Policy Matters Brief August 31, 2020

Federal COVID legislation related to employer liability

Recently introduced legislation in the U.S. Senate would temporarily limit COVID-19 liability for employers who comply with public health guidelines and who are not acting with “gross negligence.”  The legislation, known as the ‒ Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy (SAFE TO WORK) Act (S. 4317) ‒ was introduced the week of July 27, 2020. 

The bill aims to provide liability protection to employers and establishments that employ frontline workers such as teachers, doctors and nurses, among others.  Additionally, the bill would limit liability from personal injury brought against businesses, schools, colleges, nonprofit organizations or churches, effective until October 1, 2024.  The bill is currently in the Senate Judiciary Committee and can be found here. 

Delaware court rules on medical marijuana usage for work injury

The Delaware Superior Court recently addressed medical marijuana treatment for a workers’ compensation claim.  The injured person was treated for chronic pain resulting from the work-related injury and received physical therapy, prescription muscle relaxers and opioids. These treatments continued for an extended period of time with little to no relief, leading to a discussion about using medical marijuana. 

In 2019, the injured person filed to receive compensation for medical marijuana utilized to treat the injury, which was denied by the Industrial Accident Board (IAB).  Upon appeal to the Delaware Superior Court, the injured person claimed usage of medical marijuana was reasonable and necessary, but the Superior Court upheld the IAB ruling stating that Delaware workers’ compensation statutes governed – not medical marijuana laws – thus treatment for a work-related injury utilizing medical marijuana was not reasonable and necessary.  The case can be found here.

Alaska committee developing updates to workers’ comp fee schedules
The Alaska Workers’ Compensation Medical Services Review Committee is reviewing potential updates to existing medical fee schedules. Included among proposed changes is modification of reimbursement for compounded and “mixed” drugs. Draft language states these medications would be limited to medical necessity and must be FDA-approved combinations. Reimbursement would be tied to the lowest cost generic NDC for each ingredient and/or what has been termed a rate “comparable to prepaid or private healthcare plans in the community.” Draft changes are a work in progress and still subject to committee review and eventual rule-making and can be found here.

Ohio BWC pharmacy rules updated
The Ohio Bureau of Workers’ Compensation (BWC) recently adopted multiple rule changes related to BWC pharmacy reimbursement and coverage – all effective September 1, 2020. Ohio is a monopolistic state for workers’ comp, but employers are permitted to self-insure their claims. These rules focus mostly on state fund (BWC) reimbursement and coverage. The changes include updates to the BWC’s drug formulary, first fill coverage, opioid utilization and medication discontinuation. Self-insuring employers may require prior authorization for medications as required by the BWC, but they are not mandated to do so. A summary of changes can be viewed in one of the BWC’s latest provider updates here.

Oregon WCD opens up medical rules for review, soliciting feedback
The Oregon Workers’ Compensation Division (WCD) has opened up various medical rules for discussion as part of a planned rulemaking advisory committee meeting. The following rules are to be reviewed:

• OAR 436-009, Oregon Medical Fee and Payment
• OAR 436-010, Medical Services
• OAR 436-015, Managed Care Organizations

This is an annual process WCD goes through when contemplating changes or updates to regulations. At this point, they are soliciting feedback from stakeholders to develop a list of issues and possible rule amendments for committee discussion. WCD has a “Possible Rule Issue Form” that can be used to submit topics for the committee agenda. Stakeholders can submit the form and request to be part of the committee meeting by emailing Fred Bruyns (WCD policy analyst/rules coordinator) at fred.h.bruyns@oregon.gov. WCD requests agenda items be submitted by September 15.