The Ohio Bureau of Workers Compensation recently decided to drop the manager of their drug formulary, Optum Rx , who in the words of a court administrator were “hosing” the State of Ohio.
“Told you so,” said me and many other critics of drug formularies.
Drug formularies are touted as a way to reduce opioid abuse and limit drug costs. But formularies are run by pharmacy benefit managers (PBMs) who have been widely criticized for pushing up drug costs. In 2017 The City of Omaha opposed a drug formulary bill in the Nebraska Legislature over similar fears of being hosed by PBMs.
The news out of Ohio came at about the same time as a viral (for the world of workers’ compensation) blog post penned by Judge and Professor David Torrey. Judge Torrey politely bench-slapped an “industry representative” who stated that injured workers needed to “get off their asses” during a panel discussion at a workers’ compensation conference about alternatives to opioids for pain managment.
I understand and share concerns about prescription drug abuse by injured workers. I’ve also encountered clients with serious bowel issues from opioid-induced constipation. Addiction seems to get more attention than digestive issues when it comes to opioids and workers compensation. I believe part of that stems from the fact that calling some an “addict” is away to dog whistle that an injured worker is a malingerer. Turning injured workers into “addicts” is a way of putting some medically-termed lipstick on a moral and ideological pig created by the insurance industry.
Perhaps true to the Trump age, the panelist in Pennsylvania dropped the conern trolling about addcition and voiced the id buried in the dark heart of the workers compensation medico-legal-industrial complex. Telling injured workers that they just need to get back to work is great for cutting expenses for workers compensation insurers. Drug formularies are good way to increase revenue for the insurance-side middleman in the workers’ compensation system. Drug formularies pre-date the opioid crisis, but they were adapted to “solve” the opioid crisis.
In response to the opioid crisis, the insurance industry has medicalized its age old criticisms of injured workers and the drug companies and PBMs have jacked up drug prices. Meanwhile injured employees aren’t getting any real help in how to deal with chronic pain. Doctors have long known that opioid dependence is a serious issue and that there are no easy solutions to chronic pain. Opioid prescriptions have been declining since 2012. If insurers and self-insureds were serious about chronic pain, they would approve alternative pain control methods and give doctors discretion to prescribe medication as needed.
The problem with that solution for insurers and self-insureds is that solution would cost them money. It’s easier to lecture injured workers’ about resilience, churn some money off of drug formularies and shift the cost of pain management back onto injured employees.
Lawmakers on a state or federal level are correct in having concerns about PBMs if they want to address drug costs and opioid use. The PBM industry has argue that state laws are “pre-empted” by federal laws regulating prescription drugs, so state laws are unconstitutional. Pre-emption is premised on the fact that federal laws are superior to state laws if there are federal and state laws on both subject matters. Recently the U.S. Supreme Court has used pre-emption to strike down state-based consumer protection laws in favor of corporate defendants. The threat of successful litigation may scare states, especially smaller states, from passing laws to regulate PBMs.
But state laws regulating the use of PBMs in the context of workers’ compensation may be easier to defend from a legal standpoint. Workers compensation laws are enacted under a state’s police powers under the 10th Amendment. The constitutional basis of workers’ compensation laws is arguably a fluke of legal history but workers’ compensation is traditionally seen as a state law concern so federal courts may be less to strike down laws regulating PBMs in the context of workers’ compensation.