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MONTANA SELF INSURERS' ASSOCIATION

Legislative Update 4/30/21 – Week 17  - It’s All Over

  • Detailed Legislative Wrap Up & Review Coming Next Week
  • Vaccine Status Anti-Discrimination HB 702
  • Marijuana – HB 701 & HB 655 to Go to Gov
  • Physician Dispensing SB 374 to Go to Gov
  • PBM Regulation SB 395 to Go To Gov

I was surprised at the speed at which the legislature wrapped up their work and adjourned. I saw how they were moving things through and still expected them to come back next week. I’m not in any way disappointed, just surprised. 

This was a session unlike any other.  It has been reported the legislature spent about $1 million to support the remote testimony and voting procedures used this year. On a personal level, based on the medical issues in my home, I appreciate the opportunity to participate without having the exposure of hundreds, if not thousands of people in a tight space. Even so, a number of staff, legislators and the public were exposed or tested positive for COVID and had to take precautions. 

It was also the first legislative session where the legislature and the Governor’s office were both controlled by the same party in some time. The Republicans, as a general rule, made the most of their mandate and addressed most of the things they wanted to get done. They addressed the issues they wanted to address, in some cases reversing the direction of the last 16 years of vetoes. Abortion, wildlife, LGBTQ, public education and private schools, guns, vaccines and local control, judicial appointments, taxes, infrastructure and voting integrity issues all saw action and in many cases were signed into law. This legislature also benefitted from what was termed a once in a lifetime budget opportunity as a result of the most recent COVID relief funding from the Federal government and projects such as broadband expansion that generated budget fights in the past, came to be this year. 

As for workers’ compensation issues - everything we wanted to happen, did.  Those proposals we opposed, were either acceptably changed or died somewhere in the process.  I will provide significant detail next week, but we were able to positively impact physician dispensing, the LMAC changes to agreed case re-opening medical documentation, increases to burial benefits, clarified internship WC coverage and the definition of prosthetics. At the same time, choice of physician, further presumptive or even guaranteed coverage for COVID or other diseases were killed. Thank you for your help and open communication on the issues. Your support and willingness to help made my job that much easier.

That being said, I don’t want to over-sell the session on our issues. This was not a big year for workers’ compensation – the system continues to see decreasing frequency and decreasing costs. Payroll is up, and we are seeing the beginning of what is expected to be a pretty robust economic recovery for the rest of the year. The lack of movement on the State Fund bills proposed to limit their ability to do business can be seen as a reflection that workers’ compensation is not a big issue at this time.

The Governor has 10 days to determine how to act on a bill, once he receives it. If no action is taken, the bill becomes law. Rather than inundate the Governor with bills, as a courtesy, the legislature typically releases bills slowly at the end of the session. This courtesy provides time to review and determine whether to sign or veto rather than being forced to take hasty action based on the 10 day deadline.

Spring has arrived in Montana and the legislature has gone home. Most of us would say all is right with the world.

Anti-Discrimination Based on Vaccine Status

Although not a workers’ compensation bill, HB 702 emerged and passed with surprising rapidity. The bill, received an amendatory veto, and then that language was approved by both chambers. The bill prohibits discrimination in employment practices based on vaccine status. Employers are permitted to recommend vaccinations but cannot mandate vaccinations for their workers. 

The bill does not limit vaccination status to COVID-19 vaccines but applies to any vaccines. It provides carve outs for school and day care facility vaccine requirements and based on the amendatory veto language, exempts licensed nursing homes, long-term care facilities or assisted living facilities from its’ standards. 

In an opinion piece published in the Great Falls Tribune on April 26, Rich Rasmussen, President and CEO of the Montana Hospital Association, an MSIA member, stated, “Current medical guidance and federal rules determine how healthcare organizations approach infection prevention in the healthcare setting for diseases like, hepatitis B, MMR, Varicella (chickenpox), DTaP (diphtheria, tetanus and pertussis), and Meningococcal.” He continued, “Healthcare workers are at risk for exposure to serious, and sometimes deadly, diseases. Protecting employees, patients, and community members by confirming vaccine status should remain an option for healthcare facilities.” Rasmussen concluded, “Lets be clear: if HB 702 passes, visitors will be severely limited from seeing their loved ones at a hospital or a nursing home. [This was prior to the amendatory veto language exempting nursing homes. - PS] Instead of turning the corner, we’ll see prolonged and indefinite continued use of masks by healthcare workers.” 

The amendatory veto language has been adopted by both chambers and the bill will be sent back to the Governor for his review. Based on adoption of his language, he can be reasonably expected to sign the new language into law. 

Marijuana

The main marijuana regulation bill passed and is expected to be signed by the Governor. Another bill, specifically addressing workers’ compensation and spurred on by the marijuana initiative also passed and is also expected to be signed. 

HB 655 (Buttrey R-Great Falls) changes the workers’ compensation law to specifically provide if an injured worker does not have a medical marijuana card and refuses or fails a drug test after an accident, there is a presumption that unauthorized drug use is the major contributing cause of the industrial accident. As a result, the injured worker would not be eligible for benefits.  

HB 701 (M. Hopkins R-Missoula) does not change the law regarding the current limitation on workers’ compensation paying for medical marijuana. The current language (MCA 39-71-407 (6)(c) provides that workers’ compensation insurers are not required to pay for medical marijuana to cover a debilitation condition. There is no change to this language. 

