Regular Session 2017-2018 Senate Bill 0936 P.N. 1281

PRINTER'S NO. 1281

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

936

Session of

2017

INTRODUCED BY WHITE, SCARNATI, REGAN, ARGALL, McGARRIGLE,

STEFANO, HUTCHINSON, RESCHENTHALER, AUMENT, YAW, MENSCH,

KILLION, LANGERHOLC AND EICHELBERGER, OCTOBER 20, 2017

REFERRED TO LABOR AND INDUSTRY, OCTOBER 20, 2017

AN ACT

Amending the act of June 2, 1915 (P.L.736, No.338), entitled "An

act defining the liability of an employer to pay damages for

injuries received by an employe in the course of employment;

establishing an elective schedule of compensation; providing

procedure for the determination of liability and compensation

thereunder; and prescribing penalties," in liability and

compensation, further providing for prescription drugs and

the treatment of work-related injuries; and, in procedure,

further providing for peer review.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 306(f.1)(6)(ii) of the act of June 2,

1915 (P.L.736, No.338), known as the Workers' Compensation Act,

is amended, paragraph (3)(vi) is amended by adding a subclause

and paragraph (6) is amended by adding a subparagraph to read:

Section 306. The following schedule of compensation is

hereby established:

* * *

(f.1) * * *

(3) * * *

(vi) * * *

(J) The department shall select a nationally recognized,

evidence-based prescription drug formulary appropriate for

resolving issues related to drugs prescribed for or related to

the treatment of work-related injuries, including, but not

limited to, the type, dosage and duration of prescriptions. The

following shall apply:

(I) Within thirty (30) days of the effective date of this

subclause, the department shall solicit public comments

regarding the selection of a prescription drug formulary under

this provision. The public comment period shall be ninety (90)

days. During the public comment period, the department shall

conduct at least one public hearing on the selection of a drug

formulary. The department shall publish notice of the public

comment period and public hearings in the Pennsylvania Bulletin.

(II) Within thirty (30) days after close of the public

comment period under subprovision (I), the department shall

publish notice of the prescription drug formulary selected in

the Pennsylvania Bulletin. The prescription drug formulary shall

take effect one hundred eighty (180) days after the publication

required by this subprovision.

(III) In selecting a nationally recognized, evidence-based

prescription drug formulary for adoption, the department shall

consider the following factors:

(a) Whether the formulary focuses on medical treatment

specific to workers' compensation.

(b) Whether the basis for the formulary is readily apparent

and publicly available.

management of opioid medications.

(d) Whether the formulary appropriately limits both duration

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and dosage of prescriptions.

(e) The cost of implementation of the formulary.

(IV) The department shall annually review updates issued by

the formulary publisher to the selected formulary and by

November 1 each year shall solicit public comments regarding the

updates proposed for adoption by publishing notice of the

proposed updates and a public comment period in the Pennsylvania

Bulletin. The public comment period for updates to the adopted

formulary shall be at least twenty (20) days, but not more than

than thirty (30) days. Within thirty (30) days after the close

of the public comment period, the department shall publish

notice of the adopted updates in the Pennsylvania Bulletin. The

published updates shall take effect thirty (30) days after the

publication required by this subprovision.

(V) The department shall ensure that the current

prescription drug formulary is available through its publicly

accessible Internet website for reference by physicians and the

general public.

(VI) The prescription of drugs that is consistent with or

recommended by the prescription drug formulary shall be

considered reasonable and necessary for the purposes of

paragraph (6). Except in cases of medical necessity under

subprovision (VII), the prescription of drugs that is not

consistent with or recommended by the prescription drug

formulary selected by the department shall not be considered

reasonable and necessary for the purposes of paragraph (6).

(VII) The prescription of drugs that is not consistent with

or recommended by the prescription drug formulary may only be

considered reasonable and necessary for the purposes of

paragraph (6) if the treating health care provider has submitted

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documentation of medical necessity, including evidence-based

analysis of the reason for the exception, to the insurer or

self-insured employer at the time of the initial prescription.

The documentation of medical necessity shall be on a form

prescribed by the department.

(VIII) Within eighteen (18) calendar months following the

effective date of the prescription drug formulary selected under

this subclause, the Pennsylvania Compensation Ratings Bureau

shall calculate the savings achieved through the implementation

of the prescription drug formulary. For the calendar year

immediately following this calculation, the amount of savings

shall be used to provide an immediate reduction in rates, equal

to the savings, applicable to employers' workers' compensation

policies.

