Publications
APS Bulletin • Volume 11, Number 1, January/February 2001
Articles
Treating the Injured Worker: Incentives to Reduce Care
Ronald J. Kulich, PhD; Elisabeth Kay, MSW; Marianne Gibbons, MS MBA; Noshir Mehta, MS DMD
There is no doubt as to the cost of chronic pain in the workplace (Business and Health, 1996). The plight of injured workers was first recognized in the early 1900s when state regulatory “no fault” systems were established to provide an exclusive remedy for injured workers. Under most of the current state workers’ compensation systems, employers compensate workers for injuries connected with work regardless of fault, covering a portion of lost wages and necessary medical expenses. In some cases, workers and their families who have suffered a level of work-related permanent disability also are awarded an additional financial benefit when the individual has lost the ability to compete in an open job market. In return for guaranteed limited wage replacement and medical coverage, the employee gives up the right to hold the employer liable in civil court. The employee agrees to accept this modest financial benefit as partial remuneration for his or her actual loss, independent of the degree of pain and suffering (Feuerstein, Huang, & Shaw, 2000). This administrative system was meant to supply the worker with rapid access to medical care and rehabilitation so that the individual could be brought back into the workforce in a timely fashion.
Unfortunately, reduced costs and early return-to-work gains were not realized (Sanders, 1996). The cost of the state worker injury programs ballooned in the 1970s and 1980s, largely because of spiraling medical expenses. Allegations of fraudulent practices abounded, and pain facilities were often at the forefront of those receiving criticism for questionable practices (Taricco, 1996). Legislative efforts were undertaken in many states, and restrictions were placed on access to care by means of formal utilization review systems, case management, limits on provider choice, and other cost-containment policies (Feuerstein et al., 2000). Some states also established formal managed care systems in an attempt to address the issue of cost and overutilization.
Other states with strong worker lobbying organizations resisted shifting worker injury claims to a managed care system. For example, Massachusetts did not institute comprehensive managed care within its workers’ compensation system, and workers retained the right to choose their doctors. However, regulatory provisions aimed at cutting costs increasingly restricted their choice of providers. Furthermore, this lack of administrative oversight meant that the providers selected were not subject to the same quality indicators as required by other state’s managed care organizations. Ironically, a formal managed care organization for worker injuries might have required the carriers to adhere to the use of the same quality indicators required of other states’ managed care organizations.
To address medical costs and alleged abuse of the system by providers, the Massachusetts Department of Industrial Accidents (DIA) sought to establish clinical guidelines for care. A specific focus was placed on high-cost injuries, and chronic pain was among them. In the mid-1990s, a state committee was established to develop a consensus-based treatment guideline for chronic pain syndrome (Guideline 27).
Unfortunately, professionals working in pain management did not participate in developing the guideline, and the pain societies were not notified. Nonetheless, Guideline 27 was adopted by the state in ƒ The state guideline proposed standards for evaluation and treatment of chronic pain within an interdisciplinary inpatient or outpatient setting and encouraged an interdisciplinary evaluation, which included medicine, psychology, and the rehabilitation disciplines. Guideline 27 established strict time parameters for evaluation and treatment, including frequency and length of treatments. Return to work and function were the main outcomes attached to the treatment pathway, and the focus was decidedly operant-rehabilitative versus palliative.
Most New England Pain Association (NEPA) members had never heard of Guideline 27, and few had seen it. At the 11th hour prior to the proposed implementation of the guideline, NEPA caught wind of Guideline 27 and rapidly established a six-member interdisciplinary committee to address what were perceived to be the failings of the guideline (Kulich & Rochman, 1999). The committee sought review and solicited feedback from the entire NEPA membership.
Although there was clear consensus among the committee members that injured workers represented a unique population likely to benefit by the sort of structured rehabilitation approach proposed by the state, the committee members felt that the guideline should be amended. The NEPA committee formally proposed a series of additions and changes to Guideline 27 with the knowledge that Massachusetts State Rule 6.06 required that Guideline 27 be reviewed “at least annually” by the state. The NEPA committee made the following recommendations:
- Correct the guideline by offering current terminology of chronic pain.
- Underscore the problems associated with consensus- versus evidence-based guidelines.
- Address the need for follow-up care. (This was absent from the guideline.)
- Ensure that all clinicians in the team possess expertise on the evaluation and treatment of pain. (The guideline required only one team member to possess pain treatment expertise.)
- Ensure that clinical services be allowed for concurrent pain diagnoses when deemed to be appropriate (e.g., anesthesia procedures, opioid maintenance).
- Address appropriate definitions of addiction, tolerance, and dependence. (The guideline required “detoxification” from opioids.)
- Address patient motivational and cognitive issues in establishing a treatment plan.
- Ensure that the patient have an option of a second opinion from a pain specialist.
- Include specialty disciplines in the treatment team where necessary (e.g., social work).
- Employ valid and reliable outcome measures.
- Encourage referral to support organizations that reinforce maintenance of treatment gains (e.g., American Chronic Pain Association).
The NEPA Executive Board accepted the final report in the fall of 1998 Although the impact of the recommendations was unclear, Guideline 27 was eventually introduced in its original form several months later. Unsuccessful lawsuits by transcutaneous electrical nerve stimulation unit manufacturers stalled its implementation for approximately 1 year, and then Guideline 27 was formally implemented. Although there is not consensus, this guideline seems not to have impeded access to pain care. In fact, some clinicians specifically refer to Guideline 27 when requesting approval for interdisciplinary treatment. The state is now considering revising the guideline with greater emphasis on pathways for anesthesia procedures, and NEPA recommendations likely will be heard.
