The closed formulary bill for workers’ comp (SB256 by Senator Martiny) was voluntarily deferred in the Senate Health and Welfare Committee on Wednesday, May 6th. Senator Martiny volunteered to bring his measure before Committee first, and immediately explained his new perspective on the legislation: “I have always prided myself in my twenty-plus years in this building as a consensus builder,” he said. “It appears that I have built a consensus – nobody likes this bill.”
The measure had been unanimously opposed when it went before the Governor’s Workers’ Compensation Advisory Council (WCAC) in both its original and re-drafted forms.
Troy Prevot, WCAC member and Administrator of LCTA, explained that he agreed with the deferral, as the bill lacked necessary clarity.
“The bill without amendments lacked a guarantee of evidence-based medicine as a backbone of the formulary,” Prevot said. “That standard [of evidence-based medicine] is across the board for states that have adopted formularies. It can’t be just a list of drugs, as there would be very little [clinical] basis to add or control access. A formulary is a good tool, but it has to be done right or it will lead to more confusion and potential problems.”
Greg Hubachek, another WCAC member and claimant attorney with Workers’ Compensation LLC, took issue with the drafting of the bill, calling it “clandestine.” He explained further, “The idea behind the creation of the WCAC was to provide the public with a forum to discuss and create proposed revisions to the Louisiana Workers’ Compensation Act and, in turn, report to the Legislature…if the drafters would have presented SB256 to the WCAC and permitted open review and discussion of the bill, then [it] would have had a greater chance at success.”
Both Prevot and Hubachek see the potential benefits that a formulary could confer upon Louisiana’s system, but stress the need for a clinical focus. “The Medical Treatment Schedule [or, Medical Treatment Guidelines] should be the starting point for proposed revisions to statutes and hearing rules pertaining to workers’ compensation medical benefits,” Hubachek said. “In my opinion, we should first permit the Medical Advisory Council [MAC] to try to create a specific pharmacy formulary and associated guidelines, in the same manner that the MAC created the MTS.”
Additionally, from Prevot’s insurer/employer perspective, the formulary would have to make specific allowances for employer choice of pharmacy, which has been supported by recent jurisprudence. “Insurers and employer groups want to preserve the ability to direct where claimants get their drugs [in order] to control pricing,” he explained. “The courts have ruled several times that, as long as there is no difficulty in getting the drugs, employers can direct [that] care. As the only opportunity we have to keep costs down, we wanted to preserve that [within the bill’s language].”
Wayne Fontana, a local workers’ comp defense attorney with Roedel Parsons, who has also worked on workers’ comp legislation for decades, followed the same track as Prevot regarding the bill’s vague language. Identifying the formulary issue as “an obvious subject for future consideration,” Fontana noted that the conflict falls in an interpretive context, which the new law would need to clarify. “Current caselaw has properly recognized employer choice [of pharmacy],” he said. “While Section 1121 of the Louisiana Workers’ Compensation Act [dictates] an employee’s choice of physician, the jurisprudence has correctly restricted that right to the choice of doctor [only].”
Though the bill is effectively dead for this session, both the labor and employer/insurer sides of the WCAC are committed to finding a solution, with Prevot and Hubachek forming a task force at the forefront of a bipartisan effort.
“I have committed to work with Troy Prevot to develop a pharmacy formulary and associated guidelines that will improve the delivery of medical treatment to the benefit of both employers and their injured employees,” Hubachek confirmed. “Over the course of the next nine months, the WCAC’s pharmacy formulary task force will invite the participation of healthcare providers, employer representatives, insurer representatives, employee representatives, and interested members of the general public. In this way, proposed revisions can be created in an equitable and transparent process.”
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