Combatting Escalating Prescription Costs in Virginia

The cost of prescription drugs continue to grow as a percentage of claim exposure. It is important that the Virginia adjuster be aware of the law in this area and strategies to mitigate this exposure for workers’ compensation claims.

Below are several tips for the Virginia adjuster.

1. Be Certain that the Presented Prescription is Related and for an Awarded Injury.

Be certain that the prescription is due to an injury covered by the entered medical Award. If not, it should likely be denied. Be mindful that all direct injuries from the work accident must generally be filed within two years of the accident pursuant to Va. Code § 65.2-601 or they are forever barred. Also be certain that the presented prescription is actually related to the accepted body part. www.drugs.com is an excellent resource to review whether a particular drug is appropriate for the injury at issue.

2. Be Certain the Prescribed Medication Is Reasonable and Necessary.

Challenging a prescription written by a treating physician is quite difficult without developing the medical record further in most cases.

Virginia Code § 65.2-603 provides that the employer will be responsible for medical attention which the attending physician deems necessary as long as causal relationship is established, subject to review by the Commission. Jensen Press v. Ale, 1 Va. App. 153 (1985). The case law further provides that “the opinion of the treating physician is entitled to great weight” even though the Commission is not bound to accept it. If the opinion “conflict[s] with other medical evidence, the Commission is free to adopt that view ‘which is most consistent with reason and justice.’” Id. (quoting Georgia-Pacific, 32 Va. App. 1, 5 (2000). When the treating physician has prescribed specific medical treatment, the burden of proof then shifts to the employer to show that the medical treatment is unreasonable or unnecessary. Sheffer v. Flint Ink Corp., VWC File No. 209-31-73 (Aug. 14, 2006).

Given that the burden shifts to the employer after a specific prescription has been made by a treating physician, it is critical that the employer secure appropriate rebutting medical evidence.

This will likely include the need for some or all of the following actions:

• • • an in-person independent medical evaluation;
    • a records review; and/or
    • further solicited opinions from the treating physician by way of conference or deposition.

We suggest that the following potential prescribing scenarios being closely scrutinized:

• • • Co-prescribing opioids (OxyContin, Vicodin, Percocet, etc.) and benzodiazepines (Ativan, Valium, Xanax, etc.);
    • Corticosteroids (prednisone, cortisone, hydrocortisone, etc.) prescribed with no tapering plan;
    • Opioids prescribed with no tapering plan; and
    • Compound creams.

It also worth noting that an inappropriate prescribing regimen may serve as a basis to move for change in treating physician in Virginia.

3. Be Certain the Charges are Reasonable.

Unfortunately, prescription charges are not covered under Virginia’s medical fee schedule. We have observed issues with unreasonable charged amounts particularly with some pharmacies closely connected to the treating physician as well as pharmacies that market directly to the injured worker population.

Virginia Code § 65.2-603 (A) requires the employer to “furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by the injured employee from a panel of at least three physicians selected by the employer and such other necessary medical attention.” “[T]he employer is financially responsible for the medical attention which an attending physician deems necessary, subject to review by the Commission.” Jensen Press v. Ale, 1 Va. App. 153, 159 (1985).

In determining whether charges meet this standard, the Commission may consider the provider’s “bill as prima facie evidence that [its] charges were consistent with the requirements of the Act.” Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 703 (2012). In effect, this consideration creates a rebuttable presumption that the charges are reasonable. See id. at 703-04. Once a prima facie case has been established, the employer then has the “burden of proving the excessiveness of the charges.” Id. at 705. To prove that the healthcare provider’s charges were in excess of the prevailing community rate, the employer must present evidence of what other providers in the community charged for the same services rendered to the claimant. See Va. Code 65.2-605(B)(1).

This will likely include the need for some or all of the following actions:

• • • a records review which includes statistical evaluation of the charged amounts and how they exceed the prevailing community standard;
    • securing appropriate data from the charging pharmacy as to charged amounts for the drug(s) at issue usually by way of a subpoena duces tecum;
    • securing appropriate data from other pharmacies in the community as to charged amounts for the drugs at issue; and/or
    • further solicited opinions from the treating physician by way of conference or deposition.

Our firm also recommends that employers use a prescription program with fair pricing and that this program be offered to injured workers promptly following the need for prescriptions due to the work accident. Our firm also recommends that a writing be sent to the injured worker with copy to the treating physician advising that a prescription program is being offered without any comprise to accessibility or quality of the drug at issue.

4. Be Aware of Requirement for Use of Generic Drugs in Most Cases.

The Virginia adjuster should also be aware that use of generics are required unless the treating physician has specified that the brand name drug is medically necessary pursuant to Va. Code § 65.2-603.1. The adjuster should question closely any presented medications that are not generic.

5. Be Aware that Claims by Providers for Insufficient Payment Must be Brought Within One Year.

The Virginia adjuster should also be aware that the health care provider must submit claims for alleged insufficient payment within one year since the date payment last received by the health care provider pursuant to Va. Code Section 65.2-605.1(F). This is a relatively new provision under the Act adopted in 2014.

Scott Ford is co-founder of Ford Richardson. The firm has multiple offices across Virginia and in Washington, D.C. Ford has over 27 years of experience defending employers and carriers with workers’ compensation matters. He also is the author of two of the leading desk reference materials used by Virginia Adjusters — The Virginia Adjuster Guide and Virginia Case Law Review. Copies are available by contacting Mr. Ford at sford@fordrichardsonlaw.com.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

Ford Richardson is a full-service law firm with headquarters located in Richmond’s financial district and satellite offices in Roanoke, Fairfax and Virginia Beach and Washington, D.C..

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