Approaching the Witching Hour
Oct 31, 2018


State lawmakers are pre-filing legislation in advance of the 2019 legislative session.  This week, we take a closer look at some of the moves making headlines as the state houses begin to come alive.  We will be following closely to see which way these measures go next session.



Bi-partisan lawmakers in the New York General Assembly introduced a measure that would compel public insurance programs, including Medicaid and workers’ compensation, to pay for medical marijuana if prescribed in accordance with state regulations. The measure would make cannabis a “prescription drug” to be included in the workers’ compensation drug formulary and medical treatment guidelines. Late last year, the New York Workers’ Compensation Board ruled that medical marijuana must be covered by carriers, as long as the claimant and the doctor complied with state law. By the way, there are at least four more ballot initiatives this year involving legalization of cannabis.



The Idaho Industrial Commission posted draft bills that would authorize coverage of post-traumatic stress disorder for first responders.  The draft legislation would declare PTSD a compensable injury for first responders who are diagnosed with the condition by a psychologist or psychiatrist, and when the event or events causing the condition were “extraordinary and unusual in comparison to the normal conditions of the particular employment."



In a similar move, the Florida Division of Workers’ Compensation formally proposed a rule that defines which injuries “shock the conscience,” for first responders to qualify for benefits if they suffer from post-traumatic stress syndrome from witnessing or treating patients who suffered “grievous bodily harm of a nature that shocks the conscience.”  The Administrative Register posted rule 69L-3.009 with specific qualifying circumstances including: decapitation, degloving, evisceration, exposure to brain, heart, intestines, kidneys, liver or lungs, and impalement.  Interested parties have until November 16 to request a public hearing on the proposed rule.



In May 2017, a Jefferson County Alabama circuit judge struck down the state’s entire workers’ compensation law as unconstitutional.  That case settled.  However, this week, a 23-member bar committee of attorneys representing claimants, insurance carriers, labor groups, and medical professionals, released proposed legislation to address a future constitutional challenge.  The draft would double the maximum weekly indemnity benefit.  Under the proposal, permanent total disability would terminate when the employee reaches two years beyond full Social Security retirement age, or age 70, or 500 weeks after the date of accident or last exposure.  In another provision, recognizing the opioid crisis, workers would have to sign pain-management agreements that outline their responsibilities.   We expect this multi-party working group will attract the attention of the state legislature to heed the court’s grim warning to repair the Act.


Opioid Legislation


President Donald Trump signed sweeping opioid legislation into law.  Last week marked the one-year anniversary since the Trump administration declared the opioid crisis a public health emergency.  The bill includes provisions aimed at promoting research to find new drugs for pain management that will not be addictive and expands access to treatment for substance use disorders for Medicaid patients.  At the bill signing, the White House also announced a host of public-private partnerships, with some of the nation’s most noteworthy  brands, to assist first responders more efficiently access critical medical records, take back medications, provide education, and answer some of the most important questions about opioids and addiction.



The opioid law contained another important passage.  It now requires the Department of Health and Human Services to report within 60 days to the Senate Commerce and House Transportation and Infrastructure Committees on the status for hair testing guidelines, the reasons for delay in issuing guidelines, and a schedule for completion of the guidelines.  Also included in the legislation are reporting requirements on the development of the Drug and Alcohol Clearinghouse and a deadline for completing work on oral fluids testing. American Trucking Associations lauded the hair-testing provisions in the legislation to create the most accurate, reliable, and failsafe drug testing methods available today.


Making Our Way Around the Country


The Nevada Division of Insurance posted a notice to claims adjusters (which also references insurance carrier company adjusters) to request an exemption from new pre-licensing education requirements.   Effective July 1, 2019, adjusters are required to complete 24 hours of continuing education prior to renewing their license.  Adjusters who have more than five years of experience or are designated as workers’ compensation experts can request an exemption to the pre-licensing education requirements through December 31st.



The Missouri Supreme Court heard oral arguments on a case to determine if the state’s Second Injury Fund (SIF) is constitutional.  As of January 1, 2014, new claims for benefits through the state’s Second Injury Fund were no longer allowed for people with permanent partial disabilities, only for those with permanent total disabilities.  Financed by a surcharge on businesses, the SIF meant to encourage those companies to hire disabled people.  After hearing the workman’s compensation case this week, the supreme court could issue its decision at any time.



The National Council of Insurance Legislators (NCOIL) is preparing its Pharmacy Benefits Manager Licensure and Regulation Model Act for publication to state legislatures for next session.  The act defines pharmacy benefit managers as entities that provide pharmacy services to health benefit plans. The earlier draft excluded workers’ compensation from the definition of health benefit plans, but the latest draft strikes out the language that appeared to exempt workers’ compensation PBMs from the model act.  The final draft is expected to be released at the NCOIL annual meeting in December.


This week, there will be a contested battle between two formidable factions that could cause civil unrest, define the course of 2018, and even strain unity at The WayNotre Dame takes on Northwestern in Evanston Saturday.  And, oh yeah, the 2018 Midterm Elections are Tuesday.  Voter turnout is expected to be very high.  If you need to locate your polling place, we’ve got you covered.   We will be tracking the year’s big races, which is, to say, all of them.  We’ll see you next week for our special post-election coverage.


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