By David Price, Director of Government Affairs, Preferred Medical
Over these past few months, we have seen several states introduce presumptions to make it easier for certain classes of employees to establish a workers’ compensation claim after testing positive for COVID-19. At the same time, we’re also seeing more states “re-open” non-essential businesses, which means that more people are going back to work and, as a result, more employees are at risk of a workplace COVID-19 exposure.
Odds are good that we will see more – not fewer – COVID-19 claims filed in the coming months. While many of those claims will be denied (especially in the absence of a presumption of compensability), the simple truth is that the number of compensable COVID-19 claims will rise.
With the emergence of compensable COVID-19 claims comes the duty for employers to provide medical benefits to those employees with compensable claims.
This presents a two-sided challenge. On the one side, claims administrators are working to implement the ever-changing protocols surrounding COVID-19 claims while ensuring that appropriate treatment is approved for compensable claims. On the other side, providers are sprinting to keep pace with some of those same protocols so as to get treatment approved while, at the same time, dealing with a backlog of patients and trying to protect their office staff, other patients, and themselves from exposure.
Now, more than ever, the workers’ compensation industry needs clear pathways to approval for its providers.
Provisional Standards of Care
While most of the articles and discussions covering COVID-19 in workers’ compensation address the issue of compensability (and, to be certain, that’s going to continue to be the case into the foreseeable future), as time progresses, we’re going to see more questions raised with respect to issues like medical necessity and reasonableness of treatment for COVID-19.
Part of the reason for that is that we now have guidance (although “provisional guidance” may be a better term) with respect to which treatments should be provided to patients and approved by payers in COVID-19 claims.
For example, both the Official Disability Guidelines (ODG) published by MCG Health and the American College of Occupational and Environmental Medicine (ACOEM) guidelines published by Reed Group contain guidelines for the treatment of COVID-19. Additionally, we’re now seeing the development of COVID-19 formularies, as well as the listing of COVID-19 indications for certain medications on broader formularies like the ODG formulary.
This can introduce its own challenges. When a condition isn’t mentioned in a state’s adopted guidelines, it’s easier for a healthcare provider to justify (and to obtain approval for) treatment for that condition, as there is no risk of the treatment conflicting with recommendations in the guidelines. On the other hand, when a state’s adopted guidelines do address the condition that the provider is treating, that provider’s compliance with the guidelines can be a determinative factor on some very important issues – like whether or not the provider has to request prior authorization, or whether or not the treatment is presumed to be medically necessary.
The Ever-Moving Target
While some provisional guidelines for treatment of COVID-19 patients are starting to appear, keeping providers apprised of those guidelines – and keeping the guidelines themselves up-to-date – can prove to be challenging.
The clinical evidence and the regulatory changes with respect to COVID-19 are coming out at such a pace that even the most attentive providers will struggle to keep up. Most states have no adopted treatment guideline that addresses COVID-19; however, even in those instances where a state’s adopted guidelines do address COVID-19, either the guidelines themselves are at risk of being out-of-date, or they must be updated so frequently that recommendations can change within a matter of days.
- As of the date of writing this article (July 1, 2020), the ODG formulary currently lists hydroxychloroquine sulfate as a “Y” drug for COVID-19, which makes the drug easier to obtain without prior authorization in states that have adopted the ODG formulary.
In addition, the most recent update to the ODG COVID-19 guideline was on June 5 — ten days before the FDA revoked its Emergency Use Authorization for use of hydroxychloroquine sulfate as a treatment for COVID-19 patients. (It’s worth noting that the ODG COVID-19 guideline does not list hydroxychloroquine as “recommended” or as “not recommended,” but, rather, notes that it is under investigation in clinical trials.)
- In June, the ACOEM COVID-19 guideline was updated three times within less than a full week (June 12, June 15, and June 17). During the course of those updates, the guideline saw some major changes including:
- addition of a new recommendation (remdesivir);
- upgrade of a “not recommended” status for one medication group (glucocorticosteroids) to “recommended”; and
- downgrade of a “recommended” status for two drugs (hydroxychloroquine sulfate and chloroquine phosphate) to “not recommended.”
To be clear, this is not a criticism of state agencies or of the private entities that are developing these treatment guidelines. New evidence and new regulatory guidance is coming forth so frequently that the only real options are:
- 1) to constantly update recommendations in the guidelines (which, for many state agencies, is simply not realistic, especially as agencies have scaled down operations in response to the pandemic);
- 2) to update recommendations only occasionally, at the risk of those recommendations becoming outdated;
- 3) to offer guidelines that are so insubstantial that they do not include any clear recommendations one way or the other with respect to treatments; or
- 4) to offer no guidelines with respect to COVID-19.
This can create real challenges for providers and claims administrators who are trying to determine what their state’s standard of care is for treatment of workers’ compensation patients with COVID-19.
In next week’s article, we’ll discuss some of the ways to counter those challenges.
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.