* * *

(6) Except in those cases in which a workers' compensation

judge asks for an opinion from peer review under section 420,

disputes as to reasonableness or necessity of treatment by a

health care provider shall be resolved in accordance with the

following provisions:

* * *

(ii) The department shall assign a request for utilization

review to a utilization review organization at random. The

utilization review organization shall issue a written report of

its findings and conclusions within the time frame required by

the nationally recognized accreditation standards adopted by the

department under subparagraph (v). In no case shall the report

of findings and conclusions be issued more than thirty (30) days

after the receipt of a request.

* * *

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(v) The department shall approve only those utilization

review organizations that it determines have obtained

certification or accreditation by a nationally recognized

organization with certification or accreditation standards

appropriate for resolving utilization issues for workers'

compensation programs. The following shall apply:

(A) Within thirty (30) days of the effective date of this

clause, the department shall publish notice in the Pennsylvania

Bulletin of the specific nationally recognized certification or

accreditation that will be required in order to be approved as a

utilization review organization.

(B) Upon publication under subclause (A), an entity without

the appropriate certification or accreditation may not engage in

utilization review under this act, except that an entity

approved as a utilization review organization by the department

prior to the effective date of this clause may continue to

engage in utilization review for up to eighteen (18) calendar

months after the publication of notice under subclause (A). If

the department determines that an entity approved as a

utilization review organization by the department prior to the

effective date of this clause is actively attempting to achieve

the selected certification or accreditation, the entity shall

not be required to apply for reauthorization during the

eighteen-month period. A utilization review organization shall

adhere to the review standards of the selected nationally

recognized certification or accreditation organization for all

utilization review where the date of the injury is at least

eighteen (18) calendar months after the publication of notice

under subclause (A).

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selected nationally recognized certification or accreditation

organization to provide for the certification or accreditation

process for utilization review organizations and employes of

utilization review organizations, including the costs of any

audits required for the certification or accreditation process.

The department shall make reasonable attempts to negotiate a

reduction of the cost of the certification or accreditation

process. An entity approved as a utilization review organization

by the department prior to the effective date of this clause,

including a surviving association that results from the merger

of two or more utilization review organizations under 15 Pa.C.S.

Ch. 3 Subch. C (relating to merger), shall be eligible to

participate in the initial certification or accreditation

process at no cost to the entity. After January 1, 2020, an

entity approved as a utilization review organization shall be

eligible to participate in the process to renew its

certification or accreditation at no cost to the entity. An

entity for which the department has incurred costs under this

subclause shall reimburse the department for its costs related

to the most recent certification or accreditation for the

entity, if the entity does not successfully obtain the initial

or renewal certification or accreditation. The actual amount of

the cost to the department for the certification or

accreditation process under this subclause, not to exceed one

million five-hundred thousand dollars ($1,500,000) annually,

shall be transferred to the department from the Workers'

Compensation Administration Fund.

(D) The department shall conduct outreach to all entities

approved as utilization review organizations by the department

prior to the effective date of this clause. The outreach shall

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include providing each entity with notice of the requirements of

this clause, guidance on how this clause will be enforced by the

department and information on how the entity may participate in

the required certification or accreditation process at no cost

under subclause (C).

* * *

Section 2. Section 420 of the act is amended to read:

Section 420. (a) The board, the department or a workers'

compensation judge, if it or he deem it necessary, may, of its

or his own motion, either before, during, or after any hearing,

make or cause to be made an investigation of the facts set forth

in the petition or answer or facts pertinent in any injury under

this act. The board, department or workers' compensation judge

may appoint one or more impartial physicians or surgeons to

examine the injuries of the plaintiff and report thereon, or may

employ the services of such other experts as shall appear

necessary to ascertain the facts. The workers' compensation

judge when necessary or appropriate or upon request of a party

in order to rule on requests for review filed under section

306(f.1), or under other provisions of this act, may ask for an

opinion from peer review about the reasonableness or necessity

[or frequency] of treatment under section 306(f.1). The peer

review report or the peer report of any physician, surgeon, or

expert appointed by the department or by a workers' compensation

judge, including the report of a peer review organization, shall

be filed with the board or workers' compensation judge, as the

case may be, and shall be a part of the record and open to

inspection as such. The workers' compensation judge shall

consider the report as evidence but shall not be bound by such

report.

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(b) The board or workers' compensation judge, as the case

may be, shall fix the compensation of such physicians, surgeons,

and experts, and other peer review organizations which, when so

fixed, shall be paid out of the Workmen's Compensation

Administration Fund.

organizations used under this section shall comply with the

requirements established under section 306(f.1)(6).

Section 3. Within eight months of the effective date of this

act, the Department of Labor and Industry shall propose

regulations to implement the amendment or addition of section

306(f.1)(3)(vi)(J) and (6)(ii) and (v) of the act.

Section 4. This act shall take effect in 60 days.

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