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Board Issues Third Revision of Proposed Pharmacy Formulary and Regulations

The Board has released its third revision of the proposed pharmacy formulary regulations for public comment. Our readers may recall that we published a white paper with our summary and analysis of the original proposed formulary in February 2018 and the first revision of the proposed formulary and regulations in November 2018. The current revision of the formulary classifies prescriptions based primarily on the length of time that has passed from the date of injury. So-called "Phase A" drugs are those that may be prescribed and dispensed for up to a 30-day supply within the first 30 days following an accident or injury or until the carrier accepts the claim or the Board establishes a claim, whichever occurs sooner. "Phase B" drugs may be prescribed for up to a 90-day supply after 30 days following an accident or injury or when the carrier accepts the claim or when the Board establishes the claim, whichever occurs sooner.
"Phase B" drugs must also be prescribed when a body part or illness has been accepted (with or without admitting liability) or established in accordance with the Medical Treatment Guidelines. Some "Phase B" drugs are designated as "second-line drugs" and may be prescribed and dispensed following an unsuccessful trial of a first line drug per the "Phase B" portion of the formulary and the Board's Medical Treatment Guidelines.
Some drugs in the proposed formulary are listed as "perioperative" which means that the drug may be prescribed four days before through four days after surgery. There are also drugs marked with "special considerations" which may serve to either limit that drug to a seven-day supply (typically narcotics) or for a prescribed course of therapy (e.g., antibiotics).
As we noted in our prior analysis of the first revision of the formulary, the proposed regulations appeared to 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. In the current revision, Section 441.3 of the proposed regulations makes this clear, stating that the formulary "shall apply to prescriptions for accidents or injuries that are controverted by the insurance carrier or self-insured employer." Thus, carriers and employers will be expected to pay for prescriptions even when they are controverting the claim.
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. Carriers and employers are still only given 4 calendar days to approve, partially approve, or deny a Prior Authorization request. 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 Law Judge. There is no provision by which a carrier or self-insured employer can request review via adjudication.
The revised formulary curtails the prescription of narcotic medications by classifying all narcotics in the formulary as "special consideration" drugs limited to a single seven-day supply and the “perioperative” period. 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 4/17/19 State Register and comments on the revised proposal will be accepted until 5/17/19 via email to regulations@wcb.ny.gov. If you have any questions about the proposed formulary, please be sure to contact our partner, Renee Heitger.

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