Moments earlier, the reader received a letter purportedly from a pharmacy biller’s “counsel” stating they had been in touch with someone at the Illinois Work Compensation Commission who claimed they were told by an unnamed official what to do in processing pharmaceutical bills. The letter claimed their “counsel” had been told the repackaged drugs for which they were billing astronomical rates should and must be paid for at 76%.

If you are not aware of this new phenomenon, the relatively new concept of “repackaged” drugs occurs when medical providers buy wholesale prescriptions for what you can get them for at a typical pharmacy and then “re-price” them at an exorbitant markup. The provider would then simply add the much higher drug cost to overall medical billing and hope the medical bill payer would simply approve or discount marginally, creating an enormous profit.

The problem with that approach is it is in direct opposition to what the Commission’s web site says! The Commission website provides:

How should pharmacy drugs be paid?

The fee schedule does not apply to pharmacy prescriptions. Prescriptions should be paid at the usual and customary rate. The law and rules make no mention of what the usual and customary rate is. No formula was adopted. If there is a dispute, the parties would take the issue before an arbitrator.

Our reader advised there are some general HCPCS codes on the fee schedule (e.g., J3490: unclassified drug) that show a fee or POC76 (i.e., pay 76% of charge). Some providers try to use these codes for prescription bills and claim payment should be at that fee or at 76% of charge. Our reader asserts this view is incorrect and should be rejected. We agree that drug vendors should not improperly implement HCPCS codes to side-step the fact Illinois does not have a WC pharmacy fee schedule.

We have forwarded the letter and the concerns we have about “repackaged drugs” to our Illinois Attorney General’s office for their consideration. We assure everyone of our view the practice is simply and patently gouging when it comes to a fair price for prescription medications for Illinois employers and injured workers.

We thank our reader for her thoughts and recommendations. We would love to forward any response you might have.

Compounded drugs are hand-made rather than mass-produced, and supposedly tailored to the needs of individual patients. These practices are mainly regulated by the states instead of the federal Food and Drug Administration. The disparities resulting from 50 sets of rules and levels of technical and inspection prowess shouldn’t be allowed to continue. Repackaged drugs are prescription or over-the-counter drugs taken from initial drug producers and repackaged and repriced, usually by physician/clinic dispensers. The cost is from two times higher to twelve times higher. In one study, repackaged drugs accounted for less than a third of all prescriptions but over half of all dollars paid. The concept is especially troubling when one considers the overwhelming majority of the top 20 drugs are generic.

As has been the case for the last several years, the average prescription cost of “compound drugs” is well over the national average. A growing percentage of the providers dispensing compound drugs submit via paper, and many payers have had limited capabilities with adjudicating these bills at the appropriate or allowable rates. While the number of the compound drug paper bills is currently a small percentage of most national payers’ overall prescription volume, the dollars associated with these transactions and the potential savings can be high.

With many states’ workers’ compensation laws, the rules vary regarding how a payer can adjudicate prescription charges. For example, California’s billing regulations require the providers (pharmacies, compound drug companies, physicians, etc.) to submit a detailed list of the individual ingredients in each compound prescription. In addition to significantly overpaying, payers encounter other drug treatment and billing-related shortcomings and challenges when managing compound drugs.

Some of the issues include:

Double billing–compound drugs are not required to have nor do they use standard national drug code (NDC) numbers, and therefore it is difficult to identify when multiple fills for the same prescription are being provided. In addition, some times the compound pharmacy companies also use different third-party biller names, further complicating a payer’s ability to identify this type of situation.

Drug interactions–since individual ingredients of the compound drug are not captured as part of the prescription transaction within the claimant/patient profile, there is a high risk for potential drug interactions (adverse effects) or overdoses when other drugs in a patient’s overall drug regimen are being combined with these compound prescriptions. In addition, the lack of NDC-level detail does not allow for drug utilization edits to occur on these transactions. The only way to solve this issue is to record and adjudicate each individual ingredient within the same pharmacy management system, using the same patient profile and applying the same clinical review edits and rules.

Overbilling–occasionally compound drugs will include the use of higher priced brand name drug ingredients regardless of whether there is a generic alternative available. The lack of NDC detail within a pharmacy management system will not identify these types of issues. There is also a frequency of overbilling compared to the allowable compound production time billing rate.

Therapeutic duplication with different dosage forms–dispensing the same drug in oral and topical form and avoiding the appropriate drug utilization edits since they aren’t using standard NDC numbers.

