The Pennsylvania Chamber workers’ compensation executive committee has submitted its latest proposal to further limit the rights of injured workers. The proposal outlines five areas where it believes it will “improve the quality of care while curtailing waste and abuse.” The five areas are prescription drugs, the utilization review process, fee scheduling of medical bills, longer periods of managed care and administrative issues. To start, we’ll look at the prescription drug changes the Chamber has proposed.


Mandatory Drug Testing


The Chamber wants mandatory drug testing at set intervals when Schedule II narcotics are prescribed. The most common Schedule II prescriptions are oxycontin, fentanyl and hydromorphine. The Chamber claims that this will ensure that the patient is taking the drug as opposed to selling drugs on the street and will be a cost saving mechanism.


The Chamber’s proposal on this issue is designed to appeal to the masses but fails to offer a real problem for which a solution is needed. What legislator wants to be the one to vote against drug testing? By its very suggestion, it plants the seed in the legislators’ minds that injured workers are all addicted to drugs. There are no empirical studies to support that there is any misuse.


What the Chamber has failed to explain is that nearly all medical providers who prescribe Schedule II narcotics perform routine toxicology screens to ensure compliance. This is for the benefit of the patient and also to protect their own professional license. In fact, I always encourage medical providers to perform random toxicology screens to ensure compliance. Drug addiction is an ugly and sad situation; one that I have no problem in taking a hand in preventing. However, the Chamber’s suggestion of mandatory drug tests is merely another way to paint the picture that injured workers are either addicted to drugs or selling them as an effort to make future proposals easier to pass. It simply isn’t true and it continues to bring fault to a no-fault system. If fault is going to be addressed, questions of employer negligence must be open for discussion.


From a logistical standpoint, the Chamber fails to offer any proposal on how mandatory drug testing could even be carried out. It offers no advice on the repercussion of failing a drug test. We know that a failed drug test will trigger an onslaught of fictitious “modified duty” job offers that will be used to cut off the injured worker’s wage loss benefits on the theory that their loss of earnings is due to the failed drug test, not the work injury.


Mandatory drug testing is an easy thing to vote yes for and difficult to vote no. There is no doubt that there needs to be strict compliance with a provider’s prescription recommendation, but the providers are already taking care of these issues. Let’s let the doctors take care of patients, not the Chamber.


Prescription Benefits


The Chamber proposes that the insurance carriers mandate where an injured worker fills his or her prescriptions. Guess what the purpose is? Curbing drug use and lowering costs. Remember that seed about the drug abusing injured worker? It’s back and trying to bloom into a prickly cactus.


The other purpose? Coordination of various drugs to protect the patient. Let’s look at that closer. A workers’ compensation carrier is only obligated to pay for prescriptions related to the work injury. If you ask any provider about prescribing pain medications, they will tell you that they require patients to sign a consent agreement that they are the only doctor who will be prescribing pain medications for them. The work related prescriptions from that doctor will then be processed through the PBM (Prescription Benefits Manager). Prescriptions for unrelated health conditions are prescribed by a primary care doctor and the patient is responsible for payment. Those prescriptions would not be processed through the PBM.   So let’s ask the question again, what various medications are the PBMs coordinating for the patient’s benefit? The answer is that the PBMs are not coordinating anything; they merely serve as a vehicle for the insurance carrier to control the dispensing of medications, control the overall medical care and thus, his or her case.


Through a mandated PBM, the insurer has complete and total control over prescription medications. The upside to the PBM is that they tend to guarantee delivery of prescriptions via mail. However, there are several mail-order prescription companies already in existence that are excellent for the injured worker. They effectively serve as the middle man between the client and the claims adjuster. Difficulties filling prescriptions are problematic for everyone involved; the injured worker, the staff at the firm fielding the call and the adjuster who is unsure as to what exactly is happening at the pharmacy. That’s why we recommend one of several companies to handle prescription medications. They have been a great relief for our clients.


While it is certainly unlawful for a carrier to stop payment for medications without availing itself to the Utilization Review process or formal adjudication by a Judge, I’d have to get into another line of business if the insurance carriers abided by the terms of the Act to decline payment of medications. Experience tells me that control of medications through a PBM will absolutely lead to illegal refusal to pay for medications on a whim and often with serious mental and physical repercussions for our clients. Not to mention unnecessary litigation for everyone.


Private and effective mail order prescription companies are out there to make the dispensing of medications easy for the client and the claims adjuster. We don’t need to reinvent the wheel. Let’s remind the Chamber of this and let the market work itself out instead of monopolizing it.


First Fill


Apparently, the Chamber prefers this to apply only to doctors who dispense medications at their office. They have not proposed this rule to apply to pharmacies. The Chamber’s purpose is simply stated as a cost saving mechanism.


First, we must call into question the very constitutionality of such a proposal. A piece of legislation like this obviously has an impact on interstate commerce. Workers’ compensation cases in the Philadelphia area routinely involve doctors outside of the Commonwealth; primarily in New Jersey, Delaware and West Virginia. Several of the mail-order prescription companies are also out of state. Under this proposal then, out of state pharmacies are allowed to dispense more than one fill of a medication, but our in-state doctors cannot. There are significant issues to think about in terms of the Commerce Clause.


The inquiry should probably end there, but I’d like to point out the other major flaw in this proposal: It suggests that insurance carriers pay differing rates for prescription drugs. This is entirely false. All medical treatment under the Workers’ Compensation Act is subject to the fee schedule. That means all treatment and medications have a set price. The insurance carrier does not pay differing prices for the same prescription to different pharmacies. Thirty pills of prescription strength ibuprofen are paid at the same rate at every single pharmacy for every single injured worker. Case closed.


The Chamber’s proposals may be new, but the driving force is not. Their goal is to use talking points like cost-saving and drug abusing claimants in order to gain more control over medical care of the injured worker and the overall claim. Controlling the doctors they see and the medications they take allows insurance companies to hurt hardworking people in what is often the single most difficult time of their life.


By Sam Pond


Special to the Pennsylvania Law Weekly

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