Maine Bureau of Insurance: Opioid Prescription Claims Drop Between 2016 – 2017

In 2016, the Maine State Legislature enacted Public Law 2015, Chapter 488, “An Act to Prevent Opiate Abuse by Strengthening the Controlled Substances Prescription Monitoring Program.” This statute established limits on the duration and dosage of prescriptions that healthcare providers may write for opioid medications. The statute also tasks the Bureau of Insurance with studying the effects of this legislation on claims paid by health carriers and the out-of-pocket costs (coinsurance, copayments, and deductibles) paid by policy holders and certificate holders. 

According to a Maine Bureau of Insurance report, prescriptions for opioid painkillers in Maine have dropped off significantly, in no small part due to a prescription monitoring law that has been called one of the toughest in the country. 

The report specifically finds that opioid prescription claims dropped by nearly 20 percent, with about 27,700 fewer claims between the first half of 2016 and the same period in 2017. Further, the report indicates that insurance companies spent $2.4 million less on opioid and opioid derivatives, while plan members spent nearly $580,000 less.

The decline is thought to be a product of providers weaning patients off of painkillers or using safer alternative modalities for pain, such as physical therapy, massage, or other alternative treatments. 

The recent trend in Maine is part of a larger pattern. According to the U.S. Centers for Disease Control and Prevention, opioid painkiller prescriptions have dropped nationally in recent years after surging since the late 1990s and peaking in 2010. Maine topped the nation for the rate of prescriptions for highly addictive, long-term opioid painkillers in 2012. 

The use of opioids in the context of workplace injuries has been a significant topic of discussion in recent years. With increased awareness of the adverse effects of opioids, the use of alternative therapy, and the new monitoring law, expect the trends above to continue.

WC Board Executive Director and Director of Audits Weigh in on Unsettled Issues; More Issues to Be Addressed

The Workers’ Compensation Board (WCB) recently hosted an open forum featuring input from the WCB Executive Director, Paul Sighinolfi, and Director of Audits at the WCB’s Office of Monitoring, Audit and Enforcement (MAE), Gordon Davis. The following are some takeaways which clarify previous areas of concern.

Discontinuance of benefits for incarcerated employees 

A WCB-8 (i.e., a 21-day certificate) is not necessary to discontinue benefits for an incarcerated employee. Instead, a WCB-4 discontinuance may be used, and the “other” box should be checked, with “incarceration” listed as the basis for discontinuance.

Discontinuance upon a return to work for the pre-injury employer

When an employee returns to work, at his or her preinjury employer, on modified duty, and earns/exceeds his or her average weekly wage (AWW) for one week, a WCB-4 discontinuance will be accepted by the MAE. 

Otherwise, the WCB recommends that the employer/insurer reach out to the medical provider to clarify the M-1, or talk to the employee to verify he/she is not losing time due to the work injury (all conversations should be documented). The best practice is to enter into a WCB-4A Consent Form. However, an internal form signed by the employee, confirming no wage loss due to the injury is acceptable and the employee’s documented confirmation of the same will carry more weight in an audit than a traditional comparison of actual earnings to AWW. 

Vacation pay and sick pay 

Vacation pay is not to be considered regular earnings when calculating benefits. Sick time may be set off. 

Provisional average weekly wages

The MAE takes the position that, if there is uncertainty, an employer/insurer should “estimate a little low” for a provisional AWW, but anything “reasonable” is acceptable, such as an employee’s hourly rate multiplied by the hours the employee was hired to work. 

Calculating average weekly wages and completing wage statements

In preparing a wage statement, 12 weeks of wages are not required. If earnings are consistent but less than 12 weeks are available, one need not use comparable wages. We are reminded to use method D in 39-A M.R.S.A. §102(4) only if A, B, and C do not apply. In such case, wages used must be “representative” and one must have documentation to show how the AWW was arrived at. Ultimately, MAE will accept fair and reasonable AWW’s, even when other methods could also be fairly used.

Interplay between Form WCB-4A and a pending Form WCB-8

A WCB-8 will become moot if a WCB-4A consent form is filed. If an employee returns to work with the same employer earning his or her average weekly wage, or is incarcerated, a WCB-4 discontinuance can be filed, even if a WCB-8 was filed first.

The seven-day waiting period and firefighters

If an employee is concurrently employed as a firefighter, it is the job at which he/she was injured that controls. In sum, a firefighter injured at another job outside of firefighting still has a waiting period.

Fixed partial rates are preferred over varying rates

We are reminded that compensation can be modified to a fixed rate based on actual earnings, even if wages tend to vary but have “stabilized.” Even an employee who works a rotating shift schedule may be set at a fixed rate, so long as there is a rational basis. As well, initial Memoranda of Payment may be set at a fixed rate so long as a fair and reasonable basis is documented.

Fluctuating earnings

If there are earnings fluctuations with no relation to a work injury, and a claim is made, or if the employee still has restrictions, a Notice of Controversy (NOC) should be filed. If there is no claim made and no restrictions, just fluctuating earnings, no NOC should be necessary.

Vacation and the waiting period

If an employee on restrictions goes on vacation, and meets the waiting period, a pay decision is required.

Additional issues to be addressed

Among the issues still being considered are whether benefits can be discontinued without a WCB-8 upon a full release to work; the implementation of an “excusable neglect” standard for Rule 1.1 (i.e., the 14-day rule); and whether a percentage of paid time off (PTO) can be considered as sick time and subject to a setoff.

We will have more information on these issues and others as they develop.