Workers’ Compensation Legislative Update

Posted by on 10.10.2017 in Featured, Uncategorized

Representative Ryan Mackenzie (R-Lehigh) authored House Bill 18 (HB 18) which, if passed, would establish a formulary that would be used to determine the reasonableness and necessity of prescription medication.[1]  More specifically, the bill would require the Department of Labor and Industry to select a prescription drug formulary.   Any prescription drug treatment inconsistent with the selected formulary would be considered unreasonable and unnecessary.  The bill permits an exception if the treating provider submits an evidence based letter of medical necessity.

 

HB 18 was presented to the House on June 14, 2017, where it encountered opposition.   It was then referred to the Human Services Committee.  The Chair of the Human Services Committee, Gene DiGirolamo (R-Bucks County), is opposed to HB 18.  If left in the Human Services Committee, HB 18 would have died there.  However, a proposal was made and a vote was passed moving HB 18 to the Rules Committee which is chaired by Dave Reed (R-Indiana County), the Majority Leader.  The current plan is to bring HB 18 back to the floor of the House in the fall of 2017.

 

In recent weeks, news articles have appeared regarding certain pharmacies owned by physicians or in which physicians have an ownership interest.  Currently, there is a provision in the Workers’ Compensation Act that prohibits a provider from referring a patient to another provider or facility in which the provider has an ownership interest.  However, doctors are arguing that the self referral prohibition does not apply to a pharmacy.  Amendments have been added to the HB 18 to clarify the prohibition of physicians referring patients to pharmacies in which the physician has a financial interest.

 

Turning our attention to the IRE, the recent Supreme Court decision of Protz v. WCAB (Derry Area School District) ruled that the section of the Workers’ Compensation Act that established an employer’s right to obtain an impairment rating evaluation is unconstitutional.  As a result, employers are without a mechanism to limit ongoing disability except in cases when the injured worker actually returns to work, is deemed capable of returning to work, or is found to have residual earning capacity.  Legislation has been introduced in the House to amend the Workers’ Compensation Act that would reinstate the basic premise of the impairment rating evaluation but to correct the portion deemed unconstitutional by the Supreme Court.  HB 1840 was referred to the Labor and Industry Committee on October 2, 2017. According to a recent discussion with Representative Mackenzie, there is hope that the legislation will gain traction within the House and the Senate.  He is uncertain of Governor Tom Wolf’s feelings towards the HB 1840 at this time.

 

Clearly, both HB 18 and HB 1840 will have a sweeping impact on the workers’ compensation community.  We are continuing to track the progress of this legislation and will provide additional updates as they become available.

[1] http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2017&sessInd=0&billBody=H&billTyp=B&billNbr=0018&pn=2014

For more information please contact Shawn Gooden at 717.237.6960 or sgooden@wglaw.com

 

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

This post by Weber Gallagher