PRINTER'S NO. 1810
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1187
Session of
2018
INTRODUCED BY WHITE, SCARNATI, WARD, LANGERHOLC, REGAN, FOLMER,
BARTOLOTTA, VULAKOVICH, RESCHENTHALER, BROWNE, ARGALL,
KILLION, YAW, AUMENT AND STEFANO, JUNE 1, 2018
REFERRED TO LABOR AND INDUSTRY, JUNE 1, 2018
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)(3)(vi)(A) and (6)(ii) of the act
of June 2, 1915 (P.L.736, No.338), known as the Workers'
Compensation Act, are amended, paragraph (3)(vi) is amended by
adding subclauses and paragraph (6) is amended by adding a
subparagraph to read:
Section 306. The following schedule of compensation is
hereby established:
* * *
(f.1) * * *
(3) * * *
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(vi) (A) [The] Except as otherwise provided in subclause
(A.1), the reimbursement for prescription drugs and professional
pharmaceutical services shall be limited to one hundred ten per
centum of the average wholesale price (AWP) of the product,
calculated on a per unit basis, as of the date of dispensing.
(A.1) All prescriptions of compounded drugs, reimbursement
shall be limited to one hundred ten per centum of the average
wholesale price of each ingredient in the compounded drug, based
on the original manufacturers National Drug Code (NDC) number.
* * *
(J) The department, in consultation with the Department of
Health and the Department of Drug and Alcohol Programs and the
appropriate licensing boards under the Department of State,
shall develop evidence-based prescription guidelines appropriate
to the prescription of pain medication drugs prescribed for or
related to the treatment of work-related injuries, including,
but not limited to, the type, dosage and duration of
prescriptions, and specifically including opioid medications and
any other pain medications the departments recognize as
potentially addictive. The following shall apply:
(I) Within thirty (30) days of the effective date of this
subclause, the department shall solicit public comments
regarding the development of these prescription guidelines. The
public comment period shall be ninety (90) days, during which
time the department shall also hold at least three public
hearings. The department shall publish notice of the public
comment period and public hearings in the Pennsylvania Bulletin.
(II) Within thirty (30) days after the close of the public
comment period under subprovision (I), the department shall
publish these prescription guidelines in the Pennsylvania
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Bulletin. The prescription guidelines shall apply to any
prescription of pain medication drugs for or related to the
treatment of work-related injuries made after thirty (30) days
from the date of the publication.
(III) In developing the evidence-based prescription
guidelines, the department shall consider the following factors:
(a) That the guidelines assure injured workers access to
reliable, safe and effective prescription pain medications.
(b) That the guidelines appropriately limit both duration
and dosage of all prescribed pain medication drugs and include
consideration of treatment options beyond the prescription of
pain medication drugs.
(c) That the guidelines include measures to aid in the
management of all pain medications, specifically including
opioid medications.
(IV) The department shall receive, and shall at least
annually solicit through notice in the Pennsylvania Bulletin,
recommendations to revise its evidence-based prescription
guidelines for pain medications in furtherance of the factors in
subprovision (III). The department may revise these guidelines,
after consultation with the Department of Health and the
Department of Drug and Alcohol Programs and the appropriate
licensure boards under the Department of State. The department
shall publish notice of revisions to the guidelines in the
Pennsylvania Bulletin and the revisions shall take effect thirty
(30) days after the date of publication.
(V) The department shall ensure that these prescription
guidelines are available through the department's publicly
accessible Internet website for reference by physicians and the
general public.
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(VI) The prescription of drugs consistent with or
recommended by the department's evidence-based prescription
guidelines shall be considered reasonable and necessary for the
purposes of this subclause. The prescription of drugs not
consistent with or recommended by the department's evidence-
based prescription guidelines shall nonetheless be considered
reasonable and necessary for the purposes of this paragraph if
the prescribing physician has submitted documentation explaining
the medical necessity of the prescription to the insurer or
self-insured employer at the time of the initial prescription on
a form prescribed by the department. An insurer or self-insured
employer shall accept such prescription unless the prescription
is determined not to be reasonable and necessary by a
utilization review organization in accordance with paragraph
(6).
(K) The department, in consultation with the Department of
Health and the Department of Drug and Alcohol Programs and the
appropriate licensing boards under the Department of State,
shall develop a program for educating and explaining its
evidence-based prescription guidelines on or before the
effective date of the prescription guidelines. All workers
compensation judges and all utilization review organizations
shall participate in this program within sixty (60) days of the
effective date of these prescription guidelines. The department
shall offer the program to all providers at locations and times
it deems appropriate. To the extent the program is presented in
written or video form, the department shall make it available
through the department's publicly accessible Internet website.
* * *
(6) Except in those cases in which a workers' compensation
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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.
* * *
(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
subparagraph, 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
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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 subparagraph 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).
(C) The department shall enter an agreement with the
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
subparagraph, 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
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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 subparagraph. The outreach
shall include providing each entity with notice of the
requirements of this subparagraph, 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
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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.
(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.
(c) Peer review performed under this section and peer review
organizations used under this section shall comply with the
requirements established under section 306(f.1)(6).
Section 3. The Pennsylvania Compensation Rating Bureau shall
include in its annual loss cost filing to the Insurance
Department a calculation of any savings achieved through the
amendment of section 306(f.1) of the act and shall reduce the
filing to reflect those savings, subject to the Insurance
Department's review and approval.
Section 4. The Department of Labor and Industry shall submit
on or before January 1 of each year a report to the General
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Assembly on the impact of the amendment of section 306(f.1) of
the act on the prescription of pain medications to injured
workers, including any recommendations for changes in the
regulation of those prescriptions.
Section 5. This act shall take effect in 60 days.
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