National Council on Compensation Insurance (NCCI) Annual Updates on State Workers Comp Regulations and Legislation

More state legislatures propose PTSD bills; in most states marijuana reimbursement is NOT required and more states are considering legalizing hallucinogens. This information is from the 2023 Regulatory and Legislative Trends Report, National Council on Compensation Insurance (NCCI).

Mental Injury-Related Legislation

NCCI monitored 86 bills addressing workers compensation for workplace-related mental injuries. This included 71 bills related to post-traumatic stress disorder (PTSD). While this has been a hot topic in workers compensation for several years, NCCI identified more bills this year addressing coverage for PTSD--primarily for first responders--than in previous years.

The majority of the mental injury bills were specific to first responders. However, some states considered legislation to expand coverage to additional types of workers, and Connecticut enacted legislation expanding eligibility for workers compensation benefits for post-traumatic stress injuries to all employees covered by the workers compensation law.

In addition to Connecticut, other states including Idaho, Missouri, Nevada, Tennessee, Texas, Virginia, and Washington enacted legislation addressing compensability for workplace-related mental injuries. These bills established workers compensation coverage for PTSD and/or other psychological injuries, expanded coverage for mental injuries to additional types of employees, and created a presumption of compensability for PTSD:

Marijuana Reimbursement

State legislatures continue to debate the issue of reimbursement for marijuana as a workers compensation treatment. This year, most of the state proposals to legalize marijuana contained provisions that reimbursement for workers compensation is NOT required. To date, Kentucky is the only state to enact legislation this year addressing marijuana reimbursement. Kentucky enacted SB 47, which legalizes the medical use of marijuana and provides that nothing in the new law requires a workers compensation carrier or self-funded employer providing workers compensation benefits to reimburse a person for costs associated with the medical use of marijuana.

North Carolina (SB 3) and Pennsylvania (SB 846) are considering legislation with similar provisions.
However, legislation is pending in Massachusetts (H 1949) and Pennsylvania (HB 1079) that would allow reimbursement for medical marijuana in workers compensation. New York is considering legislation (A 4713/S 2568) that would deem medical marijuana a prescription drug for workers compensation purposes.

These states considered, but have not passed, legislation providing that workers compensation insurers are not required to reimburse for medical marijuana:

• Idaho introduced H 370 to legalize medical marijuana. The bill included a provision stating that nothing in the new law requires an insurer, a third-party administrator, or an employer to pay for or reimburse medical marijuana.
• Kansas introduced multiple bills (HB 2417, SB 135, SB 310) to legalize medical marijuana. These bills included provisions stating that nothing in the new law would require workers compensation insurers or self-insured employers providing workers compensation benefits to reimburse a person for costs associated with the medical use of marijuana; nothing will affect an employer’s ability to implement policies to promote workplace health and safety by restricting the use of marijuana by employees.
• Nebraska introduced LB 588 to legalize medical marijuana. The bill includes language that nothing in the act requires an employer to permit or accommodate the growing, possession, consumption, use, distribution, display, transfer, transportation, or sale of marijuana; affects the ability of an employer to restrict the use of marijuana by employees; requires any employer to accommodate the medical use of marijuana; or requires any employer or workers compensation insurer to reimburse a person for costs associated with the medical use of marijuana.

Hallucinogens and Psychedelics

This year, NCCI monitored a new trend in some states regarding the legalization of certain substances, including lysergic acid diethylamide (LSD), mescaline, psilocybin, peyote, and certain natural plant or fungus-based hallucinogens. Colorado and Oregon have legalized psilocybin in recent years. While these bills generally do not directly impact workers compensation, states are beginning to explore the use of these substances as potential treatment for certain medical and mental health conditions including PTSD.

In 2023, 11 states proposed legislation to legalize certain substances: California (SB 58), Connecticut (HB 5102), Massachusetts (S 1009), Montana (HB 955), New Hampshire (HB 328), New Jersey (A 4911/S 2934), New York (A 114/S 3520), Rhode Island (H 5923), Utah (SB 200), Virginia (HB 1513), and Washington (SB 5263).

In Connecticut (HB 5102), Montana (HB 955), and Virginia (HB 1513), the legislation would have allowed use of these substances to treat certain medical and mental health conditions such as PTSD, anxiety, and depression. However, the bills did not advance.

California SB 58 passed the Senate and is pending in the Assembly Appropriations Committee. The bill would legalize the possession, preparation, obtaining, transfer, or transportation of specified quantities of psilocybin, psilocyn, dimethyltryptamine, ibogaine, and mescaline, for personal use or facilitated or supported use, by and with adults 21 and older.

Utah SB 200 would have authorized the production and medical use of psilocybin in the state and provided that a licensed and admitted workers compensation insurer may issue coverage to a psilocybin production establishment. This legislation did not advance.

Washington enacted SB 5263 that requires a healthcare authority to establish a psilocybin task force to provide a report on psilocybin services to the governor and legislature by December 1, 2023, and requires the University of Washington Department of Psychiatry and Behavioral Sciences to establish and administer a psilocybin therapy services pilot program by January 1, 2025.

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