The California Workers’ Compensation Institute (CWCI) released a study documenting opioid use in Workers’ Compensation Medical Set-Asides (WCMSAs). 

Jean S. Goldstein

The study (for which Medval contributed both data and advice concerning MSAs) focused on a specific data set of Centers for Medicare and Medicaid Services-approved WCMSAs from 2015 and 2016 in California against a control group of claims from 2006 through 2009 that involved similar injuries, for cases without a WCMSA.

Alarming findings

The results of the study were alarming, to say the least, with respect to prescription allocations in the approved WCMSAs, specifically showing that:

• 69.4% of percent of CMS-approved WCMSAs contained lifetime allocations for opioids.
• Schedule II drugs (those with the highest abuse potential) accounted for 80.5% of the lifetime opioid payment allocations.
• The opioid strength of medications allocated in approved WCMSAs was 45 times the strength used in the control group.

What to do?

The results of the CWCI study are just one of the many reasons we advocate so strongly for evidence-based MSAs, or MSAs based upon accepted medical and clinical guidelines and often do not include lifetime allocations for opioids. 

What the CWCI study directly implies is the interesting catch-22 position we find many of our clients in: The government has clearly recognized the opioid epidemic and is attempting to combat opioid use. However, when utilizing the government’s voluntary submission review program, approved WCMSAs contain over-allocated prescriptions mainly comprising opioids.

As the CWCI study further suggests, the current methodology for the allocation of medications “implies that chronic conditions, particularly pain, remain static and that drug regimens and dosages will remain fixed for the remainder of the injured worker’s life.” 

Unfortunately, CMS has historically allocated prescription medications as taken, at the time of the CMS review, over an individual’s entire life expectancy whether or not the medications are appropriate or safe, completely disregarding any possible regimen changes. Essentially, the end result: The liable party pays for any and all over-inclusion of medications, including opioids, whether or not they are safe, appropriate or contribute to the current opioid crisis.

For our clients who choose to utilize CMS’ voluntary review program, we suggest that the findings of this study be utilized for the purpose of understanding CMS’ default position on the allocation of opioids for now. However, we believe this study, along with the Medicare secondary payer industry’s diligent advocacy to change the methodology of prescription WCMSA allocations, is a step in the right direction. 

Unfortunately, until the methodology changes, we are unlikely to see the very important and significant changes so desperately needed to protect all injured workers, changes that would allow the industry as a whole to begin to chip away at the opioid crisis we find ourselves in now.

Jean S. Goldstein is a CMS compliance manager and staff attorney for Medval. This blog post is republished here with permission.