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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 12/18/2018
The West Virginia Opioid Reduction Act and Workers’ Compensation

In the spring 2018 session of the West Virginia Legislature, the West Virginia Opioid Reduction Act was passed. The law went into effect on June 7, 2018. The Act is not a workers' compensation statute, per se, meaning that it does not state that it applies to workers' compensation, but it does not expressly exempt workers' compensation from its coverage either.

Implications of the West Virginia Opioid Reduction Act on Workers' Compensation Coverage Requirements

The intent of the West Virginia Opioid Reduction Act is to facilitate opioid reduction in West Virginia by introducing guidelines for treatment that minimize medical reliance on prescription pain medication. However, the mandates of the law may have implications for other medical insurance otherwise governed by state regulations, such as workers' compensation.

Provisions of the West Virginia Opioid Reduction Act

The 2018 WV opioid statute contains the following provisions, to name a few:

  • A patient can give an advanced directive to a care giver that he or she shall not be given or prescribed an opioid
  • Prescribers must inform patients of the risks of any prescribed opioid and must inform the patient of the right to fill the prescription at a lesser quantity
  • Emergency rooms and urgent care facilities can prescribe opioids to an adult for a maximum of four days
  • For a minor, opioids can only be prescribed for three days, and a doctor must inform parents or guardians of the risks of the medication
  • Dentists and optometrists may only prescribe opioids for a maximum of three days
  • Initial opioid supply cannot exceed seven days and must be at the lowest dose possible for the condition
  • There are documentation requirements that apply to the prescribing provider regarding the patient's medical history, physical exam, and treatment plan, and the provider must also access the patient's history in the Controlled Substances Monitoring Program Database
  • There must be a physical exam every 90 days
  • There must be a narcotics contract for any Schedule II prescriptions exceeding seven days

Workers' Compensation and the WV Opioid Reduction Act

Alternative therapies are one area where the West Virginia Opioid Reduction Act and workers' compensation intersect. West Virginia has a comprehensive medical management rule set forth in Title 85, Section 20 of the Code of State Rules, known informally as "Rule 20."

Rule 20 is not a statute; it is an administrative regulation, so, while it has the effect of law, if it directly conflicts with a statute, the courts will generally hold that the statute trumps the rule.

Rule 20 contains very specific limitations on physical medicine and expressly bars acupuncture as a covered workers' compensation therapy. The rule also sets forth a wide array of treatments that require pre-authorization.

A recent decision from the Workers' Compensation Office of Judges authorized acupuncture as a covered therapy, citing the WV opioid statute. In its efforts toward opioid reduction in West Virginia, the Act contains the following provisions (W. Va. Code § 16-54-8) that may conflict with various provisions of Rule 20:

a. When patients seek treatment for any of the myriad conditions that cause pain, a health care practitioner shall refer or prescribe to a patient any of the following treatment alternatives, based on the practitioner's clinical judgment and the availability of the treatment, before starting a patient on an opioid: physical therapy, occupational therapy, acupuncture, massage therapy, osteopathic manipulation, chronic pain management program, and chiropractic services, as defined in § 30-16-3 of this code.

b. Nothing in this section should be construed to require that all of the treatment alternatives set forth in § 16-54-8(a) of this code are required to be exhausted prior to the patient receiving a prescription for an opioid.

c. At a minimum, an insurance provider who offers an insurance product in this state, the Bureau for Medical Services, and the Public Employees Insurance Agency shall provide coverage for 20 visits per event of physical therapy, occupational therapy, osteopathic manipulation, a chronic pain management program, and chiropractic services, as defined in § 30-16-3 of this code, when ordered by a health care practitioner to treat conditions that cause chronic pain.

d. A patient may seek treatment for physical therapy, occupational therapy, osteopathic manipulation, a chronic pain management program, and chiropractic services, as defined in § 30-16-3 of this code, prior to seeking treatment from a practitioner and a practitioner referral is not required as a condition of coverage by the Bureau for Medical Services, the Public Employees Insurance Agency, and any insurance provider who offers an insurance product in this state. Any deductible, coinsurance, or co-pay required for any of these services may not be greater than the deductible, coinsurance, or co-pay required for a primary care visit.

e. Nothing in this section precludes a practitioner from simultaneously prescribing an opioid and prescribing or recommending any of the procedures set forth in § 16-54-8(a) of this code

Again, acupuncture is expressly NOT covered in a workers' compensation claim pursuant to W. Va. C.S.R. § 85-20-19.3. However, the Office of Judges held that the WV opioid statute trumps the rule, and any therapies otherwise prohibited by Rule 20 but authorized by the Act are covered.

Potential Intersection of the Opioid Reduction Act and Workers' Compensation

With specific regard to acupuncture, it must be noted that the Opioid Act states in section 16-54-8(a) that a treatment provider must "consider" acupuncture and other therapies as an alternative to opioids, and section 16-54-8(c) states that any insurance provider must cover up to 20 visits of all the alternative therapies, but acupuncture is NOT listed in section (c) as therapy which must be covered by the insurance.

The law might not require coverage of acupuncture specifically, but this will likely have to be hashed out through appeals. The Office of Judges' decisions are not binding legal precedent, but the recent decision may very well indicate how the Office of Judges will rule on future protests in the absence of any appellate decisions to the contrary.

Broader Implications of the West Virginia Opioid Reduction Act

The interaction between workers' compensation laws and the WV Opioid Reduction Act are potentially broader than just acupuncture and other alternative therapies. The recent decision from the Office of Judges contains language stating that any provisions of Rule 20 that conflict with the WV opioid statute are superseded by the Act and unenforceable.

This, of course, should apply only to cases where the claimant is suffering "chronic pain" as defined by the statute. If the claimant does not meet the definition of a person with chronic pain, the treatment guidelines in Rule 20 should still be applicable.

For more information on the West Virginia Opioid Reduction Act or your employees' workers' compensation benefits generally, contact Steven K. Wellman at Jenkins Fenstermaker, PLLC via his online contact form or call (304) 523-2100 in West Virginia or toll-free at (866) 617-4736.