Board Releases Revised Pharmacy Formulary and Accompanying Regulations
The Board has finally released its revised pharmacy formulary regulations for public comment. Our readers may recall that we published awhite paper with our summary and analysis of the proposed formulary in February 2018. The revised formulary does away with the earlier classification of drugs as “preferred” and “non-preferred.” Instead, it classifies the availability of prescriptions depending on the status of the claim (accepted/established or controverted) and the length of time that has passed from the date of injury. The proposed regulations allow for a process of prescribing and dispensing drugs to claimants even where the claim is controverted or where liability has not been established against the carrier. There is no specific requirement that carriers and self-insured employers would then have to pay for the drug if the claim is controverted, but the implication is there. If that is the case, this echoes the Board’s initiative during the eClaims rollout directing carriers and self-insured employers to begin payment of indemnity even in the absence medical evidence of causal relationship. Other regulations regarding treatment issues specifically state that the carriers and self-insured employers are not liable for payments until and unless the claim and condition is established. We would have preferred to see similar language.
The proposed regulations also eliminate hearings and appeal rights in connection with prescription drug benefit issues. Proposed Rule 441.5 and 441.6 of the proposed regulations discuss the prior authorization process that providers must follow for drugs that are not authorized under the formulary. This prior authorization process allows the carrier to conduct the first two levels of review of a provider’s request. If the carrier denies or only partially approves a prescription, the provider can only seek review through the Board’s Medical Director’s Office, whose decision on the matter will be final, binding, and not appealable under WCL Section 23. A claimant may request review of the Medical Director’s decision but the Board has the discretion to respond to a claimant’s request for review via letter or via adjudication. If the Board elects to have the claimant’s request reviewed through adjudication, this is the only circumstance where a claimant may have a prescription review issue heard by a WCLJ. There is no provision by which a carrier or self-insured employer can request review via adjudication. Although there is a streamlined review process outside of the hearing system, carriers and self-insured employers only have 4 calendar days to conduct first level review, unchanged, unfortunately, from the prior proposed regulations. The provider then has 10 days to seek a second level review by a “Carrier’s Physician.” The carrier’s or self-insured employer’s physician then only has 4 calendar days to approve, partially approve, or deny the request. Failure on the part of the carrier or self-insured employer to meet these deadlines will likely result in default authorization of the prescription.
The revised formulary, like the first draft of the formulary, curtails the prescription of narcotics or opioid medications after the first 7 days from the date of injury, except for prescriptions during the “perioperative” period (four days before and four days after surgery). The proposed revised regulations also clarify a question we raised in our white paper about a conflict with the Medical Treatment Guidelines. Under the revised regulations, in the event of a conflict between the formulary and the Medical Treatment Guidelines, generally the Medical Treatment Guidelines shall prevail.
The proposed regulations were published in the 10/17/18 State Register and comments on the revised proposal will be accepted until 11/16/18 via email firstname.lastname@example.org. We will publish a white paper with a more extensive analysis and our recommendations for comments on the proposed regulations soon.
Lyrica Now Included by CMS in WCMSAs
Lyrica (pregabalin) is an FDA approved medication for treatment of epilepsy, diabetic neuropathic pain, post-herpetic neuralgia, fibromyalgia, and other neuropathic pain. However, it is widely used off-label for treatment of chronic pain and, in some cases, anxiety disorder. Historically, the CMS Workers’ Compensation Review Contractor (WCRC) has excluded Lyrica from Workers’ Compensation Medicare Set-Aside Arrangements (WCMSAs) when prescribed for pain or radiculopathy. Recently, however, the WCRC has included Lyrica in some WCMSAs, citing the acceptance in the medical community for this off-label use.
The downside of this for our clients is that Lyrica remains very expensive and inclusion of this medication in a WCMSA will drive up the cost of settlement. Our clients should consider strategies to eliminate coverage of Lyrica in their cases that are approaching settlement to avoid the need to include this in a WCMSA. These strategies may include use of the Medical Treatment Guidelines, IME Review of medical necessity, or negotiation with the claimant for consideration of other medications. Additionally, we note that the revised draft pharmacy formulary published on 10/17/18 permits use of Lyrica as a “Phase C” medication for use either upon acceptance or establishment of the claim or after 30 days from the date of injury. It is noted as a “second line” medication for injuries involving the back, CRPS, neck, or for treatment under the Non-Acute Pain Medical Treatment Guidelines. This means that the claimant must first have an unsuccessful trial of a first line medication under the Medical Treatment Guidelines before being prescribed Lyrica. For questions about how to address this and other medication issues in your WCMSAs, please contact our partnerDan Bowers.