The bill regulates how the initiative passed by the electorate in November will be implemented by the Department of Revenue. Medical marijuana regulation will also be moved from DPHHS to DOR. Under the bill, counties that did not support the I-190 Initiative, will be required to hold another election to determine if they will permit recreational marijuana use in their jurisdictions. According to news reports, about half the counties opposed the initiative and the populous counties supported it. The bill wound up being supported by the Montana Cannabis Guild and conservation groups who were promised a share of the tax revenues raised by the initiative’s passage. Recreational use marijuana will be taxed at 20% and localities which permit it, can add a 3% tax of their own. The medical marijuana tax rate remains at 4%. 

Other Bills:

SB 374 (C. Smith R-Billings) – Physician Dispensing. This bill has passed and will be sent to the Governor who is expected to sign it. Montana is one of four or five states which does not permit general physician dispensing of prescription drugs. The bill, generated to support Direct Primary Care and to reverse that law, passed the Senate unanimously. MSIA, based on the agreement with the sponsor in the Senate Committee to amend the bill so that dispensing prescriptions for workers’ compensation treatments would continue to be prohibited, testified in favor of the bill. This issue is significant as a number of studies have demonstrated that physician dispensing of prescription drugs is tied to extended recoveries, longer durations, higher costs for drugs and higher indemnity benefit costs. The bill continues to prohibit physicians from dispensing opioids. 

SB 395 (Hertz R-Polson) – PBM Regulation. This bill has passed and will be sent to the Governor, who is expected to sign it. The bill provides further regulation of Pharmacy Benefit Managers and would require annual reports to their clients as well as the Insurance Department regarding prices and pricing. It is primarily aimed at health insurance and originally could have included workers’ compensation as health care coverage. In speaking with the CSI office, they want all PBMs in the state to be regulated. CSI and the sponsor have accepted a proposal to properly define workers’ compensation and to limit its’ application to Plan 2 and 3 policies only. 

SB 367 (Morigeau D-Missoula) This bill has passed and will be sent to the Governor, who is expected to sign it. The bill changes the independent contractor law so that the Department of Labor cannot automatically assume that absent an Independent Contractors Exemption Certificate, the person is an employee.  

MONTANA SELF INSURERS' ASSOCIATION

4/23/21 - LEGISLATIVE WEEK 16

  • Marijuana – HB 701 & HB 655
  • Physician Dispensing Set to Go To Gov
  • PBM Regulation to Senate for Concurrence with Amendments
  • Med Fee Schedule Changes
  • Rx Formulary Application to Legacy Claims
  • NCCI Virtual Annual Issues Symposium
  • MSIA Annual Mtg & Gov’s Conference 9/29 – 10/1

The legislature is winding down. Committee action is somewhat limited at this point because bills are at the point where they have to be acted on. If a bill has not yet cleared the Committee, it is likely not going any further. Action is now centered on the floor of both Chambers.  

At the end of last week a lobbyist was reported to have contracted COVID and while the individual was not named, it seems they are close with leadership. As a result, sessions for both last Friday and Monday of this week were cancelled, and two additional days were added to the end of the legislative calendar. If they do not “gavel in” the days do not count against the 90 they are permitted to meet. At this point, the legislature is calendared to end on May 13, if not sooner. 

Marijuana

As reported last week, one of the issues receiving significant attention from the legislature during these final days/weeks is marijuana. There are two primary bills affecting workers’ compensation, HB 701 (M. Hopkins R-Missoula), which is the primary marijuana enablement bill and HB 655 (Buttrey R-Great Falls). Both are attached. Both bills have passed the Senate Select Committee on Marijuana Law and will be considered by the full Senate. Particularly HB 701 has, and will continue to, generate lots of discussion. However, it is expected to pass the Senate, likely next week and be sent back to the House for concurrence in the Senate amendments. The same action is expected for HB 655.  

HB 655 changes the law to specifically provide if an injured worker does not have a medical marijuana card and refuses or fails a drug test then unauthorized drug use is presumed to be the major contributing cause of the industrial accident. As a result they would not be eligible for benefits.  

HB 701 does not change the law regarding the current limitation on workers’ compensation paying for medical marijuana. The current language (MCA 39-71-407 (6)(c) provides that workers’ compensation insurers are not required to pay for medical marijuana to cover a debilitation condition.  

I have attached the current versions of both bills, so you can see the entirety of the proposals. I have edited the language below to change legislative drafting directions to put the changes in context.  

Here is the language proposing to amend the workers’ compensation law from both bills, in context. All my changes are in [bolded and in brackets]. (new language is underlined, deleted language is struck  

39-71-407….[no changes to current law in either bill, until subsection (5). HB 655 amends (5) and HB 701 amends (6), starting on p. 108)]

(5) (a) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident. 

(b) For the purposes of this subsection (5), if an employee fails or refuses to take a drug test after the accident and if the testing procedures comply with federal drug testing statutes and administrative regulations applicable to private sector employers and employees as provided in Title 39, chapter 2, there is a presumption that the major contributing cause of the accident was the employee’s use of drugs not prescribed by a physician. 

(6) (a) An employee who has received written certification, as defined in [new law section 10 of HB 701, which defines who can prescribe medical marijuana], from a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d). 

(b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [section 15 SECTION 35 16-12-102] [16-2-102 defines the debilitating conditions for which medical marijuana is permitted to be prescribed], is the major contributing cause of the injury or occupational disease. 

(c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302 [section 15 11 SECTION 35 16-12-102]. 

(d) In an accepted liability claim, the benefits payable under this chapter may not be increased or enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [section 15 SECTION 35 16-12-102]. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of marijuana for a debilitating medical condition.

