The following guest post by local claimant attorney Gregory J. Hubachek and D. Kirkhoff Brainard is the second in a two part series addressing solutions to Louisiana’s opioid epidemic. It is one of several policy papers addressing key issues for discussion in the 2016 Legislative Session.
Currently, Representative Chris Broadwater’s HB 725 is awaiting a hearing in the House Labor and Industrial Relations Committee. The bill would create a mandatory closed prescription drug formulary for workers’ comp, specifically utilizing the Work Loss Data Institute’s “Official Disability Guidelines.” The bill was not recommended by the Governor’s Workers’ Compensation Advisory Council (WCAC) in its last meeting.
Below, Hubachek and Brainard discuss alternatives to a closed formulary for curbing opioid abuse in our state, placing particular emphasis on prescription drug monitoring databases and alternative therapies.
In Part 1 of this series, we listed some of the key statistics that place Louisiana among the states most adversely affected by the national “opioid epidemic.”
In this piece, we will dig deeper into the realities of “evidence-based medicine” solutions. We will also outline a framework for how the Louisiana workers’ compensation community can come together to create a cost-effective strategy that safeguards the integrity of the medical profession and the rights of injured workers to get the treatment they need.
The President’s 2017 budget proposal includes nearly $1 billion earmarked to help the states respond to the opioid crisis. “States will receive funds based on the severity of the epidemic and on the strength of their strategy to respond to it,” the White House says.1
Governor Edwards will certainly exercise his leadership to tackle the state’s opioid crisis. In his direct response to Louisiana’s historic budget deficits, the new governor has already demonstrated a willingness to tackle the state’s most difficult issues head on.
Given the severity of Louisiana’s opioid problem, extra financial support from the federal government would be appropriate. Beyond that, however, this is clearly an opportunity to raise Louisiana’s profile as a state where bipartisan leadership comes together to solve the most difficult problems facing society.
Louisiana’s statistics are indeed grim. And a new report to be published soon by the Workers’ Compensation Research Institute (WCRI) reportedly bears more bad news, finding that workers prescribed opioids in Louisiana tend to become longer-term users of prescription narcotics at a much higher rate than in any other state.
The study found nearly one in six Louisiana workers who had been prescribed opioids became longer-term users of prescription narcotics. This is nearly double the rate of the closest states on the list and almost three times the median rate among the 25 states included in the study.2
These findings will certainly prompt an outcry from certain interests for Louisiana to mandate closed treatment guidelines.
While no one with any credibility would deny the devastating effects of Louisiana’s addiction to narcotic painkillers, we maintain that Governor Edwards and Louisiana physicians should reject a closed formulary as the solution in our state.
Rather, we see this as a unique opportunity for Louisiana physicians to take a leadership role in working with the government to develop a progressive solution to the state’s public health crisis.
The problem with evidence-based medicine
On March 15th, the federal government published the CDC’s controversial opioid treatment guidelines. Although the guidelines are not legally binding, they essentially set a new de facto national standard for opioid prescribing.
Cost containment vs. patient care
Supporters of treatment guidelines such as the CDC’s recommendations tout them as evidence-based medicine. The fundamental assumption underlying EBM is that physicians with access to research and statistics from scientifically valid clinical studies will provide better and more cost-effective care for their patients.
This makes sense, in theory. But, in practice, treatment guidelines are often used to severely limit the treatment options available to physicians and their patients.
The ODG and the ACOEM are the two major closed formularies adopted by states that choose not to write their own guidelines. Both of these treatment guidelines are produced by private organizations backed by the insurance industry.3 Both guidelines, as one would expect, place a premium on cost containment.
But at what cost to those who are legitimately suffering?4
“These guidelines do not adequately address extended, long-term complications, nor do they permit alternative treatment,” writes Roselyn Bonanti. “The limiting nature of EBM guidelines could potentially result in the denial of treatment for thousands of workers who may never know whether a given treatment may have helped them or not.”5
In a Huffington Post opinion explaining why he felt compelled to take a public stand against the CDC guidelines, primary care physician Stefan Kertesz wrote:
“Patients are not dough, waiting to be stamped into conformity with whatever the cookie cutter requires. The guideline’s top line recommendations do not recognize the central importance of personalized decisions. It opens the door to harsh and restrictive misinterpretation, even if the authors themselves had no such intention.”6
As many physicians have pointed out in response to the CDC guidelines, the fact that they are not legally enforceable does not mean they will not be used to intimidate doctors into following them.
