IN THE COMMONWEALTH COURT OF PENNSYLVANIA

700 Pharmacy

, : CASES CONSOLIDATED Petitioner :

:

v. : No. 56 2 C.D. 2020

: Bureau of Workers’ Compensation : Fee Review Hearing Office (State : Workers’ Insurance Fund), : Respondent :

State Workers’ Insurance Fund, : Petitioner :

:

v. : No. 612 C.D. 2020

: Argued: April 9, 2024 Bureau of Workers’ Compensation Fee : Review Hearing Office (700 Pharmacy), : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: May 16, 2024

In this case, 700 Pharmacy (Pharmacy) and State Workers’ Insurance Fund

(Insurer) cross

- petition for review of the decision and order of Hearing Officer David

Torrey (Hearing Officer) of the Bureau of Workers’ Compensation Fee Review

Hearing Office (Bureau ) denying and dismissing six fee review applications

(Applications) Pharmacy brought in connection with prescriptions it filled for a2

claimant. 1 Insurer argues the Hearing Officer erred in concluding Pharmacy, staffed

by a pharmacist provided by an employee leasing agency, amounts to a provider as

defined by Section 109 of the Workers’ Compensation Act (Act), 2 77 P.S. § 29, with

standing to bring a fee review application under Section 306(f.1)(5) of the Act, 77

1 The Applications at issue involve the following prescriptions and amounts. MF

- 57 4610 involves prescriptions for Zolpidem Tartrate 10

- milligram tablets, Dok 100

- milligram softgels;

Ondansetron Hcl 4

- milligram tablets, and Oxcarbazepine 300

- milligram tablets totaling $3,045.02 , as well as Hysin gl a ER 20

- milligram tablets and Hydrocodon

- Acet a minophen 5

- 325 totaling $502.72 . (Reproduced Record (R.R.) at 59a

- 60a .) MF

- 577911 involves prescriptions for Amitriptyline Hcl powder

, Diclofenac sodium powder, Baclofen powder, Base Pcca Emulsifix

, Lidocaine powder, and Hyd r oco do n

- Acet a minophen 5

- 325 , totaling $1,556.43, along with

Zo l pidem Tartrate 10

- milligram tablets, Dok 100

- milligram softgels, Ondansetron Hcl 4

- milligram tablets, Oxcarbazepine 300

- milligram tablets, and Hysingla ER 20

- milligram tablets, totaling $3,463.06. ( Id. at 77a

- 78a .) MF

- 579327 involves prescriptions for Oxcarbazepine 300

- milligram tablets

, Belbuca 300

- microgram films, Hydrocodon

- Acetaminophen 5

- 325, Zolpidem

Tartrate 10

- milligram tablets, Dok 100

- milligram softgels, and Ondansetron Hcl 4

- milligram tablets totaling $3,961.13, as well as Amitriptyline Hcl powder, Diclofenac sodium powder, Baclofen powder, Base Pcca E mulsifix 205 , and L idocaine powder totaling $1,496.65. ( Id. at
245a

- 246a.) MF

- 580809 involves prescriptions for Amitriptyline Hcl powder, Diclofenac sodium powder, Baclofen powder, Base Pcca Emulsifix

- 205, L idocaine powder, and Zolpidem Tartrate

10

- milligram tablets, totaling $1,432.01, as well as Dok 100

- milligram softgels and Ondansetron

Hcl 4

- milligram tablets totaling $2,668.49. ( Id. at 106a

- 107a.) The Applications related to MF

584789 and MF

- 586128 do not appear in the Reproduced Record but are listed in the Hearing Officer’s Decision Rendered Cover Letter. (Hearing Officer Decision at 1.) Medications are listed in this footnote as they appear on the forms submitted by Pharmacy found in the Reproduced

Record.

2 Act of June 2, 1915, P. L. 736

, as amended , added by Section 3 of the Act of July 2, 1993, P.L. 190, 77 P.S. § 29. More specifically, Section 109 defines “provider” as “health care provider,”

which in turn is defined as

any person, corporation, facility or institution licensed or otherwise authorized by the Commonwealth to provide health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employe or agent of such person acting in the course and scope of employment or agency related to health care services.

