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Policy Matters Brief June 09, 2021

June 9, 2021 · Policy Matters team

Alabama legalizes medical marijuana for qualifying conditions
Alabama is one of the latest states to legalize marijuana use for medical purposes with the signing of Senate Bill 46 in May 2021. The new law will allow the use of marijuana for treatment of certain qualifying medical conditions or symptoms of conditions if:

  • There is documentation indicating that conventional medical treatment or therapy has failed
  • Current medical treatment indicates that use of medical cannabis is the standard of care

The list of over a dozen qualifying conditions includes PTSD and “a condition causing chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or has proved ineffective.”

The language within SB 46, does not:

  • Require an insurer, individual or entity providing coverage for a medical or health care service to pay for or to reimburse costs associated with the use of medical cannabis
  • Require an employer or property and casualty insurer to reimburse an individual for costs associated with the use of medical cannabis.
  • Change or otherwise impact an employer's right to deny, or establish legal defenses to, the payment of workers' compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test

As has been the case with other states, it will take time for the state’s newly created Medical Cannabis Commission to implement the new law. The Commission is to adopt rules to implement, administer and enforce the law in a timely manner that allows regulated entities like cultivators and dispensaries to apply for licensure by September 1, 2022.

California DWC proposes adoption of anxiety disorder treatment guideline
The California Division of Workers’ Compensation (DWC) has proposed updates to their Medical Treatment Utilization Schedule (MTUS) – their treatment guidelines. The proposal incorporates the current American College of Occupational and Environmental Medicine (ACOEM) Anxiety Disorders module of the Workplace Mental Health Guideline into the Clinical Topics section of the MTUS.

The Workplace Mental Health Guideline addresses workplace mental health and will add a module on anxiety disorders (following modules on Post-traumatic Stress Disorder and Acute Stress Disorder).  Adding the anxiety disorders module helps ensure recommendations for evaluating and managing anxiety disorders represent current evidence-based standards of care.

A conference call public hearing is scheduled for June 11, 2021, where the public can provide comment. More information on this proposed rule-making can be viewed here.

Missouri extends firefighters cancer presumptions
The Missouri Legislature recently passed SB 45, which modifies and extends certain cancer presumptions for firefighters who:

  • Are paid employees or volunteer firefighters
  • Have been assigned to at least five years of hazardous duty
  • Were exposed to recognized carcinogens
  • Were assigned to hazardous duty as a firefighter within the previous 15 years
  • Are not seventy years or older at the time of the cancer diagnosis

SB 45 also changed the existing firefighters’ presumption pool regarding payment and treatment of a work-related illness. The bill passed both chambers of the legislature and now awaits action by the Governor.

Montana legislation opens up physician dispensing – but not for workers’ comp
Montana SB 374, signed into law in May, extends permission of physicians to dispense medications to some of their patients by following certain conditions; whereas, previously the state only allowed the physician to dispense for certain exceptions.

The conditions to permit physicians to dispense include:

  • Registration with the Board of Pharmacy
  • Offer patients the choice to fill the prescription by the physician or any pharmacy
  • Not dispensing a controlled substance

Notably, the legislation will still not permit dispensing to workers’ compensation patients unless it is for the existing exceptions under the law including:

  • Dispensing in an emergency
  • Administration of a unit dose of a drug by or under the supervision of a medical practitioner
  • Dispensing whenever there is no community pharmacy available to the patient
  • Dispensing occasionally, but not as a usual course of doing business
  • Dispensing drug samples

SB 371 is scheduled to become effective October 1, 2021.

Proposed Montana workers’ comp treatment guidelines include traumatic brain injury updates
The Montana Department of Labor and Industry has proposed adoption of the Montana Utilization and Treatment Guidelines, 7th Edition and the April 2021 edition of the ODG Drug Formulary for prescriptions written on or after July 1, 2021. A public hearing on this will be held on June 11, 2021.

The proposed updates to the treatment guidelines will adopt the newly-proposed mild traumatic brain injury and moderate/severe traumatic brain injury guidelines, which will replace the existing single traumatic brain injury guideline and removing the eye injury guideline. More on the treatment guidelines can be viewed here.

Drug Formulary update

As the Department is required by law to annually adopt a drug formulary as part of the treatment guidelines, the proposed update for the ODG drug formulary has minimal practical effect, and existing regulations already state that the most current monthly version of the adopted formulary should be used. More on the formulary can be viewed here.

New York Workers’ Comp Board delays OnBoard, Drug Formulary application and DMEPOS fee schedule
On May 24, 2021 the New York Workers’ Compensation Board (WCB) announced a delay of OnBoard-Limited Release via bulletin 046-1408. In delaying the rollout of OnBoard-Limited Release, the WCB has in effect delayed implementation of:

  • Electronic prior authorization requests (PARs) for medical services;
  • Durable Medical Equipment, Prosthetics, Orthotics and Supplies DMEPOS fee schedule changes previously adopted; and
  • Application of the Drug Formulary to all “refills and renewals”

The original implementation date for electronic PAR processes, the DMEPOS fee schedule and the Drug Formulary was set to be June 7, 2021. The WCB Chair did not provide a specific updated/delayed implementation date at this time but rather stated that a new effective date will be later this summer to coincide with an updated launch of OnBoard-Limited Release.

Texas passes COVID presumption bill for first responders and others
The Texas Legislature recently passed SB 22, which provides a COVID-19 presumption for various first responders, EMTs, peace officers, firefighters and other detention officers. The changes to the existing Labor Code provides that a detention officer, custodial officer, firefighter, peace officer or EMT who suffers from severe respiratory syndrome coronavirus 2 (COVID-19) that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment.

The injured person is covered if they:

  • Were employed in an area designated in a disaster declaration by the governor or other disaster declaration related to COVID-19
  • Contract the disease during the disaster declared by the Governor

The bill also requires the injured person to secure a positive diagnosis by a healthcare provider or a positive COVID-19 test to qualify under the presumption. The bill is currently with the Governor awaiting action. 

Proposed updates to Virginia workers’ comp medical fee schedule
The Virginia Workers’ Compensation Commission biennial Medical Fee Schedule review proposes to increase maximum fees by approximately 5.7% to account for two years of medical inflation. Various CPT and HCPCS codes are also proposed to be removed or added.

The Draft 2022 Medical Fee Schedule and related documentation are available on the Commission’s website for review and public comment. The public comment period will end June 21, 2021. The scheduled review timeline can be viewed here.

Washington workers’ comp COVID-19 presumption bills signed
Two bills establishing workers’ compensation presumptions for COVID-19 were signed in May: SB 5115 for “frontline employees,” and SB 5190  for health care employees.

Both bills establish that, for the specified employees, there exists a prima facie presumption that any infectious or contagious diseases that are transmitted through respiratory droplets or aerosols, or through contact with contaminated surfaces and are the subject of a public health emergency are considered occupational diseases during a public health emergency.

The employee must provide verification to the Department of Labor and Industry and the self-insured employer that they have contracted such a disease, and the presumption may be rebutted. “Frontline employee” is defined by SB 5115 broadly to include first responders, food processing workers, mass transportation workers, retail workers and more.

The Department has also posted frequently asked questions on the new presumptions. To learn more on COVID-19 presumptions across the country, we encourage review of our presumptions map.


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