On the closely related repackaging issue, it is difficult for WC payers to receive accurate prices for repackaged medications, which, by definition, mean a pharmaceutical product is removed from the original container with an original NDC and put into a new container with new quantities, therefore requiring a new NDC, with a new repackaging company label and price for the medication. By its nature, the process can result in inaccurate and overpriced medications. Some states other than Illinois have been attempting to help payers manage the process better, after they have begun to understand the cost-control issues.

We hope to see such prescription and over-the-counter drug abuses end and urge our administrators to get involved to help Illinois business counterattack abuse. We appreciate your thoughts and comments.

Companies in states that have legalized medical marijuana clearly face a dilemma when deciding how to handle employees who use the drug. Many of the 14 states that have legalized medical marijuana have not addressed the issue of how employees who use the drug are protected in their workplaces. As a result, some companies have fired employees who they know are legally allowed to use medical marijuana in an effort to avoid charges of negligence that could be made in the event that such employees injure a customer.

This touchy issue garnered increased attention after a big box retailer decided to fire an employee at their location in Michigan. The employee indicated he used medical marijuana to help him deal with pain caused by cancer and an inoperable brain tumor. Although the employee had a medical marijuana card and prescription for the drug from his doctor and claimed he never went to work under the influence of the drug, the employer fired him because it was concerned about the health and safety of its customers, vendors and employees.

The State of Michigan’s medical marijuana law apparently prohibits companies from discriminating against individuals with medical marijuana cards. Therefore, Michigan’s Department of Civil Rights is investigating the case to see if the decision to terminate violated the state’s disabilities protection laws.

Our recommendation is to have a clear policy about all drug use. First, ban any illegal drugs and enforce a drug and alcohol-free work site rule. If you need help with implementing such rules, send a reply.

Next, as to legal drug use in the workplace, at a minimum, require open disclosure as an advertised and promulgated personnel policy. You can’t deal with issues you aren’t aware of. Any employee or other staff member at any level who is taking a drug or medication, whether or not prescribed by the staff member’s physician or other healthcare giver, which may adversely affect that employee’s ability to perform work in a safe or productive manner, should be required to report such use of medication to his or her supervisor. This mandate should include any and all drugs which are known or advertised as possibly affecting judgment, coordination, or any of the senses, including those which may cause drowsiness or dizziness.

The supervisor, acting in conjunction with your management, must then determine whether the employee can remain at work and whether any work restrictions will be necessary. As part of due diligence, consider contacting an OccDoc to give you their thoughts for your complete file before taking any action. If you need solid OccHealth doctors who can assist in such situations, send a reply. If you need sample personnel policy provisions on these issues, send a reply.

Your goal is to have your defense case-in-chief in place long prior to any complaint being raised. We appreciate your thoughts and comments.

In Powell v. International Crown, 99 W.C. 064102, No. 09 I.W.C.C. 0992 (October 2009), Petitioner, a journeyman iron-worker, admittedly went out drinking with his co-workers a little before lunch as the wind was making it difficult to perform the job duties. While at lunch, Petitioner admitted to drinking at least four beers and one “blue shot” but could actually not recall how many drinks he had exactly. Petitioner admitted to drinking for four hours at the bar. Petitioner testified he had no memory of anything after leaving the bar until waking up in the hospital.

During his blackout, three of the four man crew apparently returned to the worksite in order to secure the gear for the next day. Upon arrival at the job site, the foreman decided to continue working, and Petitioner climbed onto the roof where the work was being performed. Petitioner apparently worked for 10 minutes and then fell off the roof. Upon arrival at the emergency room, Petitioner was unable to recall the traumatic event or to provide a past medical history due to his intoxication. Petitioner’s blood alcohol level tested almost an hour after leaving the bar remained at .248, over three times the legal limit. Petitioner had final diagnoses of vertebrae and rib fractures and alcohol abuse. Petitioner later underwent thoracic spine surgery.

Petitioner attempted to bring up the “functioning alcoholic” argument at trial, with the testimony of his medical expert evidencing “a longstanding history of alcohol consumption by Petitioner, beginning at the age of 21 with daily drinking after work and continuing to present day, where Petitioner reported average weekly alcohol consumption of at least two cases of beer.” Petitioner’s expert was unable to definitively opine he was alcoholic, but he opined Petitioner “clearly had a prodigious tolerance for alcohol and … was able to perform a variety of cognitive and motor functions without alteration, lack of coordination or confused speech…” The expert went on to opine Petitioner was not impaired from performing his job functions at the time of the injury.

We note although the Arbitrator found Petitioner to have fallen off the roof due to essentially passing out from alcohol intoxication, he relied on the above findings as well as the indication that Petitioner was under the direction of his foreman a the time of injury to award the injuries as compensable.