Other Legislative Action: 

HB 43 – (R. Knudsen R-Culbertson) – Telemedicine. This makes permanent some of the emergency provisions put in place during the pandemic shutdown supporting telemedicine. The Governor signed this bill on Monday 4/19.  

SB 374 (C. Smith R-Billings) – Physician Dispensing. Montana is one of four states which does not permit general physician dispensing of prescription drugs. The bill, generated to support Direct Primary Care and to reverse that law, passed the Senate unanimously. The House Business and Labor Committee heard testimony on the bill on Tuesday 4/13. MSIA, based on the agreement with the sponsor in the Senate Committee to amend the bill so that dispensing prescriptions for workers’ compensation treatments would continue to be prohibited, testified in favor of the bill. This is significant as a number of studies have demonstrated that physician dispensing of prescription drugs is tied to extended recoveries, longer durations, higher costs for drugs and higher indemnity benefit costs. The bill continues to prohibit physicians from dispensing opioids. The full House passed the bill on Thursday 4/22 and it will be sent to the Governor who is expected to sign the bill. 

SB 395 (Hertz R-Polson) – PBM Regulation. The bill provides further regulation of Pharmacy Benefit Managers and would require annual reports to their clients as well as the Insurance Department regarding prices and pricing. It is primarily aimed at health insurance and originally could have included workers’ compensation as health care coverage. In speaking with the CSI office, they want all PBMs in the state to be regulated. CSI and the sponsor have accepted a proposal to properly define workers’ compensation and to limit its’ application to Plan 2 and 3 policies only. With the agreed changes adopted the bill passed the Senate unanimously. The full House passed the bill, as amended, on Thursday 4/22. It will go back to the Senate for concurrence on the House amendments and is expected to pass. The Governor is also expected to sign this bill.  

HB 655 (Buttrey R-Great Falls) – Medical Marijuana (see above). This bill, as it relates to workers’ compensation, provides that if an employee fails or refuses to take a drug test after a workplace accident, there is a presumption that the major contributing cause of the accident was the employee’s use of drugs not prescribed by a physician. In that situation the employee is not eligible for workers’ compensation benefits.  

SB 367 (Morigeau D-Missoula) This bill changes the independent contractor law so that the Department of Labor cannot automatically assume that absent an Independent Contractors Exemption Certificate, the person is an employee. The bill was subject to clarifying amendments in the House Business and Labor Committee and has passed as amended. The full Senate has concurred in the House amendments and it will be sent to the Governor, who is expected to sign the bill.  

Med Fee Schedules Changes: NCCI Estimates an Increase of 1.4% to Costs

DOLI released their proposed July 1, 2021 medical fee schedule change and set a hearing for May 11. This was one of the two subjects for Monday’s (4/19) MSIA Update Extra.  

Attached is the NCCI estimate of the increased costs (Scenario 3) for this proposed change to be effective July 1, 2021. As the result is a change of less than 2% of the overall system cost we do not expect NCCI to make a special filing to reflect these changes. Instead as they have done with most, if not all, medical fee schedule changes since I’ve been in the Montana system, they will allow the results to flow through to the next regularly scheduled loss cost filing, expected to be made in late January, early February 2022. Please note: Scenario 3 represents the proposed medical fee schedule changes.  

From DOLI:

On May 11, 2021, at 10:00 a.m. the Department of Labor and Industry will hold a public video and telephonic hearing to consider proposed amendments for Montana Workers Compensation Medical Fee Schedules. Access information for the hearing is located in the Proposed Amendment. Follow this link to view the proposed rule amendment notice and proposed changes: Proposed Amendment 

Follow this link to view the Proposed Facility Fee Schedule and Instruction Set: http://erd.dli.mt.gov/work-comp-claims/medical-regulations/montana-facility-fee-schedule-agreement. 

Follow this link to view the Proposed Professional Fee Schedule and Instruction Set: https://mtwc.optum.com/

Formulary Application to Legacy Claims

The second subject of the Monday MSIA Update Extra was the advisory from the Employment Relations Division (ERD) of the Department of Labor and Industry (DOLI) regarding the drug formulary application to legacy claims. Based on the ERD advisory, the request not to apply the formulary to legacy claims during the pandemic has ended. With appropriate notice, the MT Drug Formulary can now be applied to legacy claims.  

Here is a link with more detail from the ERD website: https://erd.dli.mt.gov/work-comp-claims/medical-regulations/formulary. The application of the drug formulary to legacy claims was scheduled to go into effect April 1, 2020. Given the pandemic, ERD requested insurers and their representatives delay application of the formulary to legacy claims to help limit the impact it might have on the health care system. 

Drug Formulary Background  

A workers’ compensation drug formulary is the drug partner of a treatment guideline for workers’ compensation injuries. The Montana treatment guidelines were required by the reforms enacted in 2011. The formulary was required as a result of law change made in 2017. While a drug formulary does not prohibit legal drugs nor the length of time they may be prescribed, it does require a purposeful review and determination that use of some specific drugs is appropriate for specific claims. The Montana Drug Formulary for new claims went into effect January 1, 2019 and was effective for those claims as of April 1, 2019.  

In simple terms, some drugs are automatically approved as appropriate for claims. Some drugs require prior approval based on medical standards for use. In other states, formularies have been credited with improving patient outcomes and subsequently reducing workers’ compensation drug costs. Typically, formularies are applied to new claims, and a process of notification of application is provided for application to existing, or legacy, claims so that existing treatment plans can be reviewed and modified, if necessary.

