By Brian Allen, VP of Government Affairs
As 2018 was coming to a close, the Kentucky Department of Workers’ Claims published their final proposed drug formulary rule. Attached to the rule was a statement of emergency so the rule can have immediate effect while the final rule traverses the formal rulemaking process. Adoption of a drug formulary was a required provision of HB2, the comprehensive workers’ compensation reform bill that passed during the 2018 legislative session.
Since the legislation was signed, the Department has engaged in an extensive fact-finding mission that involved discussions with other states using drug formularies as well as outreach and working sessions with the various stakeholders.
The drug formulary will be effective on July 1, 2019, for claims with a date of injury occurring on January 1, 2019 or later. For claims with a date of injury prior to January 1, 2019, the formulary will be effective for any new medications on July 1, 2019, and effective on July 1, 2020, for refills of medications prescribed prior to July 1, 2019. This provides a one year transition period for existing claims that are currently prescribed drugs not recommended by the drug formulary.
The following are highlights of the various provisions of the proposed rule:
- Adopts the Official Disability Guidelines (ODG) drug formulary
- Allows for reimbursement for an initial 7-day fill of a “Y” medication in the first seven days following the date of injury, even if the carrier or employer ultimately denies liability for the claim
- Drugs with a “Y” status on the drug formulary may be prescribed without prior authorization provided they are related to and appropriate for a compensable injury
- Drugs with an “N” status on the drug formulary require prior authorization
- If an “N” drug is prescribed without prior authorization, the insurance carrier or employer must notify the prescriber within two days that prior authorization is required
- Drugs dispensed by a provider other than a pharmacist require prior authorization unless the drug meets the requirement of an initial fill
- Drugs not listed on the formulary require prior authorization
- Compounded medications require prior authorization even if all ingredients are “Y” drugs
- Medical providers are required to prescribe in accordance with the formulary unless they can provide sound medical evidence for deviating from the formulary
- Requests for prior authorization are subject to utilization review (UR) unless the employer waives UR
If a medication request is denied during the UR process, the medical provider may request a reconsideration, which includes a peer-to-peer conference with a physician of the same specialty
Reconsideration determinations are due within 10 days of the peer-to-peer conference
If the treating physician disagrees with the reconsideration determination, the physician may pursue a medical dispute in accordance with current law
A hearing on the proposed drug formulary rule is scheduled for 10:00am on February 22, 2019. Interested parties who would like to weigh in must register their intent to speak at the hearing no later than five workdays prior to the scheduled hearing date. If no one registers an intent to be heard, the hearing may be cancelled. Written comments on the rule may be submitted through February 28, 2019.
The complete text of the rule along with the hearing information can be found here.
The statement of emergency can be found here.
For questions regarding this alert or for information on other regulatory or legislation activities around the country, please feel free to contact Brian Allen, Vice President of Government Affairs, at Brian.Allen@mitchell.comor at 801.903.5754.