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Policy Matters Brief - February 28, 2024

February 28, 2024 · Public Policy & Regulatory Affairs Team

California issues correction for drug formulary

On February 15, the California Division of Workers’ Compensation (DWC) issued an order updating the Medical Treatment Utilization Schedule (MTUS) Drug List, based on revised American College of Occupational and Environmental Medicine (ACOEM) Shoulder and COVID-19 Guidelines. DWC posted a revised MTUS Drug List v.11.1 to correct two technical errors in the listing of brand name examples, including properly addressing “diclofenac epolamine” identified as Flector and “fluvastatin sodium er” identified as “Lescol XL”. The updated MTUS Drug List v.11.1 can be accessed on the DWC MTUS drug formulary webpage.

Kentucky bills would expand workers’ comp “physician” definition to include out-of-state providers, provide mental-only claim coverage for educators, and permit civil action for injuries resulting from an employer-required vaccine

Kentucky House Bill 401 would (if passed and signed into law) expand the overall definition for "physician" (which includes surgeons, psychologists, optometrists, dentists, podiatrists, osteopaths, and chiropractors) in the state workers’ comp law to include physicians with a license issued by any state, commonwealth, or district of the United States. The current law applies only to physicians licensed by Kentucky. This expansion of the definition would have implications for providers who prescribe and treat injured workers, as well as perform certain utilization review functions. HB 401 was introduced in late January, passed the House in mid-February, and is pending in the Senate.

Another Kentucky bill, House Bill 568, introduced on February 15, would (if passed and signed into law) provide that if an educator suffers a psychological, psychiatric, or stress-related change not directly resulting from a physical injury but is the consequence of a work-related event or cumulative work-related stress, then that change shall be an injury arising out of employment if the preponderance of evidence demonstrates that the work-related event or cumulative work-related stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average educator and some other event was not the proximate cause of the change. The bill excludes coverage if the change resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer. Additionally, if an educator is diagnosed with PTSD by a qualified mental health professional within three years of the last active date of employment, there is a rebuttable presumption that the PTSD is considered an injury covered under the law.

One other recently introduced Kentucky bill, Senate Bill 182, would (if passed and signed into law) require an employer that obliges employees to be immunized to grant exceptions for a sincerely held religious belief against immunization or (in the written opinion of a health care provider) the immunization would be injurious to their health. Of note for workers’ compensation is that the bill also would add a statement that notwithstanding provisions of the law related to workers’ compensation being the exclusive remedy for injuries, employees suffering an adverse reaction to an immunization required as a condition of their employment may claim compensation under the workers’ compensation law and also maintain a civil cause of action. The amount of compensation paid under workers’ comp would be credited against the amount received in the civil action. If the amount of workers’ comp is larger than the amount received in the civil action, the amount of damages less the employee's legal fees, costs, and expenses in the civil action should be credited against the workers’ comp amount.

Wisconsin workers’ comp bills would require a medical fee schedule and amend PTSD coverage for first responders

Two Wisconsin workers’ compensation companion bills introduced in early February would (if passed and signed into law) require the adoption of a medical fee schedule and amend PTSD coverage for first responders. The bills, Senate Bill 992 and Assembly Bill 1074, are based on “agreed upon” proposals approved by the state’s Council on Workers’ Compensation (also referred to as the Worker's Compensation Advisory Council) in late November. The Council advises the Department of Workforce Development (DWD) and Legislature on policy matters and provides a formal vehicle for labor and management representatives to recommend changes in the law.

The medical fee schedule provisions would also require the DWD to adopt a medical fee schedule that divides the state into five regions and sets rates at 110% of the sum of what it defines as the average payment and the average copayment, coinsurance, and deductible payment for the service. These average amounts would be determined by discerning how much group health plans and self-insured health plans pay, and the average copayment, coinsurance, and deductible payment made by persons covered under those plans for each service included in the schedule based on payment data obtained from the Wisconsin Health Information Organization, the Workers Compensation Research Institute, health insurers, plan sponsors, and other sources determined by the DWD “to be credible.” The employer’s or insurer’s liability would be the lowest of the fee schedule amount, any fee agreed to by contract, or the provider's actual fee. The bill language requires the DWD to adjust the fees for consumer price index, and DWD is to redetermine the fees using the prescribed procedures at least every two years. It also states that the DWD may not implement the initial fee schedule or revise it unless approved by the Council. It is important to note that existing law already prescribes a pharmacy fee schedule that these bills would not change. However, medical providers and services currently have no specific fee schedule and disputes are determined by the DWD based on certified databases of provider fees.