Appellate Division Cases of Note
Grover v. State Insurance Fund
On 10/4/18, the Appellate Division decidedGrover v. State Insurance Fund, affirming a Board Panel finding that a claimant injured in the public section of a parking garage did not experience an injury arising out of and in the course of employment even when the employer paid for claimant’s parking and encouraged its employees to park in a designated section of the garage set aside for them. The majority in this split decision relied on the fact that the injury occurred in a public section of the garage rather than the location designated for the employer’s personnel to park, such that all members of the public shared the same risk of potential injury in the location of claimant’s accident.
Two dissenting judges disagreed and would have reversed the Board Panel’s decision, stating they believed these facts established a compensable claim as a matter of law under the Court’s prior decision inThatcher v. Crouse-Irving Memorial Hospital, 253 A.D.2d 990 (3d Dep’t 1998), leaving no discretion for the Board to find otherwise. Because two judges dissented in this decision, the claimant has an automatic right to appeal to New York State’s highest Appellate Court, the New York Court of Appeals. The claimant’s attorney has indicated he will likely perfect an appeal to the Court of Appeals. Assuming the claimant does so, a decision can be expected sometime next year on this case.
For questions about this decision, please contact our partner, Joseph DeCoursey, who litigated the case and wrote the appeals for the carrier.
Haven v. F & F Custom Construction Inc.
On 10/11/18, the Appellate Division decidedHaven v. F & F Custom Construction Inc. This decision reaffirms the Court’s holding inParody v. Old Dominion Freight Line, 157 A.D. 3d 1118 (2018), which we reported on in January 2018. Parody held that the Board may apply the medical evidence in the record to the schedule loss of use guidelines to determine its own schedule loss of use assessment even if that assessment differs from the schedule loss of use opinions given by the doctors in the record. This is now the second decision in which the Court has applied this rule, confirming thatParody was not an anomaly. These decisions can be used by our clients to their benefit in those cases where a claimant’s physician gives a clearly erroneous SLU opinion under the Board’s Impairment Guidelines. For example, if a physician opines an SLU higher than that contemplated by the tables in the Impairment Guidelines, the carrier could simply argue for the correct SLU finding under the Impairment Guidelines, using the physician’s own range of motion findings instead of obtaining an IME. These decisions allow the WCLJ to find a SLU supported by the record instead of being stuck with the ultimate SLU opined by the physician.
Clarification on Genduso Decision
Last month we reported on the Genduso decision from the Appellate Division, Third Department. We received some comments and questions about our article, specifically on whether we felt the case was wrongly decided. Our answer is, simply put, no. The case is a benefit to employers and carriers and we feel it was correctly decided. The Board and Appellate Decision inGenduso allowed the carrier to credit prior schedules for loss of use of a leg (SLU) against a new leg SLU. Although we noted in our headline that the Board was allowing a carrier to credit a prior ankle injury against a new leg SLU, that prior ankle SLU was never awarded as a foot SLU, instead the claimant received a leg SLU which contemplated his injuries to the ankle. The Court’s decisions allowing a carrier to credit a prior leg SLU against a new leg SLU is not unusual in current practice.
However, we believe that the Court’s statement that “[n]either the statute nor the Board’s guidelines list the ankle or knee as body parts lending themselves to separate SLU awards” is incorrect because the Board’s Impairment Guidelines for determining SLU provide separate schedule loss of use calculations for injuries involving knees and feet. Ankle injuries are generally analyzed as foot schedule loss of use awards rather than leg awards. As such, the Court’s statement suggests a misreading of the Board’s Impairment Guidelines.
Virtual Hearings Now Available in All Districts except Queens, Newburgh, and Allegany
The Board’s virtual hearing system is nearly available Statewide, with only 3 hearing sites (Queens, Newburgh, and Allegany) not yet active. The system continues to be met with mixed reviews by participants, but it is clearly here to stay. Hamberger and Weiss LLP is available to represent our clients at a virtual hearing where virtual hearings are available.
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