DE Dept of Labor Message 10.10.13

October 10, 2013

 Delaware Office of Workers’ Compensation (OWC)

Health Care Payment System (HCPS) 

If you have any additional questions, feel free to call (302-761-8200) or e-mail ) the Delaware Office of Workers’ Compensation, Medical Component.

The attached pharmacy formulary and “Justification For Use Of Non-Preferred Medication” have been revised to better reflect the provisions of 19 DE Admin Code 1341, Section 4.13, for Pharmacy, which I pasted at the bottom of this e-mail.  The revised forms will be available on the OWC web page, as of Friday, 10/11/13.  You may download the HCPS regulations in their entirety at  Please note the following changes:



  • Added instructions, including the distribution.



  • The mandatory pharmacy formulary no longer contains “prior to approval” language in the criterion column or under the headings, except for an added section that contains the specific drugs listed in 19 DE Admin Code 1341, Section 4.13.5.
    • Pursuant to 19 DE Admin Code 1341, Section 4.13.5, Oxycontin, oxycodone, Actiq, and transmucosal fentanyl require “prior written approval” from the carrier or self-insured employer.  However, an employee on a “stable dose” of Oxycontin prior to 9/11/13 may continue to be prescribed Oxycontin, as long as the dose remains the same.  If the “stable dose” needs to change at some point after 9/11/13, “prior written approval” will then be needed from the carrier or self-insured employer.
  • Pursuant to 19 DE Admin Code 1341, Section 4.13.8, non-preferred agents on the pharmacy formulary and brand name drugs require the physician’s or authorized individual’s completion of a “Justification For Use Of Non-Preferred Medication” form.  They do not require prior written approval. 
    • Non-preferred agents – In addition to the justification form, two preferred agent trials must be documented in the medical record when non-preferred agents are prescribed. 
    • Brand name drugs not covered in the categories on the pharmacy formulary.  Only completion of the justification form (no trials) is required for physicians or authorized individuals to prescribe brand name drugs.
  • ANALGESICS, NARCOTIC LONG – Tramadol ER is now a preferred agent and (Kadian) was removed from the non-preferred agent column.  Kadian was inadvertently included in both the preferred and non-preferred columns.
  • NEUROPATHIC PAIN – Neurontin was removed from the non-preferred agent list.  Gabapantin (same drug in generic form) was already listed as a preferred agent.
  • This mandatory pharmacy formulary contains all the preferred and non-preferred agents allowed in the categories it contains (Anlagesics, Narcotic Short; Analgesics, Narcotic Long; Neuropathic Pain; NSAIDs; and Ophtalmics, Alergic Conjuctivitis).  If a drug in these categories is not on the mandatory formulary, then it is not allowed.  However, all other categories of drugs not included in the formulary follow the generic versus brand name instructions pursuant to 19 DE Admin Code 1341, Section 4.13. 



19 DE Admin Code 1341, Section 4.13:


 4.13 Pharmacy

table of contents




Prescribed drugs are capped at the lesser of the provider’s usual charge; a negotiated contract amount; or the Average Wholesale Price (AWP) for the National Drug Code (NDC) for the prescription drug or medicine on the day it was dispensed minus twelve percent (12%) plus a dispensing fee of four dollars ($4.00) for brand name drugs or medicines, or minus twenty percent (20%) plus a dispensing fee of five dollars ($5.00) for generic drugs or medicines. If the actual charge is less than this amount, then it is the maximum allowed. Physicians dispensing drugs from their office do not receive the dispensing fee referenced above.




“Average Wholesale Price” or “AWP” means the average wholesale price of a prescription drug as provided in the most current release of the Red Book by Thomson Media or Medi-Span Master Drug Database by Wolters Kluwar Health on the day a prescription drug is dispensed or other nationally recognized drug pricing index adopted by the Health Care Advisory Panel (HCAP).

“Brand name drug” means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(c).

“Generic drug” means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(j).



Notwithstanding any other provision, if a prescription drug or medicine has been repackaged, the Average Wholesale Price used to determine the maximum reimbursement in controverted and uncontroverted cases shall be the Average Wholesale Price for the underlying drug product, as identified by its national drug code, from the original labeler.



Compounding includes the preparation, mixing, assembling, packaging, or labeling of a drug or device as the result of a practitioner-patient-pharmacist relationship in the course of professional practice. Compound drugs shall be billed by listing each drug included in the compound and separately calculating the charge for each drug, using national drug codes (NDC). When compounding, a single compounding fee of ten dollars ($10.00) per prescription shall be added to the calculated total.



As of the effective date of this Regulation, Oxycontin as well as oxycodone extended release; and Actiq, as well as transmucosal fentanyl, are not on the Preferred or Non-Preferred Medication List and may only be used with prior written approval of the employer or its insurance carrier. However, an employee on a stable dose of Oxycontin prior to the effective date of this Regulation may continue the use of this medication after the effective date of this Regulation.



The Fee Schedule created by this Regulation shall not apply to prescription drugs or medicines provided as part of treatment subject to the inpatient Fee Schedule set forth in 19 Del. C. §2322B(8).



Pursuant to this Regulation, the “Preferred Agents” and “Non-Preferred Agents” categories, as set forth on the Department of Labor (DOL) web site is hereby adopted. The Health Care Advisory Panel (HCAP) shall review on an annual basis, beginning July 1, 2014, those portions of the Preferred Drug List (PDL) referenced above.



When a brand name drug is prescribed to treat an injury for which a carrier or self-insured employer is liable, the pharmacist or medical provider dispensing the drug or medication shall substitute a preferred/generic drug pursuant to this Regulation as set forth above. A physician may prescribe and a pharmacist must dispense a non-preferred/brand name drug or medication only upon the physician’s or other authorized individual’s completion of the “Justification For Use Of Non-Preferred Medication” form, approved by the Health Care Advisory Panel and set forth on the Department of Labor (DOL) web site. A provider may prescribe a medication from the Non-Preferred Agent list if the patient has trialled the use of two preferred agents and the trials have failed due to lack of efficacy or unacceptable side effects. Preferred agent trials should be documented in the medical record.


Please call (302-761-8200) or e-mail, if you have questions concerning this message.


Donna Forrest

Medical Component Manager, Delaware Office of Workers’ Compensation

4425 N. Market St., 3rd Floor, Wilmington, DE  19802

Phone:  302-761-8200  Fax:  302-761-6601