The Commission in its decision concisely stated current Illinois law, stating as follows:

…where the evidence of intoxication is significant to the point that the court can hold, as a matter of law, that the injury arose out of the drunken condition and not out of employment, recovery under the Workers’ Compensation Act can be denied.” District 141, International Association of Machinists & Aerospace Workers v. Industrial Commission (1980), 79 Ill.2d 544, 39 Ill.Dec. 196, 404 N.E.2d 787). Although the ultimate conclusion must appear as a matter of law for the intoxication defense to succeed, such a decision is dependent on a number of factual determinations, such as the degree of the employee’s intoxication, his capacity to continue carrying out his employment and the cause of the accident. Paganelis v. Industrial Commission (1989), 132 Ill.2d 468, 139 Ill.Dec. 477, 548 N.E.2d 1033; see also Lefens v. Industrial Commission (1918), 286 Ill. 32, 121 N.E. 182 (the condition of an employee as to his intoxication is a question of fact)).

The Commission reviewed the testimony de novo and found clear evidence alcohol was the sole cause of Petitioner’s injuries and reversed the Arbitrator, but part of their ruling was based on the discrepancy between the reported outward appearance of Petitioner at the time of the injury by his co-workers in contrast to his outward appearance just minutes later by emergency responders and police officers. We applaud the Commission for getting this one right in the end, but we have to ask the question – if an employee is clearly three times the legal limit, literally halfway to the point of death due to alcohol consumption (achievable at BAC levels of .5), do we need to continue to rely on the “functioning alcoholic” standard? Do we really need to look into whether a person smelled of alcohol or was slurring their speech when we have proof of BAC?

Whether someone looks like the can handle their liquor doesn’t mean the law should differentiate based on appearances. Ask the mothers of children killed by drunk drivers whether they care if the driver looked sober.

This article was writing by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to post comments on our award winning blog at www.keefe-law.com/blog.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC October 29, 2009), claimant, an apprentice carpenter, was seriously injured after falling through a floor opening on a second floor of a house he was helping to build. His employer contended marijuana use, detected via urinalysis, was the proximate cause of fall. The decision indicates the employee was winding in a chalk line when he fell. Other than urinalysis, the majority ruled there was

- No evidence … he was so intoxicated he had abandoned his employment, nor
- Was marijuana use was sole cause of fall, and
- Witness statements establish employee was performing his job duties at time of accident.

The court did rule the Commission’s award of penalties and fees was reversed as any “reasonable person” could have concluded claimant might not be entitled to workers’ compensation benefits. We are confident this won’t alleviate the onus of paying lifetime medical and lost time benefits. We also point out this is the third reported decision in the last 12 months where our reviewing courts have awarded benefits to someone who admittedly and unquestionably committed a crime.

In our view, based on the evidence outlined in the ruling, this claim would have been compensable under traditional Illinois’ legal analyses but it was handled by one of the most misguided TPA’s of Illinois TPA’s. In our view, the TPA had their defense counsels do any number of unusual things in spending literally tens of thousands of dollars to lose this claim over the nine years it was unsuccessfully litigated. If you have claims involving intoxication or impairment and want real answers on effectively defending them, send a reply.

Please note this ruling continues to implement what we feel is a contradictory and paradoxical analysis of allowing substantial seven-figure workers’ comp benefits despite an injury under the undisputed influence of drugs or alcohol. One legal device to find such an injury compensable is indicated to be the claim the impaired miscreant did not “abandon employment.” We note this same legal concept was recently proposed in new legislation.

We ask the rhetorical question of how a worker can have a work injury if they have abandoned employment? If the worker abandoned employment while stoned or drunk, they aren’t on the job any more, correct? If they aren’t on the job, they can’t ever have a work injury so how does such language add anything to this analysis? It is our academic view the paradox doesn’t add anything to the compensability of such a situation and it guarantees benefits to any intoxicated or stoned worker who remains on the job after becoming drunk or stoned.

While we feel this case would have been compensable for a number of reasons including possible OSHA violations, we feel legislation is the best way to address workplace intoxication and impairment. Please also understand an impaired worker is a health and safety risk, not just to themselves but to all workers around him or her. We also urge all Illinois and U.S. employers to learn from this lesson and implement drug and alcohol-free workplace protocols. Please let us know your thoughts and comments.

