Governor Baker’s Opioid Bill contains Provision affecting Workers’ Compensation benefits

While the overall intention of Governor Baker’s opioid bill appears to be positive for those in Massachusetts dealing with chronic pain and opioid dependency, it contains a section that would be harmful to injured workers who rely on Massachusetts’ workers’ compensation insurance to pay for their prescription medication.  Section 39 of the Governor’s opioid bill would establish drug formularies in all workers’ compensation cases (not just those involving the prescription and use of opioids) and for all medications.  Section 39 of House Bill No. H-4033 states:

SECTION 39. Chapter 152 of the General Laws is hereby amended by inserting after the following section:

             Section 13 ½. The department shall establish a formulary of clinically appropriate medications, including opioids and related medications, and shall promulgate regulations for the administration of this formulary.  In establishing the formulary, the department shall consult with the health care services board and the drug formulary commission established in section 13 of chapter 17 of the General Laws.  The formulary shall be based on well-documented, evidence-based methodology, and the department shall include as part of the formulary a complete list of medications that are approved for payment under this chapter, and any specific payment, prescribing, or dispensing controls associated with the drugs on the list.  The department shall review and update, if necessary, the formulary at least once every 2 years.

             The use of drug formularies in workers’ compensation systems has been proposed and rejected in many other states.  This creating of drug formularies is being pushed by the insurance industry in order to save costs for the insurance industry, but being disguised as an effort to limit opioid use by injured workers.  Opponents of the use of drug formularies have cited to the following facts in support of their position:

  • Drug formularies used for workers’ compensation injuries require specific authorization to disperse certain drugs as dictated by the workers’ compensation insurance company.
  • Drug formularies in workers’ compensation are highly controversial and have been rejected in several states as inhibiting the ability of workers to have access to medical care in that insurance companies can dictate and control what drugs would be paid for and what drugs would not. Drug formularies have been actively opposed and successfully defeated in several jurisdictions including Georgia, Louisiana, Pennsylvania.
  • A drug formulary would be applicable to every medication prescribed for injured workers in Massachusetts regardless of injury or condition or the treating doctor’s diagnosis. This means that insurance companies could actually overrule treating doctors and deny treatment prescribed by the injured worker’s physicians.
  • Adoption of a drug formulary will impact injured workers by preventing injured workers from receiving all medications not simply pain management medications.
  • Massachusetts already has utilization review, visitation reporting requirements, diversion programs, and education of physicians in place and working.
  • Drug formularies could prevent injured workers from receiving any types of new medications that are on the market or alternative medications that provide beneficial relief.
  • The main reason drug formularies are popular wit the business community and the insurance industry is cost savings to the insurance industry and business community.
  • Proponents of a Massachusetts’ workers’ compensation formulary claim that this will help fight the opioid epidemic, but it won’t. Drug formularies are driven by cost more than any other factor and it is the low cost of many opioids that contribute to an opioid crisis.
  • Drug formularies will result in a shifting of costs from the workers’ compensation system to other types of health insurance including Medicare and Medicaid.
Justia Lawyer Rating
Contact Information