In fact, this is common practice with closed formularies. Even in states where adherence to the ODG is not legally mandated, writes Iowa attorney Matthew D. Dake, “guidelines are still used informally by nurse case managers, adjusters, or other company officials, in influencing the care provided by the physician.”7
While acknowledging that no causal relationship has been established between mandatory adoption of a closed formulary and the prevalence of long-term opioid use among workers’ compensation claimants, the WCRI studies do point out that two states – Texas and Oklahoma – that have mandated adherence to the ODG are showing a decline in longer-term opioid use.
However, the same study indicates increasing registration and use of prescription drug monitoring programs as the biggest common factor among states showing a consistent year-by-year decline in long-term opioid use among injured workers.
In Part 1 we discussed the questionable science underlying the CDC opioid guidelines. Even the biggest proponents of EBM formularies have acknowledged the lack of hard scientific data to validate their paradigm. “An EBM founder also conceded that there was ‘no convincing direct evidence’ that EBM’s fundamental assumptions were correct,” Bonanti writes. “He stated additional work needed to be done if EBM was to continue to evolve.”8
In a profit-driven industry, it’s quite natural for insurers to want to minimize costs. And it goes without saying that some claimants, attorneys and physicians will try to game the system.
But workers’ compensation insurers have shown steady profitability over the last 20 years.9 While some of the solutions we propose below may cost insurers more in the short term, the nature of the current crisis demands that insurers work with physicians and government to put in place measures that will protect injured workers and their families from the insidious effects of opioid addiction.
Insurers need to expand coverage of:
- Urine drug screens. Lowering the cost and increasing the utilization of urine drug screens is key to stopping the opioid madness.
- Psychological care for workers receiving longer-term opioid medications.
- Detoxification treatment, including in-patient detoxification when needed.
- Alternatives to narcotic painkillers. Alternative therapies that have been found effective in pain reduction and return to work include:
- Pain pumps
- Non-narcotic topical pain creams
- Pain management referral
- Yoga, acupuncture, extended chiropractic care, herbal remedies and movement-based physical therapy
Physicians need to lead
The practice of prescribing narcotics for non-surgical and non-terminal cases is a relatively recent phenomenon. In the last 25 years the number of prescriptions written for hydrocodone and oxycodone has more than quadrupled, from 40 million in 199110 to nearly 180 million in 2013.11
Many experts agree that aggressive marketing of new narcotic painkillers like OxyContin (introduced in 1995) to family doctors and general practitioners played a huge role in the accelerated growth curve of opioid prescribing. Most of these physicians are not trained in either pain management or in treating addictions.
Studies suggest that the tidal wave of narcotics prescriptions in American may have reached its high water mark in 2011. As non-specialist doctors have become more aware of the heightened potential for abuse of these drugs, it seems they are dispensing them somewhat more judiciously.12
Mandate physician education for doctors who may prescribe opioids.
Given the scope of the problem, however, physician education must be a top priority in Louisiana’s response to the opioid epidemic. In addition to general education on the risks and benefits of narcotic medicines, physicians who are licensed to prescribe opioids need to be provided with objective criterion for identifying and treating “high-risk patients.”
Increase the range of treatment options available to doctors.
In addition to more education, physicians must utilize available treatment options for these patients, including:
- More frequent urine drug screens.
- Longer period(s) of detoxification treatment.
- Greater scrutiny of pharmaceutical dispensing.
- Extended psychological counseling and other supportive modalities.
Health care organizations across the spectrum are united in recommending psychological care for patients prescribed opioids. Yet the upcoming WCRI study reportedly shows that only around five or six percent of long-term opioid users received any psychological care whatsoever – other than counseling they may have received in the course of a visit to their prescribing physician.
Mandatory registration and use of prescription monitoring programs.
It’s clear that a handful of physicians are responsible for a great deal of the over-prescribing that has resulted in the current opioid crisis. Alex Swedlow, president of the California Workers Compensation Institute, said in 2014 that three percent of doctors were responsible for generating nearly two-thirds of narcotics prescriptions filled in California.13
A recent study by the U.S. Department of Health and Human Services found that 69 percent of people who had used pain relievers non-medically in the previous year got them from a friend or relative. And that about 82 percent of those relatives or friends obtained the narcotics from a single doctor.14
Mandating registration and requiring physicians to check the PMP15 database every time they write an opioid prescription would send a strong message to the handful of Louisiana physicians who write most of the narcotic prescriptions.
Louisiana should also call on neighboring states to share prescription data. Increased sharing of data between neighboring states has proven effective in reining in doctor shopping by addicts.
Lower workers’ compensation costs by bringing the cost of prescription drugs in Louisiana in line with national norms.
Two proposals currently under consideration by state officials would accomplish this without compromising the integrity of the doctor-patient relationship:
- Lower workers’ compensation reimbursement rates. Louisiana currently has the highest prescription drug reimbursement rate in the nation. While other states reimburse providers at a percentage of the average wholesale price, Louisiana law sets reimbursement at AWP plus 20 percent. Even lowering this rate to 100 percent of the AWP would significantly decrease the overall cost of prescription medication in the state.