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash. After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. The doctor does not have to be from Illinois to have access—they have to simply apply and send their bona fides to the Department for the registration and approval process. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

The reader’s question was: You indicate IME doctors should routinely run this prescription check as part of the services included in a solid exam. You also indicate in order for the information to be shared there needs to be HIPAA authorization signed by the claimant. In many cases we are finding claimants refuse to sign the HIPAA releases and when getting them from Petitioner’s attorneys they are exclusively for specific doctors, other care-givers and dates. How can we get the PMP info from the IME doctor if we don’t have a signed release?

The answer is: According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. That language is taken directly from the PMP website.

Therefore, any licensed doctor or pharmacist can review the website and get the information for you. They don’t need a HIPAA release for that purpose.

As a best practice, we feel the IME doc should have a HIPAA release signed to disclose it to you. Because it is a workers’ comp claim, technically it should fall under the U.S. Department of Labor’s workers’ comp exception to HIPAA but we still encourage folks to have a release signed, if possible. Thereafter, once you or anyone in your company has the results of the PIL from any doc—that information cannot then be redisclosed, openly discussed or used by anyone outside the HIPAA circle without a HIPAA release protecting you when it is redisclosed.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com or post them later today on our award-winning blog at www.keefe-law.com/blog.

At the 17th Annual SafeWorks Illinois Work Injury Prevention and Control Strategies conference held in Champaign, IL last week on October 29, 2009, one of the highlights for many conference goers were the discussions on the various new technologies available to help facilitate the management of workers compensation claim to maximize recovery. Dr. David Fletcher spoke about the new Illinois Prescription Monitoring Program which allows any licensed physician or pharmacist to determine if a patient is getting narcotic prescriptions from multiple providers and even determine if an injured worker may have received narcotics pain medication prior to a work injury. The Illinois Prescription Monitoring Program is open only to licensed Pharmacists and Physicians in the state of Illinois—for claims adjusters and risk managers who want to know what is on the database, you need to run the inquiry through an OccDoc or IME physician.

So far, this new technology and related website has seemingly stayed under the claims radar and not widely know even though it provides valuable information that improves patient care for injured workers and helps prevent substance abuse and diversion of narcotics. The PMP is authorized by 720 ILCS 570/321, known as the Illinois Controlled Substances Act and applies to Schedule II, III, IV, and V prescription medications. The PMP Prescription Information Library (PIL) data base contains all Schedule 2, 3, 4 and 5 prescriptions dispensed by Illinois retail pharmacies. All retail pharmacies that dispense scheduled drugs are required to report their scripts to the PIL on a weekly basis. The database in the PIL updated is updated on Friday of each week.

IME doctors need to add this quick and simple web search to their day-to-day evaluation protocols

Accessing this new technology should be part of every independent medical examination that is conducted for any Illinois workers’ comp claimant. We don’t feel an IME physician can do a solid job if he/she doesn’t readily access this simple website to confirm the patient is taking only those drugs prescribed for the condition. Both sides of the WC bar want to know the patient is taking only what they are supposed to be taking and any surprises eliminated. We suggest this web search be added as a normal course of IME practice and put into every IME report.

In states that have the web service, a routine PMP search should also be part of all OccHealth care

As part of fitness for duty evaluations, some occupational medicine practitioners are using the site to check new hires that are seen for post job offer physical exams to determine the truthfulness of the responses to post job offer questionnaires about current drug use. In all OccHealth settings, a PMP search should be de rigueur—we assert the OccHealth doc can’t do solid job without insuring accurate review of a patient’s use of scheduled drugs for the last six months.

We also assume every ER in the State of Illinois should access this site as part a protocol for any patient that is prescribed narcotics or other controlled substances.

Attacking doctor-shopping and illegal prescription drug reselling for WC claimants

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash.

After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

Providers input the patient’s first and last name and date of birth (DOB). The database then kicks out a chart listing any narcotic prescriptions, listing most recent dates first. The chart lists the number of pills dispensed, the pharmacy which pills were dispensed from, and the provider who prescribed the medication.

HIPAA and all confidentiality and disclosure provisions of Illinois Law cover the information contained in this database. All users must fully comply with HIPAA Privacy Rule Requirements when using this system. Access to this database is yet another reason we recommend all workers’ comp accident or claim investigations start with both an accident reporting form and execution of a HIPAA-compliant release. If you need a HIPAA-compliant release, send a reply and we will email it to you.

As of November 2008, 38 states had enacted legislation that required prescription drug monitoring programs: 32 of those programs are currently operating. In FY2005, the Federal Department of Justice Harold Rogers Prescription Drug Monitoring Program received $10 million in funding and Illinois was one of 22 states awarded grants to start a PMP. The Illinois PMP went on-line in January 2008.