As applied through the formulary if a drug is automatically approved, it is referred to as a “Y” drug. “N” drugs are those which require review and specific approval.   

Application of the Montana Drug Formulary to new claims was effective April 1, 2019. That has not changed. ERD’s notice last week provided that as of April 14, 2021, the drug formulary is applicable to the legacy claims. Specific 90 day notice to providers and injured workers is required to be provided before the formulary can be implemented on an individual legacy claim.  

If you would like another copy of the sample letters which can be used for notification of the formulary application to legacy claims for both the provider and injured worker, contact me. 

NCCI Virtual Montana State Advisory Forum & Virtual Annual Issues Symposium 5/11 & 12

After the approval of the annual NCCI loss cost filing, and typically after the Annual Issues Symposium, the local NCCI representatives host their State Advisory Forum (SAF) which reviews their perspective on state and national trends and system results. This year, all the SAF’s are virtual and every state is available to all, https://www.ncci.com/Articles/Pages/II_StateAdvisoryForums.aspx (click on the state you are interested in.) The presentations require registration but there is no cost for access to the information. The Montana presentation provides comparisons of MT system results to regional states and national averages. All 36 NCCI state reports are available.

NCCI is also hosting their second virtual Annual Issues Symposium (AIS) on May 11, from 10:45a – 2p Mountain time and May 12 from 10:45a – 1:15p Mountain time. Registration is required and is free. https://www.ncci.com/Articles/Pages/II_AIS2021-Registration.aspx. I have been to a number of AIS meetings in person, and attended last year’s hurriedly put together virtual meeting representing MSIA. The information is good, providing NCCIs perspective on national results and forecasts, as well as some of their most recent research and guest speakers that are typically worth the time. There is no substitute for in-person attendance as there are 600 or so workers’ compensation stakeholders in attendance from everywhere in the country.  

Save the Dates: MSIA Ann Meeting 9/29 – Governor’s Conference 9/29 – 10/1

The MSIA Business & Annual Meeting and the Governor’s Conference will be held in West Yellowstone 9/29 – 10/1. Room packages have not yet been made available so there is nothing to announce on that front yet, but save the dates for what is planned to be an in-person event. Guest speakers for the Governor’s Conference are set to include Jennifer Wolf, Executive Director of the IAIABC (the workers’ compensation regulators association), Montana Workers’ Compensation Court Judge David Sandler and others involved with Montana law and the workers’ compensation system. As this is the first Governor’s Conference with a new Governor in 8 years, we also expect some of the new leaders in the administration to attend as well.  

MSIA will hold our Annual & Business Meetings on the morning of September 29, in conjunction with the Governor’s Conference start later that day. The MSIA meetings will start at 8:30a with our Business meeting to go over any changes needed to our bylaws, election of officers and adopt our proposed budget for the following year. At 9:00a we will welcome non-members to join us to hear from a nationally recognized guest speaker to provide their perspectives and updates regarding workers’ compensation.  

MONTANA SELF INSURERS' ASSOCIATION

4/16/21 - LEGISLATIVE WEEK 15

  • Increased Diagnosis of Post COVID Neurologic or Psychiatric Issues – Univ of Oxford
  • OSHA Postpones Issuing COVID Emergency Temporary Standards 
  • Physician Dispensing SB 374 and PBM Regulation SB 395 Pass House Committee 
  • Prosthetics Definition HB 446 Signed by Governor
  • Drug Test Refusal/Failure = No Benefits HB 655 & Other Marijuana Bills to See Action Next Week 
  • Telemedicine HB 43 To Governor

Increased Diagnosis of Post COVID Neurologic or Psychiatric Issues – Univ of Oxford

A University of Oxford study of over 236,000 patients’ electronic records in Britain identified an increase in neurologic of psychiatric diagnoses, many with their first diagnosis of such concerns, six months after COVID recovery. The results of the study were first published in The Lancet Psychiatry. The control group included those with influenza and those who had other respiratory tract infections, including influenza and excluding those who had tested positive for COVID. Results were more common for those who had severe COVID cases, requiring Intensive Threapy Unit care than those with mild cases. The Lancet Psychiatry article is attached to this email.  

The authors note more research is needed and their study is hampered by the fact that it is a review of electronic records. As such, there is no confirmation of the completeness of the records, no validation of the diagnoses and little information on the socio-economic and lifestyle factors which may play a part. Regardless, the Lancet article on the study concludes, “In summary, the present data show that COVID-19 is followed y significant rates of neurological and psychiatric diagnoses over the subsequent 6 months.”  

For me, the upshot of this study, and others I have reported on, is there is a lot we don’t know yet about the longer-term effects of COVID-19. The Montana legislature did not follow other states in providing a COVID coverage presumption for front line and first responders. Before our session started in January, about 20 states either by statute or Executive Order did. Since that time, a number of other states have enacted such laws but the Montana legislature chose not to. As we learn more about the longer-term impacts, I suspect we will learn more about how smart that decision was.

OSHA Postpones COVID Emergency Temporary Standards 

In an announcement this week, the Occupational Safety and Health Administration of the US Department of Labor (OSHA) has delayed enactment of Emergency Temporary Standards (ETS) for COVID protections in workplaces. There is some feeling that OSHA is trying to avoid having to implement an ETS, in hopes COVID-19, with the vaccines available will not be a long-term safety issue in the workplace. I have been told that OSHA has implemented ETS’s about four times in its’ history and three of those times it has gone very poorly. Most business leaders do not have an issue with the postponement. If OSHA puts in place a COVID-19 ETS business will have to comply with what-ever standards there might be, unless it is stayed by a Court.  

