New “Hot-Button” Laws in 2018
It is common for the legislature to respond to growing political and societal concerns by enacting new laws related to these sensitive, hot-button issues. The new laws taking effect in 2018 are no exception, as the legislature has specifically taken on serious issues involving domestic terrorism, the nation’s opioid epidemic, and immigration. While these are prominent issues across the country, Californians have felt their impacts harder than many. Below are some of the newly enacted laws to look out for in 2018.
Domestic Terrorism and Labor Code section 4600.05:
One of the most prominent hot-button issues in the political and legislative arenas is domestic terrorism. While terrorism- both domestic and abroad- has been the catalyst for the enactment of many laws, the December 2, 2015 terrorist attack at Inland Regional Center in San Bernardino prompted the legislature to more closely address laws related to the effects of domestic terrorism within the California workers’ compensation system.
In response to the mass shooting in San Bernardino, which killed 14 County employees and injured over 20 others, section 4600.05 was added to the Labor Code. Effective January 1, 2018, § 4600.05 reads:
(a) An employer, as defined in Section 3300, shall provide immediate support from a nurse case manager for employees injured by an act of domestic terrorism, as defined in Section 2331 of Title 18 of the United States Code, whose injuries arise out of and in the course of employment, to assist injured employees in obtaining medically necessary medical treatment, as defined by the medical treatment utilization schedule adopted pursuant to Section 5307.27, and to assist providers of medical services in seeking authorization of medical treatment.
(b) (1) This section shall apply only if the Governor has declared a state of emergency pursuant to subdivision (b) of Section 8558 of the Government Code in connection with the act of domestic terrorism.
(2) Upon the issuance of a declaration pursuant to paragraph (1), an employer that has been notified of a claim for compensation arising out of the acts that resulted in the declaration shall provide a notice within three days to the claimant advising the claimant of medically necessary services provided pursuant to subdivision (a). In the case of a claim for compensation subject to this section that is filed after the declaration, the employer shall provide the notice to the claimant within three days. The notice shall be in the form adopted by the administrative director pursuant to subdivision (d).
(c) This section shall not alter the conditions for compensability of an injury, as described in Sections 3208.3 and 3600.
(d) The administrative director shall adopt regulations to implement this section, including, but not limited to, the definition of a nurse case manager’s qualifications, the scope and timing of immediate support from a nurse case manager, and the contents of the notice that employers shall provide to claimants.
Initially, the proposed bill intended to exempt applicants from the Utilization Review or Independent Medical Review processes, as well as apply retroactively to injuries occurring prior to January 1, 2018, but those provisions of the bill were not signed into law. It is unclear whether future events will warrant those provisions be enacted at a later date. In the meantime however, when handling claims involving acts of domestic terrorism, it is important to note the current three-day notice requirement and ensure an applicant is assigned a nurse case manager to assist in obtaining necessary medical treatment.
California’s Response to the Opioid Epidemic:
In response to the opioid epidemic currently taking its toll on the nation, the California Medical Association sponsored Assembly Bill 1048, which proposed partial fills on schedule II prescription drugs, including Oxycontin- the drug said to be fueling the nation’s opioid epidemic. In 2016 alone, there were nearly 2,000 opioid-related overdose deaths in California and countless more emergency room visits due to the drug.
Under prior law, partial fills of schedule II drugs were only permitted for patients living in skilled nursing facilities.
The new law, which adds section 1367.43 to the Health and Safety Code and section 4052.10 to the Business and Professions Code, goes into effect July 1, 2018 and allows for partials refill at the request of the patient or medical provider, without requiring the patient be living in a skilled nursing facility. Under the new law, more than one partial refill is allowed, but the entire prescription must be dispensed within a 30-day period, and labor costs will be associated with each partial refill.
The legislative intent behind the partial fill law is to combat opioid abuse by attempting to reduce the availability of extra or unused medication, which studies show are often misused and abused, often by the patient or members of the patient’s family. Consistent with the legislative intent, the partial fill law may be a beneficial tool in the workers’ compensation system involving claims with applicants suffering from opioid abuse issues or exhibiting drug-seeking behavior. More closely monitoring an applicant’s use of opioid medication may assist in preventing the misuse of it as well.
In further effort to combat the growing opioid epidemic, Health and Safety Code section 1165.1 was enacted, allowing medical providers to use third party software to access the state-run CURES system, which eases a provider’s ability to monitor a patient’s prescription drug use/abuse. Permitting third party software to access CURES makes a patient’s prescription information more readily accessible to providers in order to track applicant’s prescriptions across the industry more easily. Ideally, this will limit “doctor shopping” related to opioid and prescription medication abuse.
In response to the growing immigration debate and California’s fight to remain a sanctuary state, Senate Bill 54 was enacted into law, adding Government Code sections 7282 and 7282.5 and repealing Health and Safety Code section 11369, which govern the duties of local law enforcement agencies when cooperating with federal immigration authorities. While the majority of the changes to these laws relate to criminal law, SB 54 requires the state Attorney General to draft model policies for state agencies, including the Division of Workers’ Compensation (DWC), aimed at limiting assistance with the federal government’s immigration enforcement. In other words, policies will soon be in effect mandating that state agencies, including the Workers’ Compensation Appeals Board, are recognized “safe places” under California’s sanctuary state laws. These laws limit local agencies’ cooperation with the federal government’s efforts to enforce immigration laws.
The Attorney General has until October 1, 2018 to develop the policy, which must adhere to California’s sanctuary state status. It is yet to be seen what, if any, impact this law will have on a system that already entitles injured workers to benefits despite their legal status, but it is a hot-button issue to follow this year.