Young: Forming the Formulary
Friday, July 28, 2017 | 1202 | 0 | min read
What will the California workers’ comp drug formulary look like?
We didn’t get an answer by July 1, 2017, the date mandated by AB 1124, passed in 2015. But the DWC is making strides in putting the formulary in place.
Stakeholders with an interest in this will probably want to pay close attention, as the 15-day period for public comment ends at 5 p.m. on Aug. 2. Later in this post I will note some of the proposed changes.
Many physicians and applicant attorneys are concerned about the one-size-fits-all approach to medical management inherent in a formulary.
But formulary proponents have argued that a formulary may increase quality of care to the extent that questionable prescriptions are used. They have also argued that a formulary would reduce the number of disputes, and thus reduce “friction costs.”
According to a recent DWC report titled “2017 Independent Medical Review (IMR) Report: Analysis of 2016 Data,” pharmaceuticals constituted 43.5% of disputed treatment requests in 2016. The report claims there were 149,360 such disputes in 2016.
Of course, the DWC can put rules in place from now til the end of time. But that doesn’t mean that doctors will necessarily observe them. Often, workers are caught in the crossfire.
Changing physician and practice behavior is a complicated thing. So designating many pharmaceuticals as non-exempt (the new term, instead of non-preferred) will likely fail to deter some providers from suggesting those drugs. Habit, culture, inattention, economic incentives and dissenting physician viewpoints on scientific/medical efficacy are just some of the factors to contend with as the new formulary rules are rolled out.
Without robust education programs for the provider community to learn the new formulary rules, chaos could ensue.
This may be especially true for a small slice of providers. The California Workers’ Compensation Institute claimed earlier this year that its analysis of data showed that the top 10% of treatment providers were involved in 85% of IMR decisions. Furthermore, they claimed that the top 1% of providers were involved in 44% of IMR decisions.
Another concern with the formulary is time to transition workers off of meds that will likely not be covered. This is addressed in Reg 9792.27.3, “MTUS Drug Formulary Transition.”
This new proposed formulary language will require doctors who are prescribing non-exempt or unlisted drugs to submit a treatment plan. That plan could “set forth a safe weaning, tapering or transitioning of the worker to a drug pursuant to the MTUS” or provide documentation attempting to rebut the MTUS (but, of course, rebuttal is not guaranteed to be successful).
Since we are talking about a 1/1/18 “go-live” date, it seems quite likely that there will be widespread problems where workers are cut off of long-prescribed meds. Many doctors and pharmacies are on auto-pilot when it comes to prescribing/dispensing refills.
While the explicit reference to tapering and weaning may be helpful in some cases, I predict that the regs as written will cause a great deal of dislocation in early 2018. It would have been better to have a bit longer glide path to ensure a soft landing for many of these patients. It would be helpful to have more detail in the regs to ensure that tapering and weaning plans are honored rather than sent through the UR/IMR gauntlet.
This is particularly true as the time between final regs and the end of the year is only a few months, and significant physician education efforts will not be ramped up by the 1/1/18 date.
You can find the DWC web page on the formulary here.
And here is a list of some of the changes proposed by the DWC from the 45-day comment draft to the later 15-day comment draft:
- Moving the effective formulary date to Jan. 1, 2018.
- Changing the “Preferred/Non-Preferred” drug designations to “Exempt/Non-Exempt” to better align with how the designations affect the prospective utilization review status of the drug.
- Revised provisions relating to phased implementation of the formulary.
- Deletion of provisions regarding issues that will be addressed in the utilization review regulations, rather than in the formulary regulations.
- Clarification of applicable dispute resolution procedures.
- Updated drug listings on the MTUS Drug List and formatting changes.
Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, Workers Comp Zone, which is accessible here.