Id. Accordingly, we use “provider” and “health care provider” interchangeably.3

P.S. § 531(5). (Insurer Petition for Review ¶ 9.) Pharmacy argues the Hearing

Officer erred in concluding the prescriptions forming the basis of the Applications

were the product of an unlawful self

- referral under Section 306(f.1)(3)(iii) of the

Act, 77 P.S. § 531(3)(iii) (anti

- referral provision). 3 (Pharmacy Petition for Review

¶ 8.)

These cross

- petitions for review involve the same parties and legal issues as

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office

(State Workers’ Insurance Fund) , ___ A.3d ___ (Pa. Cmwlth., Nos. 560 and 617

C.D. 2020, filed May 16, 2024 ) ( 700 Pharmacy I ). 4 In 700 Pharmacy I , we
concluded that Pharmacy has standing to request fee review but that the prescriptions

underlying the applications at issue there were products of a prohibited self

- referral

under the anti

- referral provision. Therefore, we affirmed the Hearing Officer ’s

denial and dismissal of those applications.

3 The anti

- referral provision was added by Section 8 of the Act of July 2, 1993, P.L. 190, and provides:

Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy or diagnostic imaging, goods or services pur suant to this section if the provider has a financial interest with the person or in the entity that receives the referral. It is unlawful for a provider to enter into an arrangement or scheme such as a cross

- referral arrangement, which the provider knows or should know has a principal purpose of assuring referrals by the provider to a particular entity which, if the provider d irectly made referrals to such entity, would be in violation of this section. No claim for payment shall be presented by an entity to any individual, third

- party payer or other entity for a service furnished pursuant to a referral prohibited under this section.

77 P.S. § 531(3)(iii).

4 ( See Pharmacy’s Brief (Br.) at 5 n.3 (explaining that five appeals, including 700 Pharmacy I and the instant matter, “involv[e] the same legal question and involv[e] the same parties”) ; s ee also Insurer’s Br. at 8 n.1 (same).)4

The Hearing Officer’s dispositive findings of fact and conclusions of law in

this matter are nearly identical to those in 700 Pharmacy I . First, just as in 700

Pharmacy I , the Hearing Officer in this case found that “[the claimant’s] treating

pain physician, Dr. Miteswar Purewal, whose office is upstairs from [] Pharmacy,

wrote or supervised the prescriptions for the medications at issue. In an exhibit of

[] Pharmacy, [Dr. Purewal] acknowledges that he has a financial interest in []

Pharmacy.” (Hearing Officer Decision, Finding of Fact (FOF) ¶ 3; see also

Reproduced Record at 200a .) Second, the Hearing Officer also found here that

Induction Works, the employee

- leasing te am handling billing for Pharmacy, is an

agent of Pharmacy, such that Pharmacy continues to have standing to pursue the

Applications. (FOF ¶ 10.) Because there is no relevant factual or legal difference

between this case and 700 Pharmacy I , we must conclude here, too, that Pharmacy

had standing to file the Applications, and that the underlying prescriptions are the

product of a prohibited self

- referral, as the anti

- referral provision includes

pharmacies. Accordingly, for the reasons set forth in 700 Pharm acy I , we affirm.

__________ ________________________________ RENÉE COHN JUBELIRER, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

700 Pharmacy, : CASES CONSOLIDATED Petitioner :

:

v. : No. 56 2 C.D. 2020

: Bureau of Workers’ Compensation : Fee Review Hearing Office (State : Workers’ Insurance Fund), : Respondent :

State Workers’ Insurance Fund, : Petitioner :

:

v. : No. 612 C.D. 2020

: Bureau of Workers’ Compensation Fee : Review Hearing Office (700 Pharmacy), : Respondent :

O R D E R

NOW , May 16, 2024 , the Order of the Bureau of Workers’ Compensation Fee

Review Hearing Office, in the above

- captioned matter, is AFFIRMED

.

________________________ _____ _____________ RENÉE COHN JUBELIRER, President Judge