Legislators attempting to reverse provider choice policies in workers’ comp
Legislation introduced this year in multiple states (listed below) would permit injured workers to choose various treating providers in states that, to some degree, currently permit the employer or insurer to make that choice.
Legislation in New York would no longer allow insurers and employers to direct injured workers to use designated network pharmacies, with some noted exceptions. While some details differ among the bills, A 1013, A 1174 and S 1026 would all amend existing law where an insurer or employer may contract with a pharmacy network and require injured workers to use it exclusively. Under these bills, an injured worker would be free to obtain prescribed medications at the pharmacy of their choice as long as that pharmacy is registered as a resident, in-state pharmacy with the state Board of Pharmacy.
However, any resident, in-state pharmacy contracted with the network the insurer or employer designates would still be obligated to process all claims through their contract with the designated network.
Injured worker choice would also not apply to any non-resident, out-of-state pharmacies nor to any compound medications prescribed. The insurer or employer would have the right to deny any charges from non-resident, out-of-state pharmacies and any charges for non-FDA approved extemporaneous compound medications.
These bills are in the committee process in their respective originating chambers. Similar legislation attempting to remove pharmacy direction of care has been attempted over the last several years in New York but has failed.
Under Iowa HF 123, an employer would still be permitted to choose the physician in a workers’ compensation claim but only if an injured worker has not pre-designated a physician. The bill gives an injured worker the right to pre-designate a physician who is a primary care provider, who has previously provided treatment to them and has retained their medical records.
The employer would be required to provide written notice to employees of this right upon hire, periodically during employment, and upon receiving notice of an injury from an employee who has not yet pre-designated a physician. The bill states that an employer or their workers’ compensation insurer shall not coerce or otherwise attempt to influence an injured worker’s choice of a physician, and if the employer fails to provide such notification, an injured worker has the right to choose any physician to provide treatment for their injury and that treatment shall be considered authorized care. HF 123 is pending in the House Labor Committee.
Two Kansas bills would permit injured workers to select their provider. HB 2312, as introduced, would make a simple five-word addition to the text of the law: “designated by the injured employee.” This would be added to the provision that states it is the duty of the employer to provide for the services of a healthcare provider.
SB 203 adds those same five words but is more expansive. SB 203 amends existing language to state that it shall be the duty of the employer “to pay for” (rather than “provide for”) the services of a healthcare provider. The also bill removes existing language allowing the state agency to, upon application of an injured worker, authorize the appointment of some other provider other than the one provided by the employer.
Both bills are pending committee review in their respective chambers.
Current Montana workers’ compensation law provides that prior to an insurer's designation or approval of a treating physician or referral to a managed care organization (MCO) or preferred provider organization (PPO), an injured worker may choose a treating physician.
Montana HB 412 would instead “restore” the right of the injured worker to choose their treating physician by removing provisions stating the insurer may designate the physician. The treating physician may be changed at any time with consent of the injured worker and insurer, and refusal to consent to a change would be subject to mediation.
Under the bill, use of a PPO or MCO would still be permitted and all emergency care outside of the MCO would be permitted. HB 412 was tabled in the House Business and Labor Committee February 26.
Indiana HB 1339, which also provides that an injured worker is entitled to choose their attending physician, is in the House committee process. Current Indiana law permits the employer to select the attending physician. This bill is discussed in an earlier Policy Matters Brief.
Bill status monitoring
The Optum Workers’ Compensation and Auto No-fault Public Policy and Regulatory Affairs team continually monitors legislative and regulatory activity in all states. During the peak of legislative sessions, we track thousands of bills at any given time.
For a list of several other bills which may have an impact on the services we provide our clients, be sure to review our bill status report. Should you have any questions on any of this or another public policy topic, please reach out to our team at OWCAPolicyMatters@optum.com.