Under current law, an injured emergency medical responder, emergency medical services practitioner, or volunteer or part-time firefighter who does not have an accompanying physical injury must demonstrate a diagnosis based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by all employees in order to receive worker's compensation benefits for PTSD. Under additional provisions in these bills, those specific first responders would not be required to demonstrate a diagnosis based on that standard and instead must demonstrate a diagnosis based on the same standard as law enforcement officers and full-time firefighters. Also under the bill, they would be restricted to compensation for a mental injury not accompanied by a physical injury resulting in a diagnosis of PTSD three times in their lifetime irrespective of a change of employer or employment in the same manner as law enforcement officers and full-time fire fighters.

New York updates OnBoard provisions

The New York Workers’ Compensation Board (WCB) announced new enhancements to the OnBoard prior authorization (PAR) system specifically tailored to health care providers. The enhancements relate to provider “delegate” PAR submissions, making it easier for providers to submit and handle PAR requests. In its notification, the WCB stated that health care providers will no longer be required to submit a PAR drafted by delegates and that these delegates have the ability to draft, attest to, and fully submit a PAR in OnBoard. As of February 8, delegates were able to draft and submit PARs; escalate Medication PARs to Level 2 Review; and continue to escalate PARs to Level 3 for Medical Director’s Office review. Information on these enhancements can be found here.

Hawaii looks to expand cancer presumptions

A bill recently filed in the Hawaii State Legislature (if passed and signed into law), would expand certain cancer presumptions under workers compensation for female firefighters. HB 1889 would expand the cancer presumption for female firefighters to include coverage for breast cancer and cancer of the female reproductive organs. The bill states that several prominent studies indicate that female firefighters have higher occurrences of certain cancers related to workplace exposure that do not occur in the general population. Overall, the bill will provide broader coverage and presumptive medical coverage for female firefighters who become ill. The bill can be found here.

Several state legislatures introduce workers’ comp firefighter coverage and presumption bills

Several other states have pending legislation addressing special workers’ compensation coverage provisions for firefighters. Many of these establish or expand “presumptive” coverage when a firefighter is diagnosed with certain forms of cancer or cardiovascular conditions. Alaska, Arizona, Maryland, and West Virginia are considering similar legislation. And a rather unique bill in Virginia (House Bill 274) would presume that infertility in firefighters under certain circumstances is covered.

For more information, including current status, on these and other bills related to presumptions, view our Legislative and Regulatory Tracker (select “Presumptions” as the Topic in the dropdown menu). The interactive map allows you to further narrow legislation down by state.

New Mexico resolution calls for study on treatment with psilocybin

A resolution passed by the New Mexico Senate in mid-February requests the state’s Department of Health to study and evaluate the efficacy of psilocybin-based therapeutic treatments and the establishment of a program allowing the use of psilocybin mushrooms for therapeutic medical treatments, including the necessary statutory or regulatory framework for developing such a program. As part of the rationale for this study, the resolution cites research conducted at several universities and institutions suggesting that psilocybin can relieve major depressive disorder symptoms with supportive psychotherapy. Psilocybin is a chemical obtained from certain types of fresh or dried mushrooms (also known as magic mushrooms, mushrooms, and shrooms). As noted in the resolution, some other states have recently enacted policies facilitating the use of psilocybin-based treatments – including neighboring Colorado. This resolution is also one of several examples of proposed policy measures in several states calling for additional studies or expanded access to treatment with psilocybin. Last year, the FDA published its first draft guidance presenting considerations for designing clinical trials for psychedelic drugs, including psilocybin.

Additional Optum resources:

For more information on these policy developments and others we have been tracking this year, be sure to visit our Legislative and Regulatory Tracker. Bills or regulations can be filtered by insurance line, topic, status and jurisdiction.

If you have questions on these or any other public policy developments, please contact our team at OptumWC.PolicyMatters@optum.com.

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