Policy Matters Brief July 21, 2021

July 21, 2021 · Public Policy & Regulatory Affairs Team

California workers’ comp drug formulary updated

The California Division of Workers’ Compensation (DWC) issued an order updating their Medical Treatment Utilization Schedule (MTUS) Drug List (drug formulary) effective August 1, 2021. This order adopts changes to the drug list based on the American College of Occupational and Environmental Medicine (ACOEM) Practice Guidelines, including the following:

Addresses new drug recommendations for COVID-19 and status modifications of several drugs from non-exempt to exempt
Deletes drug recommendations for two drugs
Changes diclofenac potassium to non-exempt status due to higher risk profile evidence in ACOEM guidelines and recommendation of the DWC Pharmacy and Therapeutics Committee

Regulations permit DWC to update the formulary on a quarterly or more frequent basis. Additional information on the updated Drug List (version 9), including a tracked changes version, can be viewed on the DWC’s website here.

Colorado bill requires limits for benzodiazepine prescribing, extends limits on opioids

To help to prevent substance use disorders, a Colorado bill would, among other provisions, limit the prescribing of benzodiazepines and extend existing limits on opioid prescribing. Colorado HB 1276 was signed in late June.

A provision within the bill requires that, on or before November 1, 2021, the licensing board for each prescriber shall, by rule:

Limit the supply of a benzodiazepine that may be prescribed to a patient who has not obtained a benzodiazepine prescription from the prescriber within the last 12 months
Not limit the supply of a benzodiazepine prescribed to treat epilepsy, a seizure or seizure disorder, a suspected seizure disorder, spasticity, alcohol withdrawal, or a neurological condition, including a post-traumatic brain injury or catatonia
Allow for appropriate tapering off of benzodiazepines and must not require or encourage abrupt discontinuation or withdrawal

Current law already limits certain prescribers from prescribing more than a seven-day supply of an opioid to a patient who has not obtained an opioid prescription from them within the previous 12 months unless certain conditions apply. This prescribing limitation was set to repeal on September 1, 2021; however, HB 1276 has extended this limitation indefinitely.

It is important to note that this is focused on actual prescribing and amends prescribing practice laws, not workers’ compensation laws. Therefore, issues concerning insurer liability for payment, authorization or reimbursement in connection with these prescribing limits are not directly addressed. The Colorado Division of Workers’ Compensation maintains medical treatment guideline and utilization standard rules, which would apply in the workers’ comp context.

Michigan bills would modify or delay part of new auto no-fault fee schedules

If passed and signed into law, two recently-introduced bills in Michigan would either modify provisions in the state’s 2019 auto reform law governing no-fault medical fee schedules or delay parts of them for a year. These proposed changes arose as fee schedule provisions from the law became effective on July 2, 2021.

Both of the bills address provisions in the 2019 law that govern reimbursement for services that have no Medicare reimbursement value assigned to them. Under the current law, most services are reimbursed based on a percentage markup above their applicable Medicare rate.

However, services with no applicable Medicare rate are reimbursed based on a percentage markdown below the amount payable for the service under the provider’s charge description master in effect on January 1, 2019. Or, if the provider did not have a charge description master on that date, the same percentage markdown below their average amount charged for the service on January 1, 2019. Several stakeholders have brought up concerns with this methodology, which these bills may attempt to address.

HB 4992 would amend provisions governing reimbursement for services without Medicare rates to remove the percentage markdowns and add a geographic region market survey that the Department of Insurance and Financial Services (DIFS) will be required to conduct annually. Reimbursement would then be based on the average amount charged for the service in the relevant geographic region as determined by the three most recently conducted market surveys.

However, if the provider had a charge description master in effect on January 1, 2019, they would not be eligible for reimbursement for more than the amount payable under it. This bill would also remove a requirement for a neurological rehabilitation clinic to be accredited to be eligible for reimbursement. HB 4992 was introduced June 10, 2021 by the majority vice chair of the House Insurance Committee and is in that committee as of this blog being published in July 2021.

HB 5125 would delay applying the percentage of 2019 charge provisions in the law for those services without a Medicare rate until July 2, 2022. Until then, charges for those services would be limited to a “reasonable amount” that must not exceed the amount the provider customarily charges for like treatment in cases that do not involve insurance. This bill would also delay until July 2, 2022 existing fee schedule provisions for attendant care rendered in the injured person's home by an individual who is related to the injured person, an individual who is domiciled in the household of the injured person, or an individual with whom the injured person had a business or social relationship before the injury.

HB 5125 was introduced June 24, 2021 and is in the House Insurance Committee for consideration.

Montana workers’ comp medical treatment guidelines and drug formulary updated

The Montana Department of Labor & Industry, Employment Relations Division adopted updates to their medical treatment guidelines and drug formulary. These updates adopted the Montana Utilization and Treatment Guidelines, 7th Edition for medical services provided on or after July 1, 2021 and the April 2021 edition of the ODG Drug Formulary for prescriptions written on or after July 1, 2021.

The updates to the treatment guidelines adopted new mild traumatic brain injury and moderate/severe traumatic brain injury guidelines, which replaced the prior single traumatic brain injury guideline and removed the prior eye injury guideline. The update for the ODG drug formulary has minimal practical effect as the Department is required by law to annually adopt a drug formulary. Existing regulations already state that the most current monthly version of the adopted formulary should be used.

More on the guidelines can be viewed here. Information on the drug formulary can be viewed here.