In addition, OSHA has issued an National Emphasis Program (NEP), effective March 12, 2021, for their inspectors to include COVID precautions in their inspections. Since there are no national guidelines for the inspectors to use, it is expected they will look to standards that have been provided by local health departments, should they conduct an inspection and include COVID protection as part of that inspection. As an NEP, not all inspections will require a review of the implementation of those standards. 

Legislative Action

The legislature has passed HB 2, which is the budget bill. In most years, that legislation occupies a GREAT amount of space. This year, with the most recent stimulus package provided by the federal government, the focus is what to do with that $2.1 billion the state will get from the feds. HB 632 is the vehicle for spending that money.

Marijuana

The other issue that is taking up a lot of space is enactment of legislation and providing regulatory guidance on how to implement I-190, the recreational marijuana initiative which passed in November. One thing the legislature seems to agree on is they do not want it enacted as it was passed. And, in fairness, the initiative language does not provide many side-boards on some important questions.  

This week the Senate Select Committee on Marijuana Law started hearings on the current marijuana regulation and implementation bills. The Committee is charged with coming up with the language to provide implementation side-boards and regulatory direction. One of the sticking points is how to distribute the tax revenues generated by the initiative. One of the sweeteners in the language was direction of some of the funds to go towards conservation efforts. The initiative provided a 20% state tax on recreational marijuana and, “10.5% of the tax revenue goes to the state general fund, with the rest dedicated to accounts for conservation programs, substance abuse treatment, veterans’ services, healthcare costs, and localities where marijuana is sold.” The initiative specified a percentage of collected tax revenues to be use for non-game wildlife, state parks, trails and recreational facilities and wildlife habitat, in addition to the other programs identified.  

Some claim the only the legislature has the authority to determine how to spend state funds. With an additional $48 million expected, some in the legislature have ideas about how to allocate those monies. Others say the initiative should drive those decisions.  

In addition, the legislature will be addressing how counties may either opt-in or opt-out of permitting recreational marijuana to be sold within their jurisdictions and if permitted, what maximum level of taxes they may provide. 

Regardless, based on what other states have learned since recreational marijuana has become legal, there is a lot of work to be done. It is no-where near as simple as letting the medicinal marijuana shops just sell recreational marijuana as well. Details about:

  • regulating marijuana versus hemp which has become a viable crop in Montana, 
  • whether to allow “home grows” which can impact neighbors and neighborhoods in different ways, whether to permit outdoor or to limit growing facilities to indoor, locked facilities (imagine marijuana plants growing in your neighbors’ yard – wouldn’t that attract amateur harvesters during the night?) and 
  • how much an individual can buy in a day, or have in their possession at one time (let alone how much a harvester would be permitted to have at one time) 

are all issues that will be dealt with.  

How we implement will be very important and can have an impact on the strength, or weakness of the black market. The legislature will likely take action next week on how to implement the new law.  

As far as workers’ compensation is concerned, one bill, HB 655 (Buttrey R-Great Falls) addresses the issue directly. This bill, as it currently stands, provides that in the absence of a medical marijuana card, if after an industrial accident, the injured worker refuses or fails a drug test, there will be a presumption that unprescribed drugs were the major contributing cause of the accident and there will be no benefits due as a result of the accident. The bill has passed the House and was heard in the Senate Select Committee on Tuesday 4/13, and is likely to be voted on by the Committee next week.  

Other bills: 

SB 374 (C. Smith R-Billings) – Physician Dispensing. Montana is one of four states which does not permit general physician dispensing of prescription drugs. The bill, generated to support Direct Primary Care and to reverse that law, passed the Senate unanimously. The House Business and Labor Committee heard testimony on the bill on Tuesday 4/13. MSIA, based on the agreement with the sponsor in the Senate Committee to amend the bill so that dispensing prescriptions for workers’ compensation treatments would continue to be prohibited, testified in favor of the bill. This is significant as any number of studies have demonstrated that physician dispensed drugs are tied to extended recoveries longer durations, higher costs for drugs and higher indemnity benefit costs. The bill also continues to prohibit physicians from dispensing opioids. The Committee voted the bill out and on to the House floor on Thursday 4/15. The bill is expected to pass the House and to be signed by the Governor.  

SB 395 (Hertz R-Polson) – PBM Regulation. The bill provides further regulation of Pharmacy Benefit Managers and would require annual reports to their clients as well as the Insurance Department regarding prices and pricing. It is primarily aimed at health insurance and originally could have included workers’ compensation as health care coverage. In speaking with the CSI office, they want all PBMs in the state to be regulated. CSI and the sponsor have accepted a proposal to properly define workers’ compensation and to limit its’ application to Plan 2 and 3 policies only. With the agreed changes adopted the bill passed the Senate unanimously. The bill was heard in the House Business and Labor Committee on Wednesday, 4/14 with minimal opposition, and passed the committee unanimously the next day, 4/15. It will now go to the House floor where it is expected to pass. The Governor is also expected to sign this bill.  

HB 446 – (Marshall R-Hamilton) – Defines Prosthetics in Workers’ Compensation. The bill was signed by the Governor on Thursday 4/14 and will become statutory law (the language has been case law since 2001). MSIA worked with both the House sponsor and the Senate floor sponsor to make sure this bill passed without amendment.  

