegedly had production capacity that exceeded their market, the defendants allegedly engaged in a "common, sophisticated, and deeply deceptive marketing campaign that continues to the present." The purpose of this campaign alleged in the lawsuit was to "reverse the popular and medical understanding of opiods."  

The suit alleges that the manufacturers knew "that opioids were too addictive and too debilitating for long-term use for chronic non-cancer pain," and yet they "spent millions of dollars funding, assisting and encouraging doctors and front groups that would pioneer a new and far broader market for their potent and highly addictive drugs - the chronic pain market." Through this campaign, the suit alleges that the manufacturers "persuaded doctors and patients that what they had long known - that opiods are addictive drugs and unsafe in most circumstances for long-term use - was untrue, and quite the opposite, that the compassionate treatment of pain required opiods." 


The suit characterizes this marketing campaign as "wildly successful," and describes the United States as "awash in opiods" as a result. The suit alleges that 254 million opiod prescriptions were filled in 2010, "enough to medicate every adult in America around the clock for a month." The suit alleges that Opiods are now "the most prescribed class of drugs" in the country. 

Despite having 4.6% of the world's population, the United States consumes "80% of the opiods supplied around the world and 99% of the global hydrocodone supply." The plaintiff counties allege that this has generated $8 billion in revenue for pharmaceutical companies in 2010.

The lawsuit describes various detrimental effects of this success. Chief among them is the death toll. It alleges that "prescription opiod use contributed to 16,651 overdose deaths in 2010" across the United States. Orange County contends that their own death toll was about 180. 

The plaintiff counties contend that the defendant's actions violated multiple California state laws, and they seek "restitution, civil penalties and attorneys' fees costs and expenses" as well as injunctive relief to "cease their unlawful promotion of opiods, to correct their misrepresentations, and to abate the public nuisance they have created."

There will be debate about whether a company can be sued for their sale and distribution of a produce that is legal under Federal law. Some already question this. Some point specifically at recent litigation in which the makers of Zohydro successfully challenged state attempts to restrict their product's distribution. The argument for such protection from state intervention is called "preemption," where the existence of Federal regulation pursuant to some constitutionally enumerated power preempts the state from otherwise regulating. 

The California case will likely be watched with interest. If the complaint survives defense motions to dismiss and for summary judgement (that is the case is not dismissed by a judge before it can get to a jury), there is some possibility other counties or even municipalities may file similar suits in other state courts. There are 3,141 counties in the country, each filing a similar lawsuit would equate to a significant volume of litigation. 

Is the kind of behavior alleged in the current lawsuit something that a jury or juries would find inappropriate? If the California county's lawsuits are successful, might individuals or individual's estates begin to file lawsuits for damages from use of opiods? Is there any potential that the country could see litigation with similarities to the tobacco litigation that has been seen in recent years?

A jury in 2010 awarded a widow $75 million from four tobacco companies. In August 2013, another verdict awarded $37 million. These findings despite the fact that the subject of the lawsuits, tobacco, was perfectly legal under Federal law. In some of those lawsuits, the plaintiffs allege that tobacco companies engaged in marketing campaigns that were deceptive. 

The Supreme Court has declined the tobacco company's argument that they are entitled to protection from "preemption." Tobacco has faced many state law claims. There are currently some 8,000 estimated tobacco lawsuits pending in Florida alone. 

When the states first sued big tobacco, there were those who said the suits would never work. The tobacco companies settled with the states for a payout that will be at least $200 billion. Will the first two counties in the country prevail in their claims for damages related to opiods? Will their lawsuit lead to a cascade of claims as was seen in tobacco litigation? 


How many jury verdicts would it take to erase an $8 billion annual revenue from opiod sales?  Well, at 16,651 deaths alleged per year, it would only take about $481,000 in damages in each death case to erase all of that revenue (not profit, revenue). Of course this presumes that only the death cases would be pursued, but it is possible that there would be others in the marketplace who would claim damage from their use and or addiction despite not having suffered death. 


If a jury agrees that these companies opened "floodgates to epidemic of addiction," will the California litigation likewise open the floodgates of litigation against the companies that allegedly engaged in the marketing campaign to change perceptions of opioids? Will the physicians who were persuaded by that alleged marketing campaign be swept up in the flood?

Currently we hear attorney ads on the television seeking response by those injured by various medical devices, services, and medications. Will opiods be the next "big thing" in litigation? Time will tell, as the attorneys watch the developments in California. As Lewis Carroll wrote of Alice's trip down the rabbit hole, things just get "curiouser and curiouser."