Proposed Work Comp Drug Formulary Bill Passes Senate and Moves to the House

Posted by Dean Blackaby | Feb 26, 2015 | 0 Comments

Rosendale
Matthew Rosendale (R-Glendive)

 SB 292, creating a workers' compensation drug formulary, barely scraped through the Senate Business, Labor and Economic Affairs committee on a 6-4 vote but ultimately passed 3rd reading on the Senate floor (29-21) on February 25th.  As a result, the bill was transmitted to the House for consideration.

This bill, discussed in a prior Move.Solve. blog entry, is part of a national trend to curb what is described as opioid abuse in the workers' compensation system.

At the hearing, proponents included Kevin Braun of the Montana State Fund who testified that the formulary would constitute step forward in addressing the cost problem associated with medications.  He indicated that other states had utilized formularies and had seen significant reduction in costs without sacrificing the quality of care.  Also standing in favor of the proposal were the Motor Carriers of Montana and the Montana Self-Insured Group. 

An additional proponent testifying was Ken Eichler, Director of Regulatory Affairs for the Work Loss Data Insititute.  WLDI describes itself as an independent medical database development company.  Based in Encinitas, California, WLDI is best known as the publisher of the "ODG" or the "Official Disability Guidelines."  WLDI touts that its ODG "product" has been adopted by twenty states.  It's significant to note that Montana is not one of those states however.

During testimony, Eichler cited a New York Times study identifying that the cost of the average work comp claim without long-acting opioids being prescribed was $13,000.  When long-acting opioids were introduced to the claim, the cost rose to $117,000. Eichler indicated that the formulary does not limit access as the claimants could pay for medication out of pocket.  The formulary would also provide for review of prescriptions exceeding guidelines and included a morphine equivalent "calculator" to allow parties to monitor the total dosages.  On a couple of occasions, Eichler referenced that the formulary would prevent opioids from ending up in the hands of family members who then overdose.

Standing in opposition was Lonnie Olson of the Montana Trial Lawyers Association (MTLA).  Olson testified that the formulary would have the impact of limiting access to medical treatment prescribed by the treating physician and clearly interefered with the doctor/patient relationship.  Coming on the heals of the 2011 changes allowing insurers to designate treating physicians, Olson said the formulary put a governmental agency (Department of Labor and Industry) squarely inside an already crowded doctor/patient relationship.  He was also critical of the bill as lacking detail as to how frequently the formulary could be modified and just how that would occur.  His concern was that new drugs to the market would not find their way into the formulary and thus, become unavailable to injured workers.

Olson also had concerns about the dispute resolution process.  If the dispute resolution adopted mirrored that in place for the current Montana Utilization and Treatment Guidelines, it would involve an Independent Medical Review (IMR) by the Department of Labor and Industry before allowing the claimant to proceed to mediation and possibly the Workers' Compensation Court.  While the turn around time on the IMR was discussed in committee, the significant amount of time it takes to mediate and file a petition for hearing was not addressed.  In the context of a opoiod prescription dispute, that time could be devastating.

With passage, SB 292 moves on to the House for consideration.

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.

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