Pennsylvania’s Governor Wolfe Vetoes Workers’ Compensation Formulary Bill

Following in the footsteps of Texas, Ohio, and various other states, Pennsylvania’s legislature attempted to enact a drug formulary by amending the current Workers’ Compensation Act with Senate Bill 936. While passing in the House and Senate, Governor Tom Wolfe vetoed this proposed amendment.

Introduced on October 20, 2017 by various representatives, Bill 936 proposed that the department should select a nationally recognized, evidence-based prescription drug formulary for resolving issues related to drugs prescribed for or related to the treatment of work-related injuries. Expressly outlining a timeline in which comments would be taken, public notice of the formulary published, and when the final formulary would effect, Bill 936 also outlined the requirements to be considered when creating the prescription drug formulary.

After considerable debate and re-drafting, the bill was voted into the House and Senate on April 17, 2018. As indicated above, Governor Wolf then vetoed on April 27, 2018. Per a letter drafted by the Governor on May 27, 2018, Governor Wolfe noted “The implementation of a drug formulary as prescribed by this legislation will not improve overall health outcomes for Pennsylvania’s injured workers and will not stem the tide of the opioid crisis…many opioid medications are among the lease costly prescription medications on the market. Since the bill’s drug formulary is designed to steer physicians toward prescribing less costly drugs, it will not likely accomplish the often-stated objective of the bill’s promotors – curbing the opioid over-prescription.”

Interestingly, Governor Wolf’s rationale in vetoing the Bill was predicated on the fact that the formulary is aimed at cost-reduction and the limitation of opioids. However, per the language of the Bill itself this formulary was to be created after research and based upon evidence based medicine (which would most likely include the CDC’s recent recommendations regarding opioids), would be open for public comments which would arguably include injured workers’ and their advocacy groups, and would be reviewed yearly by the department based upon public comments received in November of each year. Admittedly, the Bill does state that the Pennsylvania Compensation Ratings Bureau shall calculate the savings achieved through the implementation of the prescription drug formulary, the assumption that the formulary is solely created for the cost-reduction of prescriptions in Workers Compensation claims appears to be faulty.

To further confuse the issue, Governor Wolf announced he signed an executive order aimed at curbing injured workers’ opioid prescriptions. Essentially mimicking much of the original Bill 936 directives, it is questionable whether such an order will be enforceable as state agencies do not have legal authority to limit prescription drugs on their own.

At the end of the day, Pennsylvania’s drug formulary has been tabled. However, several other states (i.e. Indiana and Massachusetts) have proposed legislation in place and are waiting on final voting. Although there is not much in the way of formal research on the benefits of drug formularies, the pioneer states like Texas, Ohio, and California have been implemented for a significant period of time and more empirical evidence of the benefits of such programs can be expected. Furthermore, this methodology is becoming increasingly more attractive to states in light of increasing insurance premiums and the opioid crisis. We at Gordon & Rees will continue to monitor the current legislation and report on any new developments.



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