HB 655 (Buttrey R-Great Falls) – Medical Marijuana (see above). This bill, as it relates to workers’ compensation, provides that if an employee fails or refuses to take a drug test after a workplace accident, there is a presumption that the major contributing cause of the accident was the employee’s use of drugs not prescribed by a physician. In that situation the employee is not eligible for workers’ compensation benefits. The bill was heard by the Senate Select Committee on Marijuana Law on Tuesday 4/13 and is waiting further action by the Committee.  

HB 43 – (R. Knudsen R-Culbertson) – Telemedicine. This makes permanent some of the emergency provisions put in place during the pandemic shutdown supporting telemedicine. This bill has also been sent to the Governor, who is expected to sign the bill.  

SB 367 (Morigeau D-Missoula) This bill changes the independent contractor law so that the Department of Labor cannot automatically assume that absent an Independent Contractors Exemption Certificate, the person is an employee. The bill was subject to clarifying amendments in the House Business and Labor Committee and has passed as amended. It has gone back to the Senate for concurrence on the House amendments which is expected to happen.  


MONTANA SELF INSURERS' ASSOCIATION

4/9/21 - Legislative Week 14

  • Physician Dispensing SB 374, To House Committee
  • Drug Test Refusal/Failure = No Benefits HB 655 to Senate Committee
  • Prosthetics Definition HB 446 To Governor
  • Telemedicine HB 43 To Governor
  • PBM Regulation SB 395 As Amended To House Committee


To review prior Legislative Weekly reports, check out the Members Only Section of our website - Montana Self Insurers' Association

Legislative Action   

Since the legislature has not regularly met on Saturday this year (which has pleased some of us), the legislative calendar has been extended. The last day of session is now set for May 11, instead of May 1. Workers’ compensation legislation has not been a high priority for discussion this session. All the bills MSIA has opposed, have died and all those MSIA needed to see amended have been and most of them have already passed and been signed into law. The remaining few are still somewhere in the process and are expected to be passed and signed.   

SB 374 (C. Smith R-Billings) – Physician Dispensing. Montana is one of four states which does not permit general physician dispensing of prescription drugs. The bill, generated to support Direct Primary Care and to reverse that law, passed the Senate unanimously and has been assigned to the House Business and Labor Committee. The Committee will hear the bill on Tuesday, 4/13. MSIA worked with Senator Smith and MSF to amend the bill to maintain the law as it is regarding workers’ compensation treatments – that is to exclude workers’ compensation treatments from being eligible for physician dispensed drugs. This is significant as any number of studies have demonstrated that physician dispensed drugs are tied to extended recoveries, longer durations, higher costs for drugs and higher indemnity benefit costs. The bill also continues to prohibit physicians from dispensing opioids. With the amendments requested by MSIA and others, we will testify in favor of passage of the amended bill. 

HB 655 (Buttrey R-Great Falls) – Medical Marijuana. This bill, as it relates to workers’ compensation, provides that if an employee fails or refuses to take a drug test after a workplace accident, there is a presumption that the major contributing cause of the accident was the employee’s use of drugs not prescribed by a physician. In that situation the employee is not eligible for workers’ compensation benefits. The bill was assigned to the Senate Business, Labor and Economic Affairs Committee. Expect a hearing to be set sometime next week.

HB 446 – (Marshall R-Hamilton) – Defines Prosthetics in Workers’ Compensation. MSIA worked with both the House sponsor and the Senate floor sponsor to make sure this bill passed without amendment. This bill has been sent to the Governor’s office where he is expected to sign it. 

HB 43 – (R. Knudsen R-Culbertson) – Telemedicine. This makes permanent some of the emergency provisions put in place during the pandemic shutdown supporting telemedicine. This bill has also been sent to the Governor, who is expected to sign the bill. 

SB 395 (Hertz R-Polson) – PBM Regulation. The bill provides further regulation of Pharmacy Benefit Managers and would require annual reports to their clients as well as the Insurance Department regarding prices and pricing. It is primarily aimed at health insurance and originally could have included workers’ compensation as health care coverage. In speaking with the CSI office, they want all PBMs in the state to be regulated and they, and the sponsor have accepted a proposal to properly define workers’ compensation and to limit its’ application to Plan 2 and 3 policies only. With the agreed changes adopted the bill passed the Senate unanimously and has been assigned to the House Business and Labor Committee and they will hold a hearing on it on Wednesday, 4/14. MSIA will monitor the bill.     

SB 367 (Morigeau D-Missoula) This bill changes the independent contractor law so that the Department of Labor cannot automatically assume that absent an Independent Contractors Exemption Certificate, the person is an employee. The bill was subject to clarifying amendments in the House Business and Labor Committee and has passed as amended. It will now go back to the Senate for concurrence on the House amendments. 

WCRI Annual Meeting – The Future of Work

In the last of my reports on the Workers’ Compensation Research Institute’s (WCRI) virtual Annual Meeting reports, today I review the conversation between WCRI President and CEO John Ruser, and Dr. John Howard who is serving an unprecedented third term as the Director of the National Institute of Occupational Safety and Health (NIOSH) regarding the safety and health implications based on the Future of Work. 

This was a conversation about how our work and work environments would look going forward, and what that means for workers and employers. Howard cited a University of Houston approach commonly referred to as Strategic Foresight as a way of attempting to predict the future, preparing for the future and setting up scenarios for the future based on snippets of information. 

As an example, NIOSH is looking at what increased assistive and replacement technologies might mean to all of us from a work, safety and health perspective. 

