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The Department of Industrial Relations’ Division of Workers’ Compensation has issued modified proposed regulations to adopt the Medical Treatment Utilization Schedule (MTUS) Drug Formulary. The proposed rulemaking implements Assembly Bill 1124 (Statutes 2015, Chapter 525), which mandates adoption of an evidence-based drug formulary.

DWC has reviewed comments received during the first 15-day comment period and has modified the proposed regulations to provide additional detail and clarity. The second 15-day public comment period will end September 22, 2017. Members of the public may submit written comments on the proposed regulations until 5 p.m. that day.

Some of the changes proposed in the revised regulations include:

– Added language clarifying that a compounded drug is subject to the compounded drug regulation even if it includes an active ingredient listed as “Exempt” on the MTUS Drug List. This modification improves the clarity; it is expected to avert the possibility that someone could argue that a compounded drug using one of the listed drugs is “Exempt.”

– Removed a provision relating to repackaged drugs. The current structure of the MTUS Drug List does not require identification of a drug’s status as repackaged. In the future, after further evaluation, the Division may address repackaged drugs, and may determine whether particular provisions of the Formulary and MTUS Drug List are needed to address issues raised by use of repackaged drugs.

– Updated MTUS Drug List header text to match the regulatory language on the Perioperative period definition. It now states that the perioperative fill period begins 4 days, rather than 2 days, before surgery. This conforms the perioperative period to a modification in the text of section 9792.27.13, subdivision (b), that was made in the 1st 15-day comment period, but mistakenly overlooked on the drug list introductory language. This change appears to be the result of public comments made by Denise Algire with Albertson’s companies according to the transcript of her comments on page 6.

The notice of modification of text of proposed regulation and related rulemaking documents are posted on the DWC rulemaking web page. More information about the rulemaking process is posted on the Office of Administrative Law’s website.