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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 a white 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 to regulations@wcb.ny.gov. We will publish a white paper with a more extensive analysis and our recommendations for comments on the proposed regulations soon.

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