Tex. Labor Code Section 408.028
Pharmaceutical Services


(a)

A physician providing care to an employee under this subchapter shall prescribe for the employee any necessary prescription drugs, and order over-the-counter alternatives to prescription medications as clinically appropriate and applicable, in accordance with applicable state law and as provided by Subsection (b). A doctor providing care may order over-the-counter alternatives to prescription medications, when clinically appropriate, in accordance with applicable state law and as provided by Subsection (b).

(b)

The commissioner by rule shall require the use of generic pharmaceutical medications and clinically appropriate over-the-counter alternatives to prescription medications unless otherwise specified by the prescribing doctor, in accordance with applicable state law. The commissioner by rule shall adopt a closed formulary under Section 413.011 (Reimbursement Policies and Guidelines; Treatment Guidelines and Protocols). Rules adopted by the commissioner shall allow an appeals process for claims in which a treating doctor determines and documents that a drug not included in the formulary is necessary to treat an injured employee’s compensable injury.

(c)

Except as otherwise provided by this subtitle, an insurance carrier may not require an employee to use pharmaceutical services designated by the carrier.

(d)

The commissioner shall adopt rules to allow an employee to purchase over-the-counter alternatives to prescription medications prescribed or ordered under Subsection (a) or (b) and to obtain reimbursement from the insurance carrier for those medications.

(e)

Notwithstanding Subsection (b), the commissioner by rule shall allow an employee to purchase a brand name drug rather than a generic pharmaceutical medication or over-the-counter alternative to a prescription medication if a health care provider prescribes a generic pharmaceutical medication or an over-the-counter alternative to a prescription medication. The employee shall be responsible for paying the difference between the cost of the brand name drug and the cost of the generic pharmaceutical medication or of an over-the-counter alternative to a prescription medication. The employee may not seek reimbursement for the difference in cost from an insurance carrier and is not entitled to use the medical dispute resolution provisions of Chapter 413 (Medical Review) with regard to the prescription. A payment described by this subsection by an employee to a health care provider does not violate Section 413.042 (Private Claims; Administrative Violation). This subsection does not affect the duty of a health care provider to comply with the requirements of Subsection (b) when prescribing medications or ordering over-the-counter alternatives to prescription medications.

(f)

Notwithstanding any other provision of this title, the commissioner by rule shall adopt a fee schedule for pharmacy and pharmaceutical services that will:

(1)

provide reimbursement rates that are fair and reasonable;

(2)

assure adequate access to medications and services for injured workers;

(3)

minimize costs to employees and insurance carriers; and

(4)

take into consideration the increased security of payment afforded by this subtitle.

(g)

Section 413.011 (Reimbursement Policies and Guidelines; Treatment Guidelines and Protocols)(d) and the rules adopted to implement that subsection do not apply to the fee schedule adopted by the commissioner under Subsection (f).
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1456, Sec. 6.01, eff. June 17, 2001; Acts 2003, 78th Leg., ch. 468, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.090, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 705 (H.B. 528), Sec. 2, eff. June 17, 2011.

Source: Section 408.028 — Pharmaceutical Services, https://statutes.­capitol.­texas.­gov/Docs/LA/htm/LA.­408.­htm#408.­028 (accessed Mar. 23, 2024).

408.001
Exclusive Remedy
408.002
Survival of Cause of Action
408.003
Reimbursable Employer Payments
408.004
Required Medical Examinations
408.005
Settlements and Agreements
408.006
Mental Trauma Injuries
408.007
Date of Injury for Occupational Disease
408.008
Compensability of Heart Attacks
408.021
Entitlement to Medical Benefits
408.022
Selection of Doctor
408.023
List of Approved Doctors
408.024
Noncompliance with Selection Requirements
408.025
Reports and Records Required from Health Care Providers
408.026
Spinal Surgery
408.027
Payment of Health Care Provider
408.028
Pharmaceutical Services
408.029
Nurse First Assistant Services
408.031
Workers’ Compensation Health Care Networks
408.0041
Designated Doctor Examination
408.041
Average Weekly Wage
408.0042
Medical Examination by Treating Doctor to Define Compensable Injury
408.042
Average Weekly Wage for Part-time Employee or Employee with Multiple Employment
408.0043
Professional Specialty Certification Required for Certain Review
408.043
Average Weekly Wage for Seasonal Employee
408.0044
Review of Dental Services
408.044
Average Weekly Wage for Minor, Apprentice, Trainee, or Student
408.0045
Review of Chiropractic Services
408.045
Nonpecuniary Wages
408.0046
Rules
408.046
Similar Employees, Services, or Employment
408.047
State Average Weekly Wage
408.061
Maximum Weekly Benefit
408.062
Minimum Weekly Income Benefit
408.063
Wage Presumptions
408.064
Interest on Accrued Benefits
408.081
Income Benefits
408.082
Accrual of Right to Income Benefits
408.083
Termination of Right to Temporary Income, Impairment Income, and Supplemental Income Benefits
408.084
Contributing Injury
408.085
Advance of Benefits for Hardship
408.101
Temporary Income Benefits
408.102
Duration of Temporary Income Benefits
408.103
Amount of Temporary Income Benefits
408.104
Maximum Medical Improvement After Spinal Surgery
408.105
Salary Continuation in Lieu of Temporary Income Benefits
408.121
Impairment Income Benefits
408.122
Eligibility for Impairment Income Benefits
408.123
Certification of Maximum Medical Improvement
408.124
Impairment Rating Guidelines
408.125
Dispute as to Impairment Rating
408.126
Amount of Impairment Income Benefits
408.127
Reduction of Impairment Income Benefits
408.128
Commutation of Impairment Income Benefits
408.129
Acceleration of Impairment Income Benefits
408.141
Award of Supplemental Income Benefits
408.142
Supplemental Income Benefits
408.143
Employee Statement
408.144
Computation of Supplemental Income Benefits
408.145
Payment of Supplemental Income Benefits
408.146
Termination of Supplemental Income Benefits
408.147
Contest of Supplemental Income Benefits by Insurance Carrier
408.148
Employee Discharge After Termination
408.149
Status Review
408.150
Vocational Rehabilitation
408.151
Medical Examinations for Supplemental Income Benefits
408.161
Lifetime Income Benefits
408.162
Subsequent Injury Fund Benefits
408.181
Death Benefits
408.182
Distribution of Death Benefits
408.183
Duration of Death Benefits
408.184
Redistribution of Death Benefits
408.185
Effect of Beneficiary Dispute
408.186
Burial Benefits
408.187
Autopsy
408.201
Benefits Exempt from Legal Process
408.202
Assignability of Benefits
408.203
Allowable Liens
408.0221
Request for Description of Employment
408.221
Attorney’s Fees Paid to Claimant’s Counsel
408.222
Attorney’s Fees Paid to Defense Counsel
408.0231
Maintenance of List of Approved Doctors
408.0251
Electronic Billing Requirements
408.0252
Underserved Areas
408.0271
Reimbursement by Health Care Provider
408.0272
Certain Exceptions for Untimely Submission of Claim
408.0281
Reimbursement for Pharmaceutical Services
408.0282
Requirements for Certain Informal or Voluntary Networks
408.0284
Reimbursement for Durable Medical Equipment and Home Health Care Services
408.0446
Average Weekly Wage
408.0815
Resolution of Overpayment or Underpayment of Income Benefits
408.1225
Designated Doctor
408.1415
Work Search Compliance Standards
408.1615
Lifetime Income Benefits for Certain First Responders

Accessed:
Mar. 23, 2024

§ 408.028’s source at texas​.gov