[ J
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EASTERN DISTRICT

KEYSTONE RX LLC,

v.

BUREAU OF WORKERS' COMPENSATION FEE REVIEW HEARING OFFICE (COMPSERVICES INC./AMERIHEALTH CASUALTY SERVICES)

APPEAL OF: COMPSERVICES/AMERIHEALTH CASUALTY SERVICES : : : : : : : : : : : : : : : No. 27 EAP 2020 Appeal from the order of Commonwealth Court entered on December 12, 2019 at No. 1369 CD 2018 (reargumen t denied on January 30, 2020) affirming the Order entered on September 12, 2018 by the Bureau of Workers' Compensation at No. DSP

7388753

- 4. ARGUED: April 13, 2021

KEYSTONE RX LLC

v.

BUREAU OF WORKERS' COMPENSATION FEE REVIEW HEARING OFFICE ( COMPSERVICES INC./AMERIHEALTH CASUALTY SERVICES)

APPEAL OF: BUREAU OF WORKERS' COMPENSATION FEE REVIEW HEARING OFFICE : : : : : : : : : : : : : : : No. 28 EAP 2020 Appeal from the order of Commonwealth Court entered on December 12, 2019 at No. 1369 CD 2018 (reargument denied on January 30, 2020) affirming the Order entered on September 12, 2018 by the Bureau of Workers' Compensation at No. DSP

7388753

- 4. ARGUED: April 13, 2021

CONCURRING O PINION

JUSTICE WECHT DECIDED: December 22, 2021 I join the Majority Opinion in full.[ J

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Today’s disposition reflects the judiciary’s obligation to defer to the legislature’s policy choices . R emedies may be available to aggrieved providers like Keystone R x that have been left out of the Utilization Review process of the Workers’ Compensation Act , but these remedies do not include judicial re

- writing of the Act

. U nder the A ct , U tilization R eview allows e mployers, employees, and insurers to obtain an impartial determination of the “ reasonableness or necessity ” of a claimant’s
treatment. 77 P.S. 531(6)(i). After that initial determination, a party or a health care provider has the right to seek review. Id

. § 531(6)(iv). This process examines the medical treatment under review, including services provided by non

- treating providers , such as Keystone R x, which dispensed medications pursuant to a physician’s prescription. Such

non - treating providers are not, however, included in the process. Th e legislature could have included non

- treating provide rs in the U tilization R eview
process . I t did not do so

. Instead, the General Assembly provided a remedy to non

treating providers that is limited to challenging the amount and timeliness of payment for treatment that is reasonable and necessary. See Ma j. Op. at 15

- 16; see also 77 P.S. §
531 ( 1)(i)

. T he process for determining the reasonableness and necessity of treatment affords no role for non

- treating providers, essentially shifting the cost of rendering
treatment that is later determined not to be re asonable or necessary from the insurer or employer to the non

- treating provider. This scheme was legislated by the General Assembly

. T he legislature exercised its policy

- making authority to decide who should be included in U tilization R eview , and who should not. This is the function of our General Assembly : it make s social policy judgments and decide s among c ompeting interests

. Villani v. Seibert , 159 A.3d 478, 492 (Pa. 2016) (“[T] his Court frequently acknowledges the Legislature ’ s superior resources and institutional prerogative in making social policy judgments upon a developed[ J

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analysis .”) ; Weaver v. Harpster , 975 A.2d 555, 563 (Pa. 2009) (“[I]t is for the legislature to formulate the public policies of the Commonwealth.”)