The difference between assistive and replacement technologies is exemplified by the differences between a desktop computer, an assistive device which we largely did not have in our workplaces in the 80’s, and an drone sent into a confined work-space to measure air quality and ventilation. While a replacement, the drone measurements still require human intervention to interpret their meaning and response. Along those lines, Howard spent some time discussing the idea of technological job displacement. In looking at the statistics going back to WW II, there are 60% more jobs now, than there were in the past. He cited the people dedicated to supporting the virtual conference as examples of jobs that did not exist, even just before the pandemic shutdown. Who had heard of Zoom before March 2020? 

As well, we can relatively easily expect more people to continue to work from remote locations – like home – than before the pandemic hit. As we re-open offices we will continue to have in-person meetings. Like the real estate expression about location, “proximity” will become the watchword for employers. Howard stated, “proximity of workers to each other is going to be numbers one, two and three in importance.” We will have more social distancing, physical barriers and the need for interactive live and virtual participants in meetings. Once workers come back to the office and start working with each other, employers are going to have to look at their ventilation systems and limiting public spaces like never before. Infection control is now a priority for employers, and Howard noted, for those not in the health care industry that may be a challenge.  

For those who continue to work from home as more of the norm, Howard identified a concern for the potential increase in cumulative trauma disorders. Just after shutdown, there was a significant decrease in the BLS data on cumulative trauma injuries in the workplace. However, as we continue, what will be the result of working from home, which provides less ergonomic support than our offices? 

More detail and information regarding the different aspects of the NIOSH Future of Work effort can be found at Future of Work Initiative | NIOSH | CDC. 

  • Legislative Update
  • Marsh & McLennan Buys PayneWest
  • JAMA: Study Finds Health Care Professionals May be More Likely to Contract COVID from Community Exposure than Work
  • WCRI Annual Meeting – Off Label Prescribing and Opioid Policy Impacts
  • NCCI MT State Advisory Forum and Annual Issues Symposium


MONTANA SELF INSURERS' ASSOCIATION

4/2/21 - Legislative Week 13

  • Physician Dispensing SB 374, As Amended, Passes 2nd Reading
  • Drug Test Refusal/Failure = No Benefits HB 655 Passes House
  • Intern Bill HB 283 Signed into Law
  • Burial Benefit HB 198 Signed into Law
  • Telemedicine HB 43 House Concurs in Senate Amendments
  • PBM Regulation SB 395 – Amendment Proposed to Apply to WC Plan 2 & 3 Only

To review prior Legislative Weekly reports, check out the Members Only Section of our website - Montana Self Insurers' Association

Legislative Action   

SB 374 (C. Smith R-Billings) – Physician Dispensing. (See also the report on the WCRI Annual Meeting Presentation on Opioid Policy Impacts) Montana is one of four states which does not permit general physician dispensing of prescription drugs. The bill, generated to support Direct Primary Care and to reverse that law, was supported by a number of physicians, the MT Medical Association and the MT Pharmacy Association. With the pharmacists supporting the legislation, there is little opportunity to stop the change from happening this time around. The only registered opposition came from MSIA, MSIA member MT School Boards Association and MSF. MSIA worked with Senator Smith and MSF to amend the bill to maintain the law as it is regarding workers’ compensation treatments. The bill now excludes workers’ compensation treatments from being eligible for physician dispensed drugs and the amended version passed second reading yesterday, 4/1, unanimously. It is likely to finally pass the Senate today. The bill also continues to prohibit physicians from dispensing controlled substances (opioids). 

HB 655 (Buttrey R-Great Falls) – Medical Marijuana. This bill, as it relates to workers’ compensation, provides that if an employee fails or refuses to take a drug test after a workplace accident, there is a presumption that the major contributing cause of the accident was the employee’s use of drugs not prescribed by a physician. In that situation the employee is not eligible for workers’ compensation benefits. The bill passed the full House yesterday, 4/1 and now goes to the Senate for consideration. 

HB 198 (Harvey D-Butte) - Burial Benefits. This bill has been signed into law by the Governor. The new law increases the burial benefit in the workers’ compensation system from the current maximum of $4000, which is relatively low in comparison to other states, to up to $10,000 which is where at least 20 other states are.   

HB 283 (F. Anderson R-Great Falls) - Interns WC Coverage. This bill has been signed into law by the Governor. The new law clarifies how to address paid and unpaid interns within the workers’ compensation system. MSIA and individual members worked with the sponsor to create amendments to confirm the law will be limited to its’ intent, will not increase employers’ costs and will support internship programs as training for the next generation of our work force. 

HB 446 – (Marshall R-Hamilton) – Define Prosthetics in Workers’ Compensation. MSIA worked with both the House sponsor and the Senate floor sponsor to make sure this bill passed without amendment. This bill passed the Senate this week and will be sent to the Governor’s office where he is expected to sign it. 

HB 43 – (R. Knudsen R-Culbertson) – Telemedicine. This bill has also passed the Senate, with amendments and the House has unanimously agreed to the changes. It will next go to the Governor, who is expected to sign the bill. 

SB 395 (Hertz R-Polson) – PBM Regulation. Senator Hertz was the Speaker of the House last session and is carrying this bill for the Commissioner of Securities and Insurance Troy Downing. The bill requires Pharmacy Benefit Managers to be regulated and provide annual reports to their clients as well as the Insurance Department. It is primarily aimed at health insurance and originally included language which could have included self-insurance workers’ compensation. In speaking with the CSI office, they want all PBMs in the state to be regulated and they, and the sponsor have accepted a proposal to limit workers’ compensation to Plan 2 and 3 only. This was a technical issue within the law, as originally, the language might have been interpreted to include workers’ compensation medical benefits as health care treatments. With the agreed changes, the application to workers’ compensation is clear and is limited to Plan 2 and 3 coverage. MSIA will monitor the bill to confirm the changes agreed to are accepted.     

