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Legislation enacted in April 2017 required the New York State Workers’ Compensation Board to establish a drug formulary. The New York Workers’ Compensation Drug Formulary (NY WC Formulary) is based on a medication’s effectiveness and appropriateness for the treatment of illnesses and injuries covered under the Workers’ Compensation Law.

The NY WC Formulary drug list designates drugs as either “Phase A”, “Phase B” or “Perioperative.” Additionally, some drugs are listed as second-line therapy (2nd line) and may only be used when other drugs associated with the phase of treatment have been deemed ineffective. Drugs not listed on the NY WC Formulary are considered non-formulary.

Formulary drugs do not require prior authorization. Prior authorization from the insurer or self-insured employer is required for:

  1. Drugs not listed on the NY WC Formulary;
  2. A formulary brand name drug, when a generic is available;
  3. Combination products, unless specifically listed in the NY WC Formulary;
  4. A brand name drug when a generic version with the same active ingredient(s) is commercially available in a different strength/dosage (e.g., a generic drug available in 5 mg and 10 mg, but brand name drug available in 7.5 mg would be considered non-formulary and could only be dispensed via prior authorization.); and
  5. Compounded drugs.

Application of the NY WC Formulary

The NY WC Formulary sets forth drugs in three lists: Phase A, Phase B and Perioperative. These three lists of drugs are considered formulary and can be prescribed per the following framework. For more detailed information about Phase A, Phase B and the Perioperative drugs, can be found in the New York State Workers’ Compensation Drug Formulary – Latest Version adobe pdf.

Phase A Drug List

Drugs on this list may be prescribed and dispensed subject to the following:

  1. Within the first 30 days following an accident or injury or until the insurer accepts the claim or the Board establishes a claim, whichever occurs sooner.
  2. For up to a 30-day supply.

Phase B Drug List

Drugs on this list may be prescribed and dispensed subject to the following:

  1. After 30 days following an accident or injury or when the carrier has accepted the claim or the Board has established a claim, whichever occurs sooner.
  2. For up to a 90-day supply.
  3. When a body part or illness has been accepted (with or without liability) or established, drugs must be prescribed in accordance with, as applicable, the Workers’ Compensation Board’s adopted New York Medical Treatment Guidelines (NY WCB MTG).
  4. Phase B drugs designated as “2nd line” may be prescribed and dispensed following an unsuccessful trial of a first-line drug prescribed in accordance with Phase B and, as applicable, the adopted NYS WCB MTG.

Perioperative Drug List

Drugs listed on the Perioperative Drug List may be prescribed/dispensed when:

  1. The drug is prescribed during the perioperative period (four days before through four days following surgery).

Second-Line Drugs

Drugs designated as “2nd line” may be prescribed and dispensed following a trial of a first-line drug prescribed in accordance with Phase B and, as applicable, the adopted NYS WCB MTG.

Special Considerations

Some drugs are marked with a Special Consideration indication. These include:

  1. “Not to exceed a single seven (7) day supply” – meaning that a specific formulary drug can be prescribed and dispensed one time only without a prior authorization, for a maximum of a seven-day supply, during the phase of the NY WC Formulary under which it is contained (e.g., controlled substances);
  2. “For the prescribed course of therapy” – meaning that a specific formulary drug can be prescribed and dispensed, during the applicable phase of the NY WC Formulary, for the quantity indicated by the prescriber (e.g., antibiotics);
  3. “Short acting only” – meaning that a specific formulary drug can only be prescribed and dispensed for the short-acting formulation of the product; and
  4. “As clinically indicated for causally related injuries or conditions utilizing accepted standards of medical care” – meaning that the item can be prescribed and dispensed when there is no adopted NYS WCB MTG for the established/accepted body part or condition, and/or for a condition directly associated with an established/accepted body part, but not specifically addressed in the NYS WCB MTG. (e.g., treatment of a post-operative infection following a knee replacement).

Prior Authorization

A medical provider must obtain prior authorization before prescribing or dispensing a drug other than as described in the Application of the Formulary section (see above), or when prescribing:

  1. A drug not listed on the NY WC Formulary,
  2. A formulary brand name drug, when a generic is available,
  3. Combination products, unless specifically listed on the NY WC Formulary,
  4. A brand name drug when a generic version containing the same active ingredient(s) is commercially available in a different strength/dosage, or
  5. A compounded drug.

If prior authorization is not obtained prior to the dispensing of the drug, the insurer or self-insured employer may deny payment.

Prior Authorization Process

The Prior Authorization process shall consist of a review, which may incorporate up to three levels of review. Detailed information about the Prior Authorization process can be found in the New York State Workers’ Compensation Drug Formulary – Latest Version adobe pdf

First Level Review

The provider shall submit a Prior Authorization request, in the manner prescribed by the Chair, to the insurer, self-insured employer, or, when designated, the pharmacy benefits manager.

The First Level Review has these requirements and time frames:

  1. The Prior Authorization request may include the quantity to be prescribed and the number of refills or the duration of the prescription. If the duration is not stated, the default shall be 30 days. In no event may a Prior Authorization request exceed 365 days.
  2. The insurer, self-insured employer or pharmacy benefits manager shall approve, partially approve or deny a Prior Authorization request within four calendar days of submission by the provider:
    1. A partial approval authorizes the requested drug, but limits the length of time, quantity prescribed or number of refills from that requested by the prescriber.
    2. A Prior Authorization request that is not responded to within four calendar days (by an approval, denial or partial approval) may be deemed approved as prescribed, not to exceed a 365-day supply, upon issuance of an Order of the Chair.
  3. A partial approval or denial of a Prior Authorization request must:
    1. Provide a specific reason for the denial or partial approval with reference to the specific Prior Authorization request made by the prescriber.

Second Level Review

Within ten calendar days of a denial or partial approval of a First Level Prior Authorization request, the prescriber may request review of such denial or partial approval by the carrier’s physician.

The Second Level Review has these requirements and time frames:

  1. The Prior Authorization request shall include:
    1. All information submitted by the prescriber for the First Level Review and the response from the insurer, self-insured employer, or when designated, the pharmacy benefits manager,
    2. All information provided to the prescriber related to the First Level Review denial or partial approval, and
    3. Additional information from the prescriber further justifying the need for the requested non-formulary medication responding to the reason(s) stated in the First Level Denial.
  2. The insurer’s physician shall approve, partially approve or deny a Prior Authorization request within four calendar days of submission by the prescriber.
    1. A request for Second Level Review that is not responded to within four calendar days (by an approval, denial or partial approval) may be deemed approved as prescribed, not to exceed a 365-day supply, upon issuance of an Order of the Chair.

Third Level Review – Review by the Board of a Prior Authorization Denial or Partial Approval

Within ten calendar days of a denial or a partial approval by the insurer’s physician of a Second Level Review, the prescriber may seek review by the Board’s Medical Director’s Office.

The Third Level Review has these requirements and time frames:

  1. The prescriber shall submit the Prior Authorization request to the Medical Director’s Office within ten calendar days of the Second Level Review denial date.
  2. The request must include all documentation submitted in support of the First and Second Level Review and the information associated with the denial or partial approval issued from the First Level Review and the Second Level Review. The prescriber should respond to the reason(s) stated in the Second Level Denial.
  3. All requests shall be submitted to the Medical Director’s Office in the format prescribed by the Chair.
  4. To ensure the timely review of requests, the Chair or Medical Director may designate private entities to evaluate such requests for review of denials of a Second Level Review, provided the entity has:
    1. The appropriate URAC accreditation or such accreditation/certification as designated by the Chair,
    2. Other demonstrated expertise and criteria established by the Board, and
    3. No conflict of interest related to the review and resolution of the request.

The decision by the Medical Director’s Office is final and binding on the prescriber, the insurer, self-insured employer and pharmacy network.

In the event a Third Level Review is denied, the prescriber may not submit a Prior Authorization request for the same medication unless he or she submits evidence that there has been a change in the claimant’s medical condition that renders the denial of the Prior Authorization request no longer applicable to the claimant’s current medical condition.

Regulation

Adoption of Part 441 of 12 NYCRR (Drug Formulary)

Resources

Provider Resources

Payer Resources