PRACTICE TIP: The WCB has now firmly established that an injured worker can freely obtain prescription medications outside of a carrier’s approved pharmacy network, therefore, C-8.1B objections will routinely be found in favor of the provider at the carrier’s approved network rate pending legislative revisions or Appellate review.
In the case of Towne Nursing Staff, Inc., WCB G2809093 (11/9/22), the WCB addressed the issue of the “remedy” available to a carrier in the event that an injured worker routinely fills prescriptions outside of the carrier’s approved pharmacy network even after the claimant has received notice of the existence of the network. The “remedy” fashioned by the WCB permits an injured worker to fill the first prescription outside of the network at the pharmacy fee schedule rate and all subsequent prescriptions provided by an out of network pharmacy at the carrier’s negotiated network rate. Thus, there is no mechanism by which the carrier can drive volume to the in-network pharmacies who have negotiated lower rates premised upon the anticipated increased volume. The carrier and self-insured employer’s ability to maintain low network rates will be undermined by the carrier’s inability to provide volume to its network providers.
The logic of the “remedy” fashioned in Towne Nursing Staff, Inc., supra, appears to be at odds with the intent of the legislature upon authorizing carriers to establish a pharmacy network. Economics 101 instructs that the reduced rates are a product of the provider’s anticipated increased volume. The “remedy” fashioned by the Board will undercut the carrier’s ability to meet the provider’s anticipated volume. Thus, the bargaining position of the carriers will be undercut once rates are renegotiated. This issue calls for a statutory enactment establishing a remedy which will permit carriers and self-insured employers to drive volume to approved pharmacies. We recommend that the first prescription outside of the network be covered with no obligation to pay for prescriptions outside of the network thereafter.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