SB 367 (Morigeau D-Missoula) This bill changes the independent contractor law so that the Department of Labor cannot automatically assume that absent an Independent Contractors Exemption Certificate, the person is an employee. The bill was subject to clarifying amendments in the House Business and Labor Committee and passed as amended on Friday, 3/19. It now goes to the House floor for consideration. 

Marsh & McLennan Buys PayneWest

There are no details yet, but news broke late this afternoon that Marsh & McLennan, part of an international brokerage firm has purchased PayneWest. This is likely to lead to some changes in our market and the market in the northwest. 

JAMA: Study Finds Health Care Providers May be More Likely to Contract COVID from Community, Versus Work

Last week WorkersCompensation.com reported on a new study published by The Journal of the American Medical Association (JAMA) Network which identified that of the almost 25,000 health care professionals studied, they were more likely to contract COVID through their community exposures than their work related exposures. The results “suggest that for HCP [Health Care Professionals], the risk of SARS-CoV-2 infection from community exposures may exceed the risk from patient exposures, especially considering that these finding were estimated across diverse geographic areas and health care systems.” 

The study followed HCP from Emory Healthcare in Atlanta, Johns Hopkins Medicine in Baltimore, University of Maryland Medical System in Baltimore and Rush University System in Chicago. The authors also recognize that before we take this information as gospel, more research is necessary, pointing out that the results were consistent with some studies and conflicting with others. Here’s the link to the JAMA report on the study: [Link]

WCRI Annual Meeting – Off Label Prescribing and the Effects of Opioid-Related Policies

The use of opioids in claims is down significantly since 2015 – down from opioids being prescribed in 21% of claims to 8% of claims in 2020 based on the WCRI study of 28 states. As you know, in our business when you push on one side of the balloon, for example reducing opioids, the other side of the balloon gets pushed out. There is no direct connection between the decrease in the use of opioids in comp systems to the increase in the use of topical analgesics and gabapentinoids, other than time. While the use of topical analgesics and gabapentinoids is not necessarily evidence based, their use in comp systems has increased noticeably, with some states really standing out. According to WCRI, physician dispensed dermatologicals account for 20% of drug payments in FL, GA, IL, MD, SC and VA. (Note: The Lidocaine is not a permitted drug within the MT workers’ compensation system.)

MSIA Comment - For the Montana system, this points to the importance of MSIA’s work to amend SB 374 (see above) to prohibit physician dispensing as part of workers’ compensation treatments. Montana is currently one of a four states which general prohibitions on physician dispensing. We have fought the legislative battle to over-turn that law for a number of years based on WCRI, CWCI and other studies which demonstrate within the workers’ compensation system physician dispensing is related to longer recovery times, longer claim durations and higher costs. For workers’ compensation treatments, as a result of the amendment in effect the law remains as is. 

WCRI also reported on their upcoming study on the potential effects of opioid-related policy implementations. MT was not one of the states studied, we have not enacted some of the recommended public policy recommendations nor have we had the issues other states, which permit physician dispensing, have had. Our opioid use issues are serious enough, but we have not necessarily seen the issues other states have. 

The public policy actions studied to limit opioid use have included:

o  Must-Access Prescription Drug Monitoring Programs

o  Limits on Initial opioid prescriptions

o  Pain Treatment Guidelines

o  Prescriber education, and

o  Drug Formularies

WCRI found that the required access of the PDMP did contribute to reduced opioid use – significantly in low back and soft tissue injuries. There is also some evidence of alternative care increases. (Note – Lidocaine is not a permitted drug within the MT system). And, interestingly, WCRI found that limits on initial opioid prescriptions increased the likelihood of a prescription for some injuries. 

WCRI is hosting a webinar on April 22, at 12 Mountain time on its study, Early Predictors of Longer-Term Opioid Dispensing. There is a $50 charge for participating in the webinar. 

NCCI Releases Virtual Montana State Adivisory Forum – Virtual Annual Issues Symposium 5/11 & 12

After the approval of the annual NCCI loss cost filing, and typically after the Annual Issues Symposium, the local NCCI representatives host their State Advisory Forum (SAF) which reviews their perspective on state and national trends and system results. This year, all the SAF’s are virtual and every state is available to all, [Link] (click on the state you are interested in.) The presentations require registration but there is no cost for access to the information.   

As reported earlier, NCCI filed and received approval of an overall -14.6% loss cost decrease for Montana effective July 1, 2021. The Montana SAF presentation goes into more detail regarding the information and data supporting their filing. In addition, the Montana presentation provides comparisons of MT system results to regional states and national averages. All 36 NCCI state reports are available.

NCCI is also hosting their second virtual Annual Issues Symposium (AIS) on May 11, from 10:45a – 2p Mountain time and May 12 from 10:45a – 1:15p Mountain time. Registration is required and is free. [Link]. I have been to a number of AIS meetings in person, and attended last year’s hurriedly put together virtual meeting representing MSIA. The information is good, providing NCCIs perspective on national results and forecasts, as well as some of their most recent research and guest speakers that are typically worth the time. There is no substitute for in-person attendance as there are 600 or so workers’ compensation stakeholders in attendance from everywhere in the country. 

Know of something I should be aware of, or have questions - - don’t hesitate to contact me. Happy Easter everyone!