By David Price, Director of Government Affairs, Preferred Medical
In last week’s article, I laid out some of the obstacles that providers and claims administrators will face as they attempt to establish agreed-upon expectations as to what treatment would constitute medically necessary treatment for a patient in a compensable COVID-19 claim.
At present, most states have no formally adopted treatment guideline with respect to COVID-19 claims. This is not surprising given that (1) not all states have worker’s compensation treatment guidelines, and (2) much of the information that we currently have about treatment of COVID-19 comes from relatively recent studies and clinical trials.
Even so, in any jurisdiction that allows workers’ compensation payers to review and to deny reimbursement for treatment that is not medically necessary (or not “reasonable and necessary” or similar language as may be used by the laws of the jurisdiction) there is the risk that treatment can be provided to the injured worker only for the provider to later discover that the workers’ compensation payer has denied responsibility for payment.
The reverse side of that risk is that, where there is no established standard of care, payers may find themselves being required to reimburse for treatments that are not recommended by current medical evidence and that may even be detrimental to the patient’s health.
To some extent, the path to resolving this problem in those jurisdictions with no treatment guidelines is the same as it is in those jurisdictions that do have treatment guidelines – including those with guidelines that have recently added provisional recommendations for treatment in COVID-19 claims.
In the absence of a clear, formally adopted standard of care, providers will need to know:
- which treatments will be subject to prior authorization;
- how to obtain prior authorization successfully; and
- how to avoid retrospective utilization review (if requesting prior authorization was not feasible), or alternatively, how to document medical necessity in such a way as to have the treatment survive retrospective review without the necessity of subsequent appeals.
Setting the Expectations
As mentioned in last week’s article, both the Official Disability Guidelines (ODG) by MCG Health and the American College of Occupational and Environmental Medicine (ACOEM) guidelines by Reed Group have recently published provisional recommendations with respect to treatment in COVID-19 claims.
That’s a significant development when you consider that both ODG and ACOEM are often referenced when trying to determine whether treatment in a workers’ compensation claim is medically necessary or appropriate.
It’s even more significant when you consider that agencies in some jurisdictions have formally adopted the recommendations of either ODG or ACOEM guidelines – meaning that treatment that complies with those guidelines might be presumed medically necessary and that, depending on the rules of the jurisdiction, treatment that does not comply with those guidelines may be subject to review and denial of reimbursement.
To some extent, having a formal guideline in place helps to get past the problem of establishing common expectations between payers and claims administrators with respect to treatment. By default, the recommendations in the guideline are the expectation.
The downside is that keeping that guideline up-to-date with the latest clinical evidence – and keeping providers and claims administrators apprised of each update – can be a challenge.
Additionally, the guidelines may not adequately discuss all stages of care. This is especially true for the post-hospitalization stage or in those claims that do not involve hospitalization.
Having a formally adopted standard of care doesn’t fully solve the problem of ensuring common expectations – especially when that standard is for a novel disease and contains only provisional recommendations.
Efforts by Regulators
Some states have worked toward making it easier for providers to avoid regulatory hurdles when providing treatment to COVID-19 patients (and to other patients) during the pandemic. For example, Kentucky, which was scheduled to implement treatment guidelines on September 1st of this year, has delayed the implementation of those treatment guidelines (PDF) until January 1, 2021.
Similarly, California’s Department of Labor and Industry, Division of Workers’ Compensation (DWC) has announced that, while it will eventually adopt the ACOEM COVID-19 treatment guideline as a part of the DWC’s Medical Treatment Utilization Schedule (MTUS), the DWC is delaying that adoption until “the frequency of updates slows to a point where the formal adoption process can be completed.” (In the meantime, the DWC has noted that its regulatory “Medical Evidence Search Sequence,” which includes current ACOEM recommendations, would apply to treatment in COVID-19 claims.)
While helpful, these agency actions only provide a small part of the solution.
By design, they protect providers from the downside of having to contend with a new, exclusive, formal standard of care for treatment of COVID-19 patients; however, without an agreed-upon standard of care, providers often run the risk of having the necessity or reasonableness of their treatment challenged.
We are already seeing certain treatments listed as “not recommended” in provisional treatment guidelines. As we learn more about which treatments do not benefit COVID-19 patients, scrutiny of providers’ treatment choices is likely to become more commonplace.
This is where communication between providers and claims administrators becomes essential. While it may feel like it has been an eternity since we first started hearing about COVID-19, it’s still fairly new – and it’s just as new to payers as it is to providers.
Just as health care providers are still learning which treatments may provide a benefit to a patient – and which treatments should be limited to certain cases based on severity — payers are still learning which treatments have been shown to be ineffective (and so may merit some additional review before approval).
As is often the case when the workers’ compensation industry is faced with a new clinical challenge, the solution is going to involve mutual education – payers educating providers about what those providers will need to do in order to ensure approval), and providers educating payers about changes to the patient’s care that may deviate from expectations (such as when the recommendations in the applicable guidelines are no longer current, or when the needs of an individual patient require deviation from the guidelines).
To some extent, the best tools available to combat confusion of expectations with respect to COVID-19 claims are the tools that we already have available. Payers have a host of channels through which to communicate expectations to providers, whether it be by having nurse case managers coordinate care, or by having pharmacy benefit managers work with providers to implement any restrictions with respect to the provision of outpatient medications for conditions related to the COVID-19 diagnosis. As always, any communication with health care providers will need to comply with applicable restrictions in that jurisdiction.
This is a challenging time for our world, our nation, and our industry. It’s going to require us to be vigilant enough to stay apprised of new information as it develops, to be flexible enough to be able to adapt in the face of that information, and to be willing to educate each other as we work toward the mutual goal of providing the best available care for the employees that we serve.
About David Price
David Price is Director of Government Affairs for Preferred Medical. David oversees the compliance program and client education initiatives, leveraging his extensive legal and regulatory experience. He plays a crucial role in enhancing, building, and maintaining the company’s relationships with legislatures and regulatory bodies as changes are proposed to state workers’ compensation systems. David has built a strong reputation for his expert analysis on workers’ compensation regulations and their implications for stakeholders. Prior to joining Preferred Medical, David served as Compliance Counsel for a nationwide workers’ compensation medical cost management company. Additionally, David is an established speaker and author on topics related to the evolving regulatory and policy landscape of workers’ compensation. He holds a Juris Doctorate from Georgia State University and a Bachelor of Arts from Berry College in Government and International Studies.
About Preferred Medical
Preferred Medical is a high touch workers’ compensation pharmacy and ancillary services provider with a primary focus on doing the right thing. Our integrated approach positively impacts clinical and financial outcomes via a 360-degree view of the injured worker. Our commitment to clients is to live by our principles of being Responsive, Focused and Tailored. Find out how we make it easy at www.ThePreferredMedical.com.