By Ian Kea, IWP Legislative Analyst-Government Affairs Department

2023 is here, and with it, a new opportunity for legislators, regulators, and industry stakeholders to address issues in the workers’ compensation system. As covid related legislation levels out, state legislatures will be afforded more time to focus on other topics in the new year. Nationwide issues for discussion in 2023 include the CDC’s latest opioid guidelines and mental health presumptions. Last year, legislators prioritized electronic prescribing, telehealth, and presumption frameworks. As several states acted quickly to ensure telehealth laws were up to date, legislation on this issue may wind down a bit. However, e-prescribe mandates and mental health presumptions are anticipated to work their way over into 2023.

Continued Controversy Over the Latest CDC Opioid Guidelines

Practitioners and clinical researchers from institutions such as Massachusetts General Hospital, Harvard Medical School, UCLA, and University of Alabama Medical School are among those who believe the CDC’s revised guidance allows for flexibility to treat patients on an individualized, case-by-case basis. Supporters argue the agency “corrects” previous agency guidance in 2016 that inadvertently cut off opioid access to those facing elevated levels of pain, including those with cancer and chronic illnesses. On the other hand, skeptics such as Dr. Ken Scheppke, Florida’s Deputy Health Secretary, view the newest guidelines as “soft” on opioids believing the 2016 guidelines necessary to mitigate inappropriate prescribing habits. CDC revisions include maximization of non-opioid regimens before considering opioid prescription among most patient populations, removing strict dosage limits, and emphasizing patient-centered “lowest effective dosages” when utilizing an opioid. Most states proposed opioid-related legislation following the release of the 2016 guidance. The latest recommendations are expected to also bring forth legislation in statehouses.

Mental Health Presumptions 

A 2021 Harvard Business Review affiliated survey revealed that 76 percent of U.S. workers in their sample acknowledged one or more symptoms of a mental health condition in the past year, a 27 percent increase since 2019. Unfortunately, workers’ compensation mental injury claims face their fair share of challenges as several states require an accompanying physical injury to be present to qualify for a compensable mental injury, even for first responders. In Florida, post traumatic syndrome (PTSD) presumptions for first responders were repeatedly watered down by the court system. So much so that the state CFO Jimmy Patronis intervened on the matter by issuing a rare amicus brief last year emphasizing his belief that the courts decisions are “contrary to the plain and unambiguous language of the statute and ignores the legislature’s intent to increase coverage for mental or nervous injuries.” When the state legislature reconvenes on January 11th, lawmakers may seek to clarify existing PTSD presumptions to ensure access for first responders suffering from mental health disorders.

Electronic Prescribing

As of 2023, 35 states adopted electronic prescribing mandates. It is approximated that 70% of the U.S. population currently resides in a state where requirements for electronic prescribing exist. E-prescribing is well known to help with tracking prescriptions, patient history, and improving medication adherence. While most states require e-prescribe for controlled substances only, a small set of states, including Florida, mandate all prescriptions be submitted through e-prescribe software. Tracking all prescription medications by electronic means is likely to be considered by some states in the 2023 legislative session.

Florida Spotlight: Attorney Fees 

The State Offices of the Judges of Compensation Claim’s latest report indicates that insurers, not injured workers, are driving up legal fees in workers’ compensation. Defense attorney fees increased by 5.6 percent for the 2021-2022 fiscal year. Meanwhile, plaintiff fees declined by nearly two percent. A 2016 State Supreme Court Decision allowed for attorney fees to not adhere to strict caps. However, reinstating caps may be a topic up for discussion as ideological changes to the state supreme court accompanied by a “stay tuned” memo from the state senate president could prompt talks on the subject.

For most states, the legislative session will commence in mid-January and adjourn in late spring. With the midterm elections of 2022 in the rear-view mirror, legislatures are expected to be more active than in prior sessions. Nevertheless, shifting priorities, new leadership, and political positioning may alter the volume of legislation under consideration as the legislative season plays out. To keep up with the latest in workers’ compensation follow our weekly blog.