Prescription drug costs make up between 13% and 14% of an overall workers' compensation claim, according to the the National Council on Compensation Insurance. (Shutterstock.com)
Who knows best which medications may be essential to help an injured worker return to the job: A doctor, an insurer, or a pharmacist?
This isn't the setup for a bad joke about workers' comp issues: It's a question the Pennsylvania Supreme Court will take up when it hears arguments regarding whether pharmacies should have a say in insurers' review of vital medications prescribed to workers' comp claimants.
Allocatur was granted on three issues:
Did the Commonwealth Court exceed the scope of its authority and substitute its judgment for that of the Pennsylvania Legislature when it promulgated a new rule which mandates non-health care providers are entities with standing and the right to intervene in the Workers' Compensation Act's Utilization Review process?
Did the Commonwealth Court err when it gave non-health care providers the right to void at any time, a utilization review determination regarding the reasonableness and necessity of the care of the physician who wrote the prescription which led to the non-health care provider providing a good or service to the injured worker?
Whether the Commonwealth Court violated the separation of powers doctrine by engrafting a new requirement onto the Pennsylvania Workers' Compensation Act's process for conducting utilization review of treatment by a health care provider by prospectively directing that non-treating entities be given notice and an opportunity to intervene in utilization reviews?"
The Commonwealth Court ruled Dec. 12 that pharmacies are allowed to intervene in an insurer's utilization review under the Workers' Compensation Act, which determines whether the insurance company will provide reimbursement for a claimant's medications.
The decision came in the case of Keystone Rx v. Bureau of Workers' Compensation Fee Review Hearing Office (Compservices/AmeriHealth Casualty Services).
According to Senior Judge Bonnie Leadbetter's opinion, a hearing office relied on a utilization review that said AmeriHealth Casualty Services met its burden of proving that the medications prescribed to Thomas Shaw, the claimant, constituted unreasonable and unnecessary treatment.
Keystone Rx appealed, arguing that the utilization review process unfairly excluded pharmacies where their compensation was concerned, in violation of their due process rights. The court looked to its two rulings in Armour Pharmacy v. Bureau of Workers' Compensation Fee Review Hearing Office (Wegman's Food Markets).
"In accordance with our holding in Armour II, it necessarily follows that a UR determination is binding on the hearing office," Leadbetter wrote. "Here, the UR determined that the medications were unreasonable and unnecessary. Pharmacy is attacking the facial validity of the UR process, and the hearing office correctly held that such a question was beyond its purview."
She continues: "However, we acknowledge that there are due process issues for providers such as pharmacy that are precluded from participating in the UR process but nonetheless are bound by the results that follow them to the fee review process at issue herein. Accordingly, we hold that for UR procedures occurring after the date of this opinion where an employer, insurer, or an employee requests UR, a provider which is not a 'health care provider' as defined in the act, such as a pharmacy, testing facility or provider of medical supplies, must be afforded notice and an opportunity to establish a right to intervene under the usual standards for allowing intervention. Although this court may not usurp the powers of the General Assembly and exceed the parameters of legislation pertaining to medical cost containment, it bears repeating that the polestar of Armour I is that the act must be construed in accordance with due process of law."
Keystone is represented by Havertown-based Daniel Siegel and AmeriHealth is represented by Anthony Bilotti of Anthony Bilotti & Associates. Neither responded to requests for comment.
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