. Whatever t he potential inequity of this result, it is a matter of legislative discretion. It is not a field for judicial reformation. It is not for the judiciary to usurp the General Assembly’s policy

- making authority and exceed the parameters of legislation by engr afting statutory requirements that the General Assembly chose to omit , even where sound reasons may appear to favor the creation of a mechanism omitted from the statute. 1 Discovery Charter Sch. v . Sch. Dist.

o f Phila , 166 A.3d 304, 3 18 (Pa. 2016) (“[I] t i s not the province of the judiciary to augment the legislative scheme .”); Parker v. Children’s Hosp

. of Phila

. , 394 A.2d 932, 937 (Pa. 1978) (“ [ T ] he power of judicial review must not be used as a means by which the courts might substitute its judgment as t o public policy for that of the legislature.”) ; Glancey v. Casey , 288 A.2d 812, 816 (Pa. 1972) (“Time and again, we have taken the position that the judiciary does not question the [w] isdom of the action of a legislative body.”). Because it was the legislature that, by design, made payment to non

- treating providers contingent upon determinations of reasonableness and necessity, the remedy for the consequences of this decision also lies with the legislature. Entities left out of th e Utilization Review process
— including d iagnostic testing facilities, durable medical equipment companies, laboratories, medical imaging centers, opticians, pharmacies, physical therapy centers, and visiting nurses

— are free to petition the legislature for redress for payment for services rendered under a physician’s orders . Keystone Rx’s

1 Of course, legislation cannot deprive any person of a protected property interest without due process of law. See Am

. M frs. Mutual Ins. v. Sullivan , 526 U.S. 40, 59 (1999). As the Majority observes, there is no protected property interest in the payment of disputed medical bills before the treatment is deemed reasonable and necessary. See Maj. Op. at 1 5

- 16 . Although Keystone R x may have had an expectation of payment for prescriptions it dispensed, it had no protected property interest in those p ayment s , and due process protections do not apply to mere expectations

. See i d . at 16.[ J

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policy

- based arguments are for the policy

- making branches . They are not for the judiciary. Short of legislative intervention, non

- treating providers will have to make the business decision of whether to continue providing services to workers’ compensation
claimants

. Perhaps a reasonable business decision would be to eliminate the risk by refusing to fill prescriptions in workers’ compensation cases, knowing and opting out of
the risks involved in such transactions. A s this case comes to us, however, Keystone Rx assumed the risk when it entered into its business , knowing the limitations involved, and elected to fill prescriptions for workers’ compensation claimants whose t reatment may ultimately prove non

- compensable under the Act.
N on - treating providers might opt to continue provid ing services and spread the risk of non

- payment , insure against it , or seek subrogation or payment from another insurer as the facts and circums tances may allow. Perhaps these providers might choose to pursue remedies directly against the injured workers. Although an injured employee is not responsible under the Act for reasonable and necessary treatment resulting from a
work

- related injury, it does not appear that any law preclude s direct action against a customer whose injuries are not compensable under the Act. Where the Act is not implicated, any remedies Keystone Rx would have generally against its customers would presumably be available, i ncluding a breach of contract claim. Any argument that the Act or the accompanying regulations preclude directly billing an injured employee fall away once the injury or treatment is determined not to be compensable under the Act. 2

2 See, e.g. , 77 P.S. § 531 (7) (“A provider shall not hold an employe liable for costs related to care or service rendered in connection with a compensable injury under this ac t. A provider shall not bill or otherwise attempt to recover from the employe the difference between the provider ’ s charge and the amount paid by the employer or the insurer. ”). Although the Bureau of Workers’ Compensation ’ s regulations prohibit balance b illing, this prohibition pertains to “ providers , ” which is regulatorily defined as “ health care[ J

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N on - treating providers are free to re

- calibrate the ir business es to adjust to the legislat ure’s decision to impos e upon them t he risk of non

- payment for treatment that is
later determined not to be reasonable or necessary. But we are not free to recalibrate the statutory law. Justice Dougherty joins this concurring opinion.

providers.” See 34 P A

. C ODE § 127.211 (b) (“ A provider may not bill for, or otherwise attempt to recover from the employe, charges for treatment or services determined to be unreasonable or unnecessary in accordance with the act or Subchapter C (relating to medical treatment review). ”) ; id . § 127.3 (defining “provider” to mean a “health care provider”) . Because Keystone Rx has never identified itself as a hea lth care provider, this regulatory prohibition is inapplicable.