By Judges Brian Addington and Dale Tipps
In recent years, sadly, Tennessee has struggled with issues concerning prescription pain medications. Tennessee was in the top ten states for the number of prescribed pain medications in 2012. In addition, a 2010 report for the Centers for Disease Control and Prevention found that Tennessee ranked eighth nationally nationally for drug-overdose deaths. Opioid addiction is at “epidemic proportions,” so that in 2014, more people died in Tennessee from it than in car accidents or by gunshots.
The Tennessee Legislature has responded with regard to the role workers’ compensation might have played. On July 1, 2012, lawmakers amended the statutory definition of Utilization Review (“UR”) to include the evaluation of the necessity, appropriateness, efficiency and quality of medical care services including the prescribing of one or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety days from the initial prescription. Tenn. Code Ann. § 50-6-102(17) (2012). The Legislature also inserted Tennessee Code Annotated section 50-6-204(j) (2012), which discussed all aspects of pain management as medical treatment, including subsection (5), which defined a Schedule II, III, or IV prescription over ninety days from the initial prescription as “medical care services,” and therefore, subject to Utilization Review.
When the Reform Workers’ Compensation Law took effect on July 1, 2014, the UR definition was unchanged, although the section changed to Tennessee Code Annotated section 50-6-102(18) (2014). The pain management section remained as Tennessee Code Annotated section 50-6-204(j) (2014).
Bringing 90-day plus prescriptions under the purview of UR was an attempt to address concerns of overuse of controlled substances in pain management. The effort to balance between the public policy and the needs of injured workers is reflected in Rule 0800-02-06. If an employer wishes to submit a prescription to UR, it must do so within three business days. Rule 0800-02-06-.06(1). The review must be completed in seven business days. Rule 0800-02-06-.06(2). All UR denials are subject to appeal within thirty days to the Medical Director. Rule 0800-02-06-.07(1).
A recent, pre-reform case came before the Bureau in the form of a Request for Assistance on an open medical settlement. (Early on in our tenure as judges, the administrator designated us as “specialist 4s,” so that, in addition to adjudicating cases under the new law, we also remain busy with cases originating from before July 1, 2014.) Without going into the depths of this particular case, it became apparent to us that workers’ compensation professionals — healthcare providers, attorneys, carriers, human resources and risk managers, etc. — need to consider the following in prescription UR disputes before the Court:
1. Is the prescription actually a Schedule II, III, or IV controlled substance?
2. If so, has the employee actually been using the controlled substance over ninety days from the initial prescription?
3. If the answer to the first two questions is yes, what proof must you present in order for the Court to determine the prescription meets those criteria?
4. Did the employer follow the timelines mandated by Rule 0800-02-06.-06?
5. In cases where UR is proper, did the injured worker or doctor seeking to challenge a peer review or UR determination follow the UR appeals procedures set out in Rule 0800-02-06.-07(1)?
These cases present some of the more challenging issues that come before the Court. We judges are mindful of the potentially serious consequences as we fairly apply the law. It is critical for all stakeholders in the workers’ compensation system to be fully versed in the law regarding UR as it intersects with pain management.