I was able to attend Monday's public hearing at the California Division of Workers' Compensation headquarters in Oakland about its proposed work comp drug formulary. The large auditorium was about half full, with lots of hugs and handshakes, as many of us have convened on this subject now for two-plus years.

Mark Pew

George Parisotto started promptly at 10 a.m. and the hearing was over within an hour. Some of that was because speakers were limited to three minutes each; some because there was no need to elaborate on their written comments; some because there was no follow-up comments from the DWC representatives; but mostly because only 14 attendees (including myself) provided oral comments.

Reporter Greg Jones of WorkCompCentral was in attendance and posted an article from the event. While it's fresh on my mind, I thought it might be helpful to document my thoughts.

The 14 who spoke represented the full spectrum of stakeholders — employers, labor, pharmacy benefit managers (PBM), physicians, applicant attorneys, defense attorneys, utilization review and managed care. Many other stakeholders were present, so I'm certain every single category of stakeholder will ultimately be represented in the comments to be reviewed by the DWC.

Many subjects were brought up: perioperative fill needs to be further defined; the definition of compounds needs to be strengthened; the transition process for "legacy" claims needs to be more specific, with, preferably, a deadline; National Drug Code specificity or guidance needs to be provided; an incorrect assumption that prescribers are already requesting pre-authorization for drugs; the list of preferred/non-preferred drugs needs to be edited; an exclusion is needed for a pharmacy benefit network similar to what's defined for medical provider network; the removal of the "unilateral" sentence in 9792.27.3; a concern about more, not less, friction costs and litigation; change pre-authorization to be not allowed (instead of just not required) for preferred drugs; and how retrospective review will likely cause PBM's to be stuck with the bill.

In addition, there were two recurring themes: 

• More education for all stakeholders, especially prescribers. Mentioned by half of the speakers, there is concern that not enough educational outreach on the implications of a drug formulary has been provided yet. Not that the DWC hasn't tried. Executive Medical Director Dr. Ray Meister has hosted at least two webinars through the Western Occupational and Environmental Medicine website on the subject. The DWC has created online training for how to use medical treatment utilization schedule. And lobbyists for physician groups have been part of the deliberation process since the summer of 2015. But more should be done prior to rollout.

Which leads to the second major theme:

• An implementation date of July 1 should be deferred for legacy claims. Nine of the 14 speakers mentioned that more time is needed for the stakeholders to implement what will eventually become the final rules, to better ensure a successful launch — especially since the rules are not yet final and it's entirely possible that a 15-day public comment period will ensue as further edits are made based on this round's public comments, inching ever closer to July 1.

I have been saying the same thing for a while, in "Wherefore Art Thou, Formulary?" (Feb. 28), "CA Formulary Update" (March 3) and "Cali-formulary" (March 27). And this was my sole comment Monday. With such a compressed time frame (now officially less than two months until July 1), so many moving parts (especially the never-been-done-before proprietary formulary that California chose) and so many potential unintended consequences (with not enough time to necessarily vet the potential outcomes), completeness trumps timeliness.

In fact, in my opinion, there is an argument that AB 1124's language allows for an implementation date other than July 1:

This bill would require the administrative director to establish a drug formulary, on or before July 1, 2017 ...

And

On or before July 1, 2017, the medical treatment utilization schedule adopted by the administrative director shall include a drug formulary using evidence-based medicine ...

While I'm not an attorney, I don't think "establish" and "include" necessarily has to also mean "implemented." In other words, if the rules are finalized by July 1 but the implementation date is — for example, Jan. 1, 2018 — then that could comply with the mandate of AB 1124. After all, the Legislature made an educated guess two years ago that July 1, 2017, would be ample time to "establish" a drug formulary. As it turns out, two years may not be enough time to also include commencement (i.e., implementation). 

The way I look at it, nobody failed in their duties if July 1 does not include implementation in regard to legacy claims. It’s a natural consequence of conducting a detailed, thorough, transparent, inclusive process of design that took longer than the guesstimate during the summer of 2015.

My final statement to the DWC Monday:

I’ve often made the comment that a bad formulary is worse than no formulary at all. I would adjust that a little bit and say a premature formulary is worse than no formulary at all.

Will the DWC accept the recommendation of a Jan. 1, 2018, implementation date from a broad consensus of stakeholders today? Only time will tell. But I’m confident that they heard clearly that we (and I mean everybody) are OK with an extension. There is too much at stake to get it wrong.

Mark Pew is a national speaker and author on chronic pain and appropriate treatment, as well as senior vice president of Prium, a medical managed care provider for the workers' compensation industry. This post is republished with permission from his Rx Professor blog.