Burgess v. Sewerage & Water Board of New Orleans

On June 29th, the Louisiana Supreme Court issued its decision in Burgess v. Sewerage & Water Board of New Orleans .  This landmark decision formally addresses the question of whether an injured worker has the right to select his or her own pharmacy (in the same way that an injured worker has the right to select a physician), or whether the payer may select a pharmacy to dispense medications in that claim.

The case also marks the second time that the Louisiana Supreme Court has ruled that medications are subject to the statutory $750-per-provider limit on non-emergency diagnostic testing or treatment in a workers’ compensation claim.

Additionally, the decision provides legal authority for payers to reduce or dispute bills from out-of-state providers (including out-of-state pharmacies).

A summary of the questions addressed in the decision is provided below; however, the decision in full may be obtained on the Court’s website here.

 

Questions Answered:

  1. Does an injured worker have the right to select his or her own pharmacy in a workers’ compensation claim?No. The Court held that “the employer has the right to choose the pharmacy to furnish necessary prescription drugs to an injured employee in a workers’ compensation case.”Prior to this decision, appellate courts had been split on the question – with the Second and Fourth Circuits allowing the injured worker to choose the pharmacy, while the Third and Fifth Circuits allowed the payer to select the pharmacy.
  2. Are pharmacies subject to the $750 per provider “mutual consent” requirement?Yes. This is the second time that the LA Supreme Court has ruled that medications are subject to the $750 requirement.  In June of 2016, the Court ruled in Lafayette  Bone  &  Joint  Clinic  v.  Louisiana United Business SIF that this limit could apply to medications dispensed by a physician.  Now, in the Burgess decision, they’ve made it clear that the requirement also applies to medications dispensed by a pharmacy.
  3. Can an out-of-state pharmacy be reimbursed for medications dispensed to injured workers in LA claims?The Court held that, to be considered a “permissible out-of-state provider,” the pharmacy must provide treatment that is either:            1.) not reasonably available within the state
                or
                2.) provided at comparable costs (to those of an in-state provider)
  4. Is an out-of-state pharmacy subject to the LA reimbursement schedule? Additionally, the Court noted that even where the amounts billed are supported by the reimbursement schedule, they may still be deemed unreasonable, unnecessary, or not “usual and customary,” in which case, they will not be subject to compensation.

 

What to Expect:

Payers should develop a plan for dealing with bills from unauthorized pharmacies and for identifying an authorized pharmacy (if they have not already done so).  Payers should also develop a plan for dealing with bills for medications dispensed by a pharmacist or physician where that pharmacist or physician has already billed more than $750 for treatment in that claim.  Payers should also work with their vendors to ensure that bills from out-of-state pharmacies comply with the LA reimbursement schedule.

Should your organization have any interest in discussing how these changes might impact your book of claims, PRIUM’s Litigation Support team would look forward to having that conversation.  Contact us here: compliance@prium.net 

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