Step It Up (Looking at You, Feds)
May 9, 2018


Federal workers' compensation programs fall far behind regulations established by states and the private sector for opioid prescriptions, resulting in an increased likelihood for abuse and addiction, according to experts before the House Committee on Education and the Workforce. According to testimony by WCRI and the Congressional Research Service, more needs to be done to combat the risk of federal workers misusing opioids and the federal government should look at states that are changing workers' compensation programs to prevent opioid abuse.




The committee held a hearing yesterday examining the implications of the opioid epidemic for the Department of Labor's (DOL) workers' compensation program for federal employees under the Federal Employees' Compensation Act (FECA). The FECA program provides compensation and treatment for federal employees that were injured on the job. In 2017 alone, FECA provided $2.9 billion in benefits to more than 218,000 civilian federal employees for work-related illnesses with $900 million in medical and rehabilitation services.



The DOL Office of Workers' Compensation Programs (OWCP) released new regulations in 2017 that limit initial opioid prescriptions to 60 days. Any opioid prescription beyond the initial 60 days requires a letter of medical necessity from the injured worker's physician and authorization from OWCP. However, most opioid state guidelines only allow a seven-day initial prescription, with some limiting it to three or four days. At least 28 states have enacted legislation with some type of limit, guidance or requirement related to opioid prescribing.



In response to the opioid epidemic, the Centers for Disease Control and Prevention (CDC) released the Guideline for Prescribing Opioids for Chronic Pain in March 2016. For treating acute pain, the guideline specified that a prescription for three days or less will often be sufficient and more than a seven-day supply will rarely be needed. Congress is looking at legislation that would establish a national, three-day initial opioid prescribing limit for acute pain. We owe it to our federal injured workers to aggressively pursue appropriate opioid guidance consistent with federal research. (Getting off my soapbox now.)


Fire and Rain


In a closely watched case for its potential implications for universities nationwide, Massachusetts's highest court ruled that the Massachusetts Institute of Technology (M.I.T.) cannot be held responsible for the death of a graduate student who killed himself on campus in 2009. The case examined whether colleges and universities have a duty to protect students from harming themselves. The court found universities "are not responsible for monitoring and controlling all aspects of their students' lives" and there is universal recognition that universities no longer stand in place of parents.



The court did carve out limited circumstances in which universities could bear some responsibility for protecting their students. In its ruling, the court found a school can only be held responsible when it either knew that a student had attempted suicide while enrolled, or shortly before entering, or was aware the student had said they plan to kill themselves. In those limited cases, the school must take "reasonable measures" to help the student, which would include initiating a suicide prevention protocol, getting the student medical care, or contacting emergency medical services.


Making Our Way Around the Country


Following the publication of the 2017 final rule on occupational exposure to beryllium, the Occupational Safety and Health Administration (OSHA) published a direct final rule (DFR) clarifying provisions affecting trace amounts of beryllium in general industry workplaces. In response to industry concerns, the DFR amends the definition of beryllium work area to mean any work area containing a process or operation that can release beryllium and that involves materials that contain at least 0.1% beryllium by weight, and where the employees are, or can reasonably be expected to be exposed to airborne beryllium at any level or where there is potential for dermal contact with beryllium. The DFR will become effective July 4, 2018.



A Superior Court judge ruled that coffee sold in California must carry cancer warnings. A nonprofit group sued about 90 coffee companies under a state law that requires warnings on products and in places where chemicals that can cause cancer are present. Coffee contains the chemical acrylamide but the industry argued it was at harmless levels and should be exempt from the law since it's a natural derivative of the cooking process. The final ruling allows the Council for Education and Research on Toxics to seek a permanent injunction that would either lead to warning labels or a commitment by the industry to remove the chemical from their product. If a settlement isn't reached, civil penalties can be as high as $2,500 per person exposed each day since the suit was filed in 2010. Yikes. The coffee industry is considering its options, including appeals.



The 5th U.S. Circuit Court of Appeals has vacated the entire Department of Labor (DOL) fiduciary rule. The DOL let an April 30 appeal deadline pass, leading AARP and the states of California, New York and Oregon to seek standing as defendants in the case. Last week, the 5th Circuit Court of Appeals denied the motions. In response, the DOL announced a temporary enforcement policy stating it will continue to rely on the regulation for now to govern advice in retirement accounts. Under the temporary enforcement policy, financial advisors can use the best-interest-contract exemption and other prohibited transaction exemptions in the fiduciary rule as long as they made a good faith effort to adhere to the regulation's impartial conduct standards.



Celebrate Teacher Appreciation Week and thank a teacher. For the last few years, I've reached out to my different elementary and law school teachers to thank them and tell them how they've affected my life. This year – middle school. Highly recommend it.


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