According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. The PMP has been helpful in bringing to light addiction and drug-seeking issues in patients who are requesting narcotics at levels that appear out of sync with the level of physical findings on exam and diagnosis. Examples include one recent soft tissue injury patient found to be receiving narcotics from another local provider, who it turns out was managing the patient for a chronic pain issue which the patient failed to mention. In addition this patient had signed a narcotics contract with the other provider stating she would not receive narcotics from any other providers.

Another patient was found to have ‘made the rounds’ of local providers, including dentists, receiving multiple narcotics prescriptions. When challenged with this information and told her physician would no longer dispense or write narcotics prescriptions, the patient abruptly dropped her workers’ compensation claim and never returned.

Another solid feature is the physician’s ability to learn the prescriptions have been written with his/her DEA number. This allows the physician to run a report displaying all scheduled drugs recently prescribed. This feature allows the physician to determine if someone is stealing scripts from their office or impersonating the doctor to fraudulently use their DEA #. It also allows the physician to monitor and detect pharmacy errors with this feature.

Recent discussions and presentations about PMP were presented by Dr. David Fletcher at REBEX (Regional RIMS conference in Wheeling) and the 17th Annual Safeworks Illinois Work Injury conference where the response to learning about this new technology was overwhelming positive. We are also advised the folks at the Department of Health and Human Services liked the public relations impact. They heard the news on the topic and have contacted Safeworks Illinois about it. They are applying for additional federal grants to expand the program, which is already saving lives and money by decreasing inappropriate narcotic prescriptions and putting unscrupulous doctors on notice that they are being closely monitored.

In summary, the PMP has changed the face of Illinois workers’ compensation case management with the ability to access historical information on controlled substances and assists with the proper management of chronic pain patients. For more information on the Illinois Prescription Monitoring Program, contact: Stan Tylman, 401 North Fourth Street, Springfield IL, 62702 Phone: 217 524-9074; Fax 217 557-7975

Comments and questions about PMP can be directed to Dr. Fletcher at http://www.safeworksillinois.com/contact-safeworks.html.

Please remember the Illinois WC Act and its implementation by our Commission and reviewing courts is wildly unpredictable in this state. In Paganelis v. Industrial Commission, the Supreme Court denied benefits to a driver who was .238 drunk and was seriously injured in a crash. But later rulings sometimes “open the door” by not aggressively penalizing drunks and drug addicts in the Illinois workplace—one awful IWCC ruling actually rewarded an amputee who was drunk and lost his arm but received benefits in a Commission decision finding he was a “functioning alcoholic” and therefore wasn’t injured due to his impaired state. We assure you every drunk and drug addict makes the same argument when bad things happen to them and those around them in the workplace. We assure all of our readers, your tolerance level for anyone being impaired on your work floor should be aggressive—don’t let a so-called “functioning” drunk or drug abuser put you out of business when they injure themselves or others and you have to pay them thousands in medical bills, lost time and permanency.

Drug-Free Work Week is the perfect time to launch a Drug-Free Workplace Program if your organization does not already have one. Such programs are complements to other initiatives that help protect worker safety and health. To learn more about them, visit DOL’s Working Partners Web site at http://www.dol.gov/workingpartners/. In particular, the site’s Drug-Free Workplace Advisor Program Builder offers detailed guidance on how to develop a Drug-Free Workplace Program, starting with the first step: a written policy.

If your organization already has a Drug-Free Workplace Program, Drug-Free Work Week is a logical time to ensure the program is adequate to meet current needs and to remind employees about its important role in keeping them safe on the job. One way to do this is to distribute a new copy of your drug-free workplace policy, along with a positive message about valuing health and safety, and then provide an opportunity for them to ask questions about it.

To achieve a drug-free workplace, it is critical that an organization educate its workers about the nature of alcohol and drug use and its negative impact on workplace safety and productivity. Drug-Free Work Week is a natural time to step up such efforts through training sessions, guest speakers or brown-bag lunches. Working Partners offers more information on employee training, including ready-to-use training materials. New resources available this year include Fast Facts (an informational card for employees about their role in keeping their worksite drug and alcohol free) and a series of five Tool Box Talks (brief speeches intended for delivery by foreman on construction or factory worksites).

Some observers estimate workplace substance addiction annually costs U.S. employers as much as $250 billion and substance-related deaths are equal to a jumbo jet plane crash every day. In the workers’ compensation arena substance abusers register 50% of all claims and five times more claims than average. This is based on statistics from the National Council on Compensation Insurance.

If you have thoughts, comments or questions on Drug-Free Work Week or implementing a drug and alcohol-free program, send a reply.