- Mandate the use of generic equivalents when available, with exceptions allowed for brand name drugs when there is clear benefit to the patient. Blue Cross Blue Shield of Michigan launched a statewide public relations campaign in 2002 to encourage individuals and companies to switch from brand name medications to generic equivalents. The state’s biggest insurer (and insurer of last resort) reported a savings of $130 million over the first three years of the campaign.16
1 The White House, Office of the Press Secretary, “FACT SHEET: President Obama Proposes $1.1 Billion in New Funding to Address the Prescription Opioid Abuse and Heroin Use Epidemic,” February 2, 2016.)
2 For the last few years, WCRI has been studying the effects of the opioid crisis on worker’s compensation systems across 25 states. The upcoming 3rd Edition of the study adds to the data gathered in previous years.
3 “In fact, many of the faces behind the EBM movement are high-ranking insurance company officials, who have vested financial interests in settling claims as inexpensively as possible,” writes Roselyn Bonanti of the Workers’ Injury Law & Advocacy Group. (“Evidence-Based Medicine: Insurance Cost-Saving Scheme that Denies Treatment to Injured Workers,” Workers’ First Watch, Workers’ Law & Advocacy Group, Spring 2012.)
4 A recent New York Times feature follows a family practitioner in small-town Nebraska as he attempts to reconcile the effects the CDC guidelines will have on his Medicare patients who suffer from debilitating daily pain. (Jan Hoffman, “Patients in Pain, and a Doctor Who Must Limit Drugs,” March 16, 2016.)
5 Bonanti, Spring 2012.
6 Stefan Kertesz, “Opioids, Pain and the CDC’s Guideline: Needs Improvement,” Huffington Post, January 19, 2016.
7 Matthew D. Dake, “Humpty Dumpty and the World of Workers’ Compensation: An Evidence-Based Approach,” Workers’ First Watch, Workers’ Law & Advocacy Group, Spring 2012.
8 Bonanti, Spring 2012.
9 Thomas M. Domer, “Workers’ Comp Profitability Soars in 2013,” Workers’ First Watch, “Workers’ Law & Advocacy Group, Summer 2015.
10 Nora D. Volkow, Statement on “Scientific Research on Prescription Drug Abuse” before the Senate Judiciary Committee, HHS.gov, March 12, 2008.
11 Volkow, “America’s Addiction to Opioids: Heroin and Prescription Drug Abuse,” National Institute on Drug Abuse website, May 14, 2014.
12 A study in the New England Journal of Medicine showed the number of opioid prescriptions per year rose steadily from 2001-2011, and has been slowly declining since. Richard C. Dart, et al, “Trends in Opioid Analgesic Abuse and Mortality in the United States,” New England Journal of Medicine, January 15, 2015.
13 “WCRI Study: Not Much Change in Longer-Term Opioid Use Trends,” workcompcentral®, May 9, 2014.
14 H. Westley Clark, “America’s Addiction to Opioids: Heroin and Prescription Drug Abuse,” HHS.gov, March 26, 2014.
15 The common abbreviation for prescription drug monitoring programs is PDMP. Louisiana’s official program is the Prescription Monitoring Program, or PMP.
16 “Blue Cross Blue Shield of Michigan Generics Program Recognized as Model for Keeping Prescription Drugs Safe and Affordable,” PR Newswire, January 31, 2005.
Gregory Hubachek, of Workers’ Compensation LLC, a law firm representing injured workers, has practiced in the field of workers’ compensation for over two decades. Since 2009, Hubachek has served on the governor’s Workers’ Compensation Advisory Council (WCAC) as an “at-large” appointment. In his role on the WCAC, Hubachek has sought to preserve fairness in the Louisiana Workers’ Compensation Act. As a result of his experience in the field of workers’ compensation, Hubachek has been enlisted to provide educational presentations for various organizations, for example, the Office of Workers’ Compensation Administration, the Louisiana Association of Business & Industry and the Workers’ Injury Law & Advocacy Group. Hubachek is a graduate of the University of California, Berkeley and the University of California, Hastings College of Law.
D. Kirkhoff Brainard is a freelance writer based in Atlanta, Georgia. With 20 years’ experience working as a journalist, copywriter and content developer, D.K. has written for some of America’s top companies including The Coca-Cola Company and General Motors Corporation. D.K. graduated magna cum laude with a double major in English and French from Hillsdale College. He earned the diplôme du Magistère from the University of Paris-Sorbonne IV before completing his master’s degree in French at the University of Cincinnati.
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