3 Lawmakers Changed Votes on Formulary, but Governor's Signature No Sure Thing

Wednesday, April 18, 2018 | 0

The battle for a drug formulary now shifts to the Pennsylvania governor's office, and perhaps the Bureau of Workers' Compensation, after supporters mustered just enough votes this week to pass the hotly debated measure.

SB 936 passed the House Monday night with the minimum number of votes needed, 101-92, after three Republicans who voted against it in February changed their minds and supported it at the last minute, a vote tally shows. 

"They left the board open for 15 minutes because they didn't have enough votes, and the House majority leader and the whip walked the aisles," said Larry Chaban, a Pennsylvania claimants' attorney who has followed the proceedings closely.

Heartily supported by insurance and business interests but staunchly opposed by labor groups and claimants' attorneys, the bill now goes to Gov. Tom Wolf. His office did not return requests for comment Tuesday, and his position on a formulary is not crystal-clear, supporters and opponents said.

"I don't see how the governor can veto it, if he himself has supported a similar formulary plan for the Medicaid program," said Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform, an ardent supporter of SB 936.

Wolf, who faces re-election this year, has come out in favor of measures to curb the opioid addiction crisis that has taken a toll on Pennsylvania and most other states. The formulary bill would be a big step in that direction by limiting injured workers' access to opioid prescriptions, supporters say.

But Wolf is a Democrat, and most of the House members who voted against the bill Monday are Democrats. Wolf also has accepted thousands of dollars in campaign contributions from a political action committee that was funded in large part by law firms that opposed the bill and which have been at the heart of the debate over workers' compensation medical costs, news reports have shown. 

One such law firm established its own compounding pharmacy for injured workers, which has charged more than $4,000 for a single tube of ointment, something critics like Schroder have repeatedly pointed to as a prime example of why a formulary is so needed.

Even if the governor signs the bill into law, the fight is far from over.

The bill would take effect 60 days after the governor signs. It would require the state's Bureau of Workers' Compensation, part of the Department of Labor and Industry, to hold at least one hearing before selecting a "nationally recognized, evidence-based" formulary.

"There's obviously going to be a lot of lobbying with regard to that, and how long that takes, who knows?" said Chaban.

Several states in recent years have adopted workers' compensation formularies based on the Official Disability Guidelines, published by MCG Health, or the American College of Occupational Medicine's formulary, published by the Reed Group.

Supporters of Pennsylvania's bill have used Ohio and Texas as examples of systems that have cut medication costs and curbed opioid use by injured workers. Texas has seen an 80% drop in the prescribing of non-preferred drugs restricted by the formulary, according to a study done by Brian Allen and Shelley Callahan of Mitchell International.

Ohio has witnessed a 59% reduction in opioid dependence, the study says.

"Gov. Wolf has been engaged in an active and effective campaign to reduce the use of opioids in Pennsylvania," Allen said in a statement Tuesday. "We hope he will view this bill as another strategic piece in that puzzle and sign the legislation."

Monday night's vote in the House was the second go-around for SB 936. After it passed the state Senate last fall, the measure failed in the House on a tie vote, 98-98, in February. It took a motion to reconsider, which passed 98-96, to put it back on the floor Monday night.  

Both sides agreed that supporters picked the right moment to usher the bill through the chamber. Five Democratic House members who voted against the measure in February were absent from the Capitol on Monday, the votes show. And two Republicans who were absent in February were on hand Monday to vote in favor. 

Still, the last-minute persuasion was needed to carry the bill across the threshold, supporters said.

"We really have to give a lot of credit and thanks to the majority leader and the whip for the work they did on the floor," said Schroder, who has campaigned for the formulary for months.

The three Republicans who switched their votes were Brian Ellis, Harry Lewis and Tarah Toohil, according to the vote count on the General Assembly's web page. The three did not return requests for comment Tuesday.

The legislative maneuvering brought out strong feelings on both sides of the issue, with labor groups and claimants' attorneys saying the formulary is unnecessary, and is an affront to injured workers and their doctors.

"This is an effort by insurance companies to victimize people who've already been the victim of a work injury," said Irwin Aronson, general counsel for the Pennsylvania State Building and Construction Trades Council, affiliated with the AFL-CIO. 

The bill also would authorize the Bureau of Workers' Compensation to assign an accredited utilization review panel and peer-review panel, at an insurers' request, to examine compliance with the formulary. 

But Aronson said insurers have been able to request utilization reviews since passage of a 1996 law.

"It's been on the books for 22 years," he said. "This is a legislative solution in search of a problem."

It was insurers, Aronson said, who in many cases promoted opioids in the first place, because the costs of medication are generally lower than surgery or long-term therapy.

Insurers and business groups said the bill is vital to the state's workers' compensation system.

“This is an excellent bill because it will address addiction, which often begins when a worker is injured and is prescribed opioids,” Kevin Shivers, Pennsylvania director for the National Federation of Independent Businesses, said in a statement Tuesday. “It will also put the brakes on abuse in the workers’ comp system by greedy lawyers or doctors who invest in pharmacies, and then charge exorbitant prices for untested medications.”

The measure, sponsored by Sen. Don White, R-Indiana, would also require the Pennsylvania Compensation Rating Bureau to calculate cost savings resulting from the formulary. That would translate into an "immediate reduction" in workers' compensation rates, equal to the savings, the bill reads.

“That helps small businesses burdened with high insurance costs," Shivers said.