Greetings, back in February of this year, the 1st DCA struck down the FL Division of WC’s rule that prevented carriers from denying dispensing by practitioners (attached case). The court ruled that a physician is not a pharmacy/pharmacist, and we do not have to allow them to dispense medications (but did not ban it if the carrier did want to allow it in certain situations).
Well, I have had several questions in the last week about what appears to be a spreading “work-around” by some of the physician groups. It seems that some providers have partnered, contracted or created a business relationship with mail-in pharmacies. My understanding of the logistics as it is playing out is the provider prescribes the medication, and then either helps or actually calls in the medication to the mail-order pharmacy, who in turn then delivered to the claimant’s home.
This is all new and our firm is working on possible ways to address this, especially if it is a situation where the provider is abusing the process or the mail-order pharmacy is drastically overcharging.
The statute is very clear that the claimant does get to select the pharmacy, and a mail-order pharmacy would likely count:
440.13(3) (j) Notwithstanding anything in this chapter to the contrary, a sick or injured employee shall be entitled, at all times, to free, full, and absolute choice in the selection of the pharmacy or pharmacist dispensing and filling prescriptions for medicines required under this chapter. It is expressly forbidden for the department, an employer, or a carrier, or any agent or representative of the department, an employer, or a carrier, to select the pharmacy or pharmacist which the sick or injured employee must use; condition coverage or payment on the basis of the pharmacy or pharmacist utilized; or to otherwise interfere in the selection by the sick or injured employee of a pharmacy or pharmacist.
In some cases, if the provider is not overprescribing and the pharmacy is not overcharging, there may be no issue. It shields the E/C from the added liability of accidents on the way to pick up medications, it saves on medical mileage and it also prevents any hiccups at the pharmacy counter in getting the script filled. However, there were bad apples when physicians were dispensing and we may see those bad actors come around again under this new “work around”.
Some initial thoughts are in some cases, if the claimant is not yet at MMI, we could look to schedule an IME and potentially change providers:
440.13(2)(d) The carrier has the right to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation.
This can be costly and unless there is a PFB pending, we cannot compel the claimant’s attendance at an IME. Plus we may not want to burn our one IME on this issue (you can always get an updated IME with the same doctor later in the case if new issues arise).
I am not sure how long the mail order process is taking , but we can certainly speak with the clmt and encourage them to go get the script filled that same day rather than wait, and remind them they do get paid mileage for the pharmacy trip.
There are arguments to be made that the carrier must have the chance to review any non-emergency treatment for medical necessity and provide authorization first before the medications are sent to the claimant.
This is all a work in progress and we will have to see how it develops and what options we have to combat those that abuse the system.
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Sincerely,
Morgan Indek | Managing Partner