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In wake of opioid crisis, debate follows bill to limit drug choices in workers' comp

By , - Last modified: November 17, 2017 at 7:49 AM
Would proposed legislation to curb the opioid crisis put an undue burden on patients?
Would proposed legislation to curb the opioid crisis put an undue burden on patients? - (Photo / )

Hoping to reduce costs in the worker's compensation system, state senators have advanced a bill to limit the drugs injured workers can use.

Impetus for the change comes, in part, from reports in the Philadelphia Inquirer detailing the financial connections between a law firm representing injured workers and a mail-order prescription service whose products included a compounded pain cream costing upwards of $4,000 a tube.

The bill, S.B. 936, introduced by Sen. Don White (R-Indiana), seeks to put the brakes on what some lawmakers deem “ethically questionable practices.”

The measure passed the Senate by a vote of 34-16 in late October and requires the Pennsylvania Department of Labor & Industry to adopt an evidence-based formulary for the Pennsylvania Workers’ Compensation program.

The legislation’s potential benefits include reducing the use of opioid painkillers, eliminating payments for “overpriced, unproven pain creams” and using peer review and utilization review organizations to ensure that practices are aligned more closely with Medicare, Medicaid and private-sector health insurance plans, according to a memo from White, as well as Sen. Mike Regan (R-Cumberland/York) and Senate President Pro Tempore Joe Scarnati (R-Jefferson).

“Addressing the opioid crisis facing our Commonwealth has been and continues to be a top priority for our Caucus. We are hopeful that the House of Representatives and Governor Tom Wolf will join us in support of this legislation as a crucial step to combat the opioid crisis,” the senators wrote in a press release.

Concerns raised

As the legislation moves to the House, some have expressed concerns that it puts an undue burden on patients, and it is unclear whether it will draw enough support to become law.

Steven Ryan, an attorney at Frommer D’Amico Anderson in Susquehanna Township, believes the legislation sets up too many roadblocks to care and interferes with the doctor-patient relationship.

For the first 90 days after they are injured on the job, workers needing medical care have to work with someone on a pre-approved panel of physicians, Ryan said. The panels, he added, were created as a way to control employer costs while maintaining individualized care.

He argued the legislation takes it one step further.

“Legislators are now trying to use formularies to take away that individualized care,” Ryan said. “Off-panel treatment is ideal for the injured worker, panel treatment is less ideal and formularies are the worst since they remove that individualization.”

He also raised concerns about access to alternative care. “If doctors aren’t permitted to prescribe opioids, what are the alternatives? There are too many unknowns,” Ryan said.

Another item that Ryan took issue with is the utilization review process, which he claimed is focused more on cost than on need. “Costs are with a spelled with a capital ‘C,’ while injured workers are a lower-case ‘i,’” he said.

Ryan also questioned the timing of the legislation.

“During the last six years, rates have been going down, so the focus should be on increasing individualized attention and funding for opioid alternatives,” he said. “Instead, they are going to use those savings to reduce rates for insurance companies and employers.”

Others view the legislation positively, especially for its potential to rein in opioid abuse.

“There were 33,000 opioid overdose deaths in 2015; two-thirds of them were from prescription medications,” said Suzanne Emmet, senior vice president of claims for Lancaster-based workers’ comp insurer Eastern Alliance Insurance Group, a subsidiary of ProAssurance, an insurer based in Birmingham, Ala.

Emmet described the potential adoption of a formulary as “bringing a level of objectivity to prescribing medication,” noting that opioids are the top-prescribed meds in workers’ comp cases.

She hopes Gov. Wolf, a Democrat, will back the legislation. “He is well aware that the opioid epidemic is a problem and we all need to take a step back and realize that Pennsylvania is in a position right now to be part of the solution,” she said.

Alex Halper, director of government affairs for the Pennsylvania Chamber of Business and Industry, also is hoping for a bipartisan effort toward tackling the issue, given the possibility of relieving the opioid problem.

“Addressing the epidemic is one area where both parties should be willing to work together due to the magnitude of the crisis,” he said, citing states whose politicians reached across the aisle to combat the problem.

“In 2015, California established a formulary introduced by a Democrat and signed by Gov. Jerry Brown and in New York a bill was signed by Gov. Andrew Cuomo, so there is a national precedent on this issue being approached in a bipartisan manner,” Halper said.

Halper worries the situation will continue to worsen without decisive action. “In a study of 25 states, Pennsylvania is ranked third in opioid use among injured workers, making it 78 percent higher than the median study state,” he said.

As for concerns about formularies failing patients, Halper points out that most prescriptions within their range are pre-approved.

“They can’t be rejected by an insurance company,” he said. Halper believes it will result in a more efficient system that adds checks and balances.

He also maintains that medications that are experimental, or non-FDA approved, may not be rejected outright. “There is a process for demonstrating why that prescription is helpful to the patient,” he said.

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