Although the NEPA committee was well represented by a full range of disciplines, it was curious that many pain specialists declined to participate. In one person’s words, “It would be of no relevance.I won’t treat workers’ compensation patients, I might as well see them for freethe fees are too low.” A subsequent meeting with DIA staff members revealed that the fee schedule remains a major impediment for access to experienced pain clinicians. Even a reasonable guideline may offer little assistance if another financial vehicle for preventing access is firmly rooted.
The Massachusetts Division of Health Care Finance and Policy, an agency separate from the DIA, controls the fee schedule. They can amend, alter, or decline to update medical fee schedules as another strategy for reducing medical costs. In this regard, Massachusetts ranks 49th in the continental United States with respect to its medical reimbursement schedule. As a result, it became increasingly clear in the 1990s that workers’ compensation patients could only be treated in large medical centers where the costs of pain treatment could be absorbed or shifted to other reimbursement sources. The second alternative for the pain patient was to seek out community practitioners who operated at extremely high volume to minimize their costs. These were largely unidisciplinary clinics, and many had questionable reputations. The third alternative for the pain patient was to rely on the pain facility to directly negotiate with the workers’ compensation insurance carrier for a better rate, a practice that was already widespread among many spine surgeons. However, there was no force of law to compel the carrier to negotiate, and the carrier could select clinicians (and direct volume their way) based on their need to minimize cost.
A more significant bombshell was dropped in the fall of 2000, affecting access to pain care in Massachusetts. The medical fee schedule for work injuries was “unbundled,” and global fees for evaluation and treatment were reduced. There was now a financial incentive to bolster the pain evaluation with multiple components to maintain level fees for reimbursement. Some fees were reduced while others were raised, without any effort to reinforce adherence to a uniform standard of care or current guidelines.
Unfortunately, the pain societies again were not invited to the public hearings, and many of the new fees were set without opportunity for comment. Because the newly established fees remained low or were reduced even more in many cases, clinicians were again encouraged by the DIA to negotiate for higher fees individually with each carrier. The table illustrates a few of the current fees.
Although some clinics might think that they are able to work with this schedule by adding codes for ancillary services such as chart reviews, most organizations will be required to negotiate higher fees to minimally cover the cost of pain services. Herein lies a serious problem, as the negotiation can succeed only at the discretion of the workers’ compensation carrier. There are no administrative or civil avenues of recourse for the pain patient or provider, and the carrier can establish relationships with providers that may not be governed by quality standards. Cost becomes the primary factor in making the decision as to whether the carrier accepts the pain clinician’s offer to provide the service at a reasonable fee. From the perspective of the workers’ compensation carrier, outcomes are best measured by declaration of a work capacity, closure of the case, or both. Some clinics may have an incentive to offer “maximum medical improvement” pronouncements so legal cases can be quickly closed. Although these can be admirable goals in a program designed to treat work injuries, outcomes that reflect quality of life, pain relief, or improved function independent of work activity become unimportant. Although managed care organizations often face increasing state monitoring through the National Committee for Quality Assurance (NCQA) and HEDIS® (Health Plan Employer Data and Information Set) outcomes, the workers’ compensation carrier may not be held to the same standards, and there is an inherent incentive to negotiate with pain specialists who can best meet the financial goals of employers or their workers’ compensation insurance carrier.
It must be noted that these concerns should not discourage pain facilities from entering into direct negotiation with carriers. There are excellent examples of effectively negotiating “case rates” for pain services, where costs can be managed while providing safeguards for quality (Perrone, 2000). Government regulatory bodies can be coaxed to structure fee schedules that reinforce quality of pain care rather than undermine access.
Our hope is that the current Massachusetts fee schedule modifications were due to lack of information on the part of the Division of Health Care Finance and Policy, particularly with respect to the specific needs of patients who suffer from chronic pain. To illustrate further, it is intriguing that the new fee schedule changes offer a substantial increase in reimbursement for medically supervised psychoanalysis ($86/hour) whereas hourly short-term behavior therapy charges were reduced to $48 for psychologists and $41 for social workers specializing in pain treatment.
NEPA recently established another legislative committee to better address these emerging issues. In today’s healthcare market, managed care can come in many forms. We now see a workers’ compensation system in Massachusetts that may circumvent state regulations governing other managed care organizations. Restricting access by manipulating fee schedules or providing incentives to select providers may have a more deleterious impact on patient care than any other cost-containment strategy, and it is likely that similar access to care issues are arising in other states.
References
Business and Health. (1996). Special report: The price of pain in the workplace, the impact of pain, assessing and managing its costs. Business and Health, 14, 8–11.
Feuerstein, M., Huang, G.D., & Shaw, W.S. (2000). Responding to the shifting managed care environment in workers’ compensation. In S. Lande & R.E. Kulich (Eds.), Managed care and pain (pp. 173–196). Glenview, IL: American Pain Society.
Kulich, R.J., & Rochman, D. L. (1999). New England Pain Association Subcommittee for Massachusetts Worker Compensation, Chronic Pain Syndrome Guideline #27, Summary of Report to the Mass. Dept. of Industrial Accidents. New England Pain Association Newsletter, 4, 1, 10–11.
Perrone, R. (2000). Integrating pain medicine and managed care. Symposium conducted at the APS 19th Annual Scientific Meeting, Atlanta.
Sanders, S. (1996). Why do most patients with chronic pain not return to work? In J. Cohen & Campbell (Eds.), Pain treatment centers at a crossroads: A practical and conceptual reappraisal. Seattle: IASP.
Taricco, A. (1996). Perils of payors: A pain center paradigm. In J. Cohen & Campbell (Eds.), Pain treatment centers at a crossroads: A practical and conceptual reappraisal. Seattle: IASP.
We welcome commentary or assistance by those who have worked on initiatives in other states. Please contact Betsy Kay, chair, Legislative Committee, New England Pain Association (Ekay965842@aol.com).