Tag Archives: safety issues

Novel Controls on Physician Dispensing

As you know, I’m not a fan of physician dispensing. In limited cases, there can be benefits from patient compliance and convenience and from immediate treatment. However, my opinion is that in most cases physician dispensing creates a motivation to continue prescribing (because revenue to the physician is at stake) and causes patient safety issues (by bypassing the people who really understand drugs — pharmacists and pharmacies — and possibly not taking into account drug interactions).

On top of that, physician dispensing can increase lost time by an injured worker, as documented in a study of Illinois. When evaluating the differences between physician-dispensed and non-physician-dispensed medications, the study found:

  • For physician-dispensed, non-narcotic drugs — medical costs ▲ 39%, indemnity costs ▲ 27%, lost-time days34%, average total claim ▲ 31%, # of prescriptions = 2.99
  • For physician-dispensed narcotic drugs — medical costs ▲ 78%, indemnity costs ▲ 57%, lost-time days ▲ 85%, average total claim ▲ 64%, # of prescriptions = 3.20

Several states have tried to combat inappropriate physician-dispensing over the past few years, using fee schedule and rules and even felonies as countermeasures. Some efforts have been successful, while others have just created a continuing cat-and-mouse game for repackagers and physicians vs. payers.

Well, effective Jan. 1, 2016, Nevada instituted its own type of reform, specific to workers’ comp. The bill does not appear to be ambiguous or up for interpretation. The bill (SB 231) was signed by the governor on May 27, 2015, but the intended (and unintended) ripple effects started last Friday. Read the entire act here. To highlight:

  • Section 1.1.a – A “provider of healthcare” can only provide an initial 15-day supply of Schedule II or III controlled substances to an injured worker. Note that this excludes pharmacists and hospitals, both reasonable carve-outs. Any subsequent such controlled substances must be dispensed by a pharmacy. Excellent.
  • Section 1.1.b – The “provider of healthcare” dispenser must include the original manufacturer’s national drug code (NDC) on bills and reports. Good. This doesn’t necessarily fix the issue of repackagers becoming “manufacturers” of unique (previously unnecessary) dosages and inflating prices, but …
  • Section 1.1.c – A repackaged drug must not be used. Booyah.
  • Section 1.1.d – For outpatient care, a non-prescription drug will not be reimbursable. Excellent.

While not all dangerous or clinically inappropriate drugs are Schedule II or III, these new rules should certainly make a dent in direct dispensing of those that are. This bill does not outlaw physician dispensing, but it does remove revenue motivation so a “provider of healthcare” will focus on the most clinically appropriate care (which may not be a drug). Working as a team, the “provider of healthcare” and the pharmacist should determine what, if any, drugs are clinically appropriate for the injured worker/patient.

It will be interesting to see how the repackaging industry responds. For an example of the state of the industry in Nevada, check out this website. (Nine uses of the word “revenue” on the repackager’s home page. Hmmmm.)

If you operate in Nevada, keep your eyes and ears open. And if you see reactions, please let us all know!

Are You Aware Of The Independent Employee Act Defense?

Are you aware of the Independent Employee Act Defense? If you are, then you do not need to read on. However, I am willing to bet that most of you are not so that is why I am offering this for your reading enjoyment.

The question is “What do you do if you are fined by OSHA for a serious penalty?” Among the various defenses available, there is the Independent Employee Act Defense (IEAD). It is all based on the 1980 Mercury Service, Inc., case which by the way is still cited in Cal/OSHA legal circles.

In this defense, the employer must plead that the act of the employee that caused the injury was an independent act of the employee, and the employer should not be held liable. The argument by the employer is that “I did everything the law required me to do, but the employee violated company policies and procedures and that is what caused the injury.”

Now this seems simple but it is not. In order to prevail with the affirmative defense, it must first be pled on the appeal following the citation and for the employer to prevail, he/she must prove all five of the following elements:

  1. The employee was experienced and trained on the job. Using the case noted as our base, the employee was a diagnostic specialist on automobiles. The employer presented over 70 training certificates from the manufacturer out of which over 30 were on engine diagnostic and performance checks. Also, training certification from a nationally recognized body was provided by the employer. OSHA accepted the employer’s claim on this issue. However, OSHA reviewed all of the safety training that had been completed by the tech.
  2. The employer has a well-defined safety program in place. This one is so obvious. You must prove that you have a well-defined and active safety program in place. Here, the employer provided its Injury & Illness Prevention Program Manual along with copies of the various training sessions that had been given. These were taken directly from the manufacturer’s service manual that were relevant to the tasks being performed at the time of the injury. OSHA again accepted this part of the defense as well.
  3. You must have a policy of sanctions against employees who violate your safety program. Employers must have a policy of sanctions which is enforced equally against any employee who violates your safety rules or is involved in unsafe acts. Here the employer reported that he did not have such a policy as injuries were virtually non-existent and therefore not needed. The employer lost on this one at OSHA as no policy was in place and as any earlier violations that may have occurred had not been documented.
  4. You must also have an effective enforcement program in place. The written policy noted above must be enforced equally and be well documented. Here, OSHA held that the enforcement part of the employer’s overall safety program had “no teeth” and that the program which was well written was never followed nor enforced. Here, as you can see, the employer lost.
  5. The employee caused the safety infraction which he/she knew was contrary to the employer’s safety requirements. Here, the employer must prove that the employee had the requisite knowledge of the safety requirement which he knowingly violated, whether on purpose or by his/her own negligence. The employer provided a copy of the safety rules in place at the time of the injury which had been signed and acknowledged by the injured employee. They also provided a copy of the shop manual (specific directions on the servicing of vehicles) which all technicians refer to repeatedly. This document also outlined the safety procedures for each task as well as the relevant safety issues.

So what does this say to you? It says that if you have an effective Injury & Illness Prevention Program and training program in place which is well documented and enforced you may be able to effectively defend against an OSHA serious violation. However, the important thing to remember is that proper documentation wins the day. Without it, don’t even try to defend as you will most likely lose. The watch word by most agencies is that lack of documentation means that there was no documentation and you lose.