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Non-Health Care Providers Must be Given Due Process in Utilization Review Requests

Due Process Requirements for Non-Health Care Providers
Beginning December 12, 2019 and onward, all non-health care providers such as pharmacies, testing facilities or providers of medical supplies, must be provided notice and an opportunity to intervene in the Utilization Review Determination. Keystone Rx, LLC v. BWC Fee Review hearing Office (Compservices Inc./AmeriHealth Casualty Services).

In Keystone, a Utilization Review Determination was issued wherein it was determined that medical treatment, including prescriptions issued by Keystone Rx, LLC, was not reasonable and necessary. While the Utilization Review request was pending, Keystone Rx, LLC, issued the medications, without payment. After the Utilization Review Determination was issued, Keystone Rx, LLC attempted to obtain payment from the insurance company via the Fee Review Process. The Fee Review Hearing Officer found that it had no jurisdiction to decide issues involved with the Utilization Review Determination. Keystone Rx, LLC appealed to the Commonwealth Court, arguing that its due process rights were violated as it had not been a party to the Utilization Review request.

The Commonwealth Court agreed with Keystone Rx, LLC in that pharmacies, and other non-health care providers, have a due process interest in the Utilization Review process. While the Court issued its ruling, it did not provide any guidance as to the type of notice the non-health care providers must receive, nor did it provide any guidance as to how the providers should intervene, other than to state “under the usual standards for allowing intervention”. While the Court did not specifically tell the legislature that it needs to address this situation, the Court suggested same.

Pennsylvania Rule of Civil Procedure 2328 sets forth the procedure for intervention in a civil action. Pa.R.C.P 2328 requires the party which seeks intervention in a civil action to file a petition with the court of record setting forth the reasons its intervention should be allowed.  

Until such time as the Bureau of Workers’ Compensation or the Legislature issue guidance as to how a non-health care provider can intervene in a Utilization Review request, it is suggested that a copy of the Utilization Review request be served upon any non-health care provider who may be impacted by the results of the Utilization Review Determination.

To discuss the impact of Keystone Rx, LLC, contact one of the experienced workers’ compensation attorneys at Bingaman Hess.
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