Policy Matters Brief - May 11, 2022

May 10, 2022 · Public Policy & Regulatory Affairs Team

Illinois passes updated occupational illness legislation

Illinois House Bill 4435 passed both chambers and is currently with the Governor for action. The bill, which modifies existing code, creates a new occupational disability benefit for certain firefighters who due to a contagious staph infection – including methicillin-resistant Staphylococcus aureus (MRSA) – are impaired or unable to complete their duties. The new exemption joins a current list of occupational diseases that can qualify as a work-related disability including heart disease, tuberculosis, AIDS and hepatitis C. The bill passed both chambers with unanimous support and is expected to be signed by the Governor soon.

Tennessee updates opioid prescribing policies

With passage of Senate Bill 2465, the Tennessee legislature updates existing opioid prescribing policies, specifically related to the prescribing of opioid antagonists. Under the bill a provider, when offering an opioid prescription to a patient, shall also offer a prescription for naloxone hydrochloride or another opioid antagonist when one or more of the listed conditions are met.

The prescription is 50 or more MME of an opioid per day
An opioid is currently prescribed concurrently with a benzodiazepine
The patient presents an increased risk for overdose
The patient is at high risk of witnessing an opioid event.

The bill is currently with the Governor awaiting action and would take effect immediately upon the Governor’s signature.

New York adopts emergency telemedicine rules

The Workers’ Compensation Board (WCB) adopted superseding emergency telemedicine rules to help prevent health and safety risks through the use of social distancing. Via a notice published on April 27, 2022, the superseding emergency rules contemplate the prevalence of possible new COVID-19 variants to come and thus allow for telemedicine visits in certain circumstances when medically appropriate. The WCB will continue to work on possible permanent telemedicine rules. The emergency rules are effective for 90 days from the rule filing date April 12, 2022, or until they are replaced by a permanent rule before the end of the 90-day period.

Kentucky nullifies workers’ comp UR regulation changes and publishes emergency replacement regulation

Both chambers of the Kentucky General Assembly (legislature) voted to override the governor’s veto of Senate Bill 65.This bill:

Declares amendments to the workers’ compensation utilization review (UR) and medical bill audit regulation promulgated by the Department of Workers’ Claims (DWC) “null, void, and unenforceable”.
Prohibits the DWC from promulgating a regulation that is identical to, or substantially the same as, the amended regulation for a period through June 1, 2023.

The DWC followed the veto override and nullification of the regulation amendments with an emergency regulation. The emergency regulation, filed April 15, 2022, updates some of the content to be consistent with existing law and other regulations and adds a reporting requirement.
Note: Emergency regulations are considered as adopted and become effective upon filing.

For historical context, the DWC’s earlier amendments to the UR and bill audit regulation (now nullified) were originally proposed in February of 2021, following modifications from the public comment period. The amendments had been in question since November of 2021, when the state legislature’s Administrative Regulation Review Subcommittee found the amendments “deficient.” Subsequently, the governor determined the amendments would become effective notwithstanding the finding of deficiency and later vetoed SB 65 after its initial passage. The amendments to the regulation would have created a new DWC medical director position and modified the method by which UR appeals are handled.

The DWC plans to replace the newly-filed emergency regulation with an “ordinary” regulation after the full, required rule-making process (including a comment period). The proposed ordinary regulation is identical to the emergency regulation. A public hearing on the filed emergency regulation is scheduled for May 31, 2022, with a public hearing on the proposed permanent regulation scheduled for June 23, 2022.

Virginia amends workers’ compensation medical coverage/cap

On July 1, 2022, the signed Virginia House Bill 689 will go into effect. The Bill amends workers’ compensation medical coverage and cap provisions. The amendments:

Adds scooters to the list of medical equipment an employer is required to furnish under certain circumstances.
Increases the aggregate cost limit/cap that an employer, under certain circumstances, should cover for an injured worker’s vehicle or home modifications from $42,000 to $55,000.

The cap is to be increased annually, with the percentage of change determined by the U.S. Average Consumer Price Index as published by the U.S. Department of Labor, Bureau of Labor Statistics.

Virginia extends COVID-19 healthcare provider presumption

Virginia House Bill 932, signed April 11, 2022, extends the state’s existing COVID-19 workers’ compensation coverage presumption for healthcare providers from December 31, 2021, to December 31, 2022. This is the date by which COVID-19 causing the death or disability of a healthcare provider is presumed to be an occupational disease compensable under the law.
For more information on the various COVID-19 workers’ compensation presumption policies across the country, review the presumptions map toward the bottom of our COVID-19 Information & Resources webpage.

Virginia workers’ comp first responder cancer coverage claims time and age limited

Virginia legislation, HB 1042 and SB 562, outline the time period for filing a workers' compensation claim for certain occupational cancers. Signed on April 11, 2022, and expected to become effective July 1, 2022, the new legislation adds details for the existing law, which provides an occupational disease coverage presumption for leukemia or pancreatic, prostate, rectal, throat, ovarian, breast, colon, brain, or testicular cancer in certain first responders.
The new legislation states that:

The time period for filing a workers' compensation claim for those cancers under that presumption policy is two years after a diagnosis of the disease is first communicated to the employee or within 10 years from the date of the last injurious exposure in employment, whichever occurs first.
A claim for those cancers will also be barred if an employee is 65 years of age or older, regardless of the date of diagnosis, communication, or last injurious exposure in employment.

For more on workers’ comp presumption legislation we are tracking, visit our Legislative and Regulatory Tracker webpage (select “Workers’ Compensation” as the category and “Presumptions” as the topic in the dropdown menu).

Wisconsin Worker's Compensation Advisory Council bill enacted

Recent amendments to Wisconsin workers’ compensation law proposed by the state’s Worker's Compensation Advisory Council were recently signed into law. One amendment states that an employee is entitled to have their own observer at an employer- or insurer-requested medical or vocational expert examination. This adds to an area of law already entitling the employee to have a medical provider and translator (if applicable) of their own choosing at such an exam. The bill, AB 911, also contained several other amendments – including granting the Department of Workforce Development authority to conduct alternative dispute resolution activities for a case involving an employee who